Fixed Ops Journal - August 2016 - (Page 8)

FIXED OPS JOURNAL LEGAL LANE ■ Store showed 'anti-union animus' toward techs D ealers, be careful what you say and do if your service technicians try to form a union. That's the guidance from a federal appeals court that rejected a Florida dealership's challenge to unfair labor practices charges. Mercedes-Benz of Orlando was accused by the International Association of Machinists and Aerospace Workers of anti-union activities, including firing a technician because of management's "anti-union animus" and refusal to bargain after a successful unionization election, according to the court. The union filed the complaint with the National Labor Relations Board. In May, the 7th U.S. Circuit Court of Appeals refused to reconsider its earlier decision that the dealership and its parent company, AutoNation Inc., engaged in "a series of unfair labor practices aimed at coercing their employees' choices in the run-up to a December 2008 election and frustrated their employees' protected concerted activities after the election." The dealership and AutoNation did not seek U.S. Supreme Court review of the appeals court decision, said their lawyer, Steven Bernstein of Tampa. The dealership's service department employed 37 technicians in summer 2008 when the union launched its organizational campaign, the court said. That fall, the general manager of the dealership called technicians individually into his office and asked about union activity, the decision said. An AutoNation vice president "who led the company's opposition to the union" and the general manager held group meetings and distributed material to "'educate' the technicians on the effects of having a union." Meanwhile, the service department, citing "tough economic times," laid off a leader of the union campaign and other technicians about a week before the election, the court said. After the union won the election, the dealership and AutoNation refused to bargain about layoffs, pay cuts in the book rate for prepaid maintenance jobs and the suspension of technician skill level reviews used to determine pay rates. The court added that "without bargaining, the dealership laid off four more service technicians in April 2009." The court upheld a National Labor Rela- PAGE 8 AUGUST 2016 tions Board order that awarded back pay and benefits to the fired and laid-off technicians and required the dealership to offer to reinstate them, among other remedies. ■ Claim of negligent fix could cost dealership A dealership that may have performed recall work negligently could find itself liable for resulting damages, an appeals court in New York has ruled. A three-judge panel of the Appellate Division of the New York Supreme Court has reinstated a lawsuit that accuses the former Hassett Lincoln-Mercury Sales Inc., in the Long Island community of Wantagh, of negligently carrying out recall service on a 1996 Lincoln Town Car. The dealership is now called Hassett Ford-Lincoln. The dealership failed to warn the owner, Halina Darrow, that the safest step would be to disconnect the car's cruise control system permanently, the suit alleges. Hassett Lincoln-Mercury had sold Darrow the vehicle new and had done almost all of its service. The dealership denies any negligence. In 2007, the owner received a recall notice stating that a solenoid switch in the cruise control system might cause a fire under the car's hood, even when its engine was off, according to the court decision. On an initial service visit in September 2007, replacement parts were unavailable, so the shop disconnected the switch. Darrow returned in February 2008, when the dealership installed a replacement switch and wiring. "Despite this service, in October 2009 a fire ignited in the engine compartment of the vehicle while it was parked in the owner's garage, causing extensive damage to the home, the garage and the vehicle itself," the appeals court ruling said. The plaintiff's lawyer, Chris Christofides, said evidence showed that the fire "began right where the switch was." He said no one else had worked on the car before the fire, and that the car had no prior electrical problems. A lower-court judge tossed out the claims against the dealership without a trial. But in a unanimous decision this May, the appellate panel ruled that a trial is necessary to determine whether the dealership performed the recall service negligently. The suit also accused Ford, which did not seek to have the case dismissed, of negli- gence in designing the cruise control system and in executing the recall campaign. ■ Suit against dealer over botched repairs goes ahead A n arbitration provision in sale documents doesn't always protect a dealership from litigation, a judge has ruled in a case alleging botched repairs on a 2011 Chevrolet Cruze. In June, U.S. District Judge Timothy DeGiusti rejected a bid by the former Jim Glover Chevrolet in Lawton, Okla., to force arbitration. The dealership was sold last year and now is called Classic Chevrolet Lawton. Ashley and Jonathan Slatten claim in their lawsuit against Glover Chevrolet that they bought what they were told was a new vehicle, but weren't told it had been previously sold and then obtained in a trade with another dealership. The Slattens "allege that multiple, repeated mechanical failures and unsuccessful repairs rendered the Cruze unsafe and unmerchantable but that the dealership refused to rescind the purchase agreement and the related retail installment sales contract," the court decision said. The complaint details problems with the car that included unexpected acceleration, oil and coolant leaks, engine shutdowns while driving, and problems with the water pump, shifter assembly, vacuum pump and engine light. The suit seeks to rescind the sale and collect damages. The dealership's new ownership is not named in the lawsuit. The dealership argued that the case must go to arbitration because of a dispute resolution clause in the deal documents. The Slattens countered that language in that clause requiring consumers to pay part of the arbitration costs is unconscionable and unenforceable. They said arbitration in cases like theirs typically costs "well over" $10,000 and "it is not unusual" for those expenses to exceed $50,000. Refusing to order arbitration, DeGiusti said the dealership didn't contest the Slattens' claim that they can't afford their share of arbitration fees or challenge their assertion that enforcing the arbitration agreement would be too costly. ■ - Eric Freedman ❙ foj@autonews.com

Table of Contents for the Digital Edition of Fixed Ops Journal - August 2016

Fixed Ops Journal - August 2016
Contents
Editor’s Letter
Service Counter
Legal Lane
Treading confidently
'Tis the season
Profit Builder
Valet service
Richard Truett
OEConnection
Changing oil:
Photo story
Trade-off
Toyota way
Feedback
Lone star
Airbag recall
Forging links
Top 50
5 Minutes With
Shop Talk
Fixed in Time

Fixed Ops Journal - August 2016