Fixed Ops Journal - August 2017 - 8

FIXED OPS JOURNAL

LEGAL LANE

 Mercedes-Benz store
must pay for retaliating
against repair shop

 Ex-technician can press
age-bias claim against
Honda dealership

 Daimler can't
impose pay changes on
technicians, union argues

A Houston Mercedes-Benz store must pay a
$939 jury award for retaliating against an independent repair shop whose owner testified
against the dealership in a customer arbitration case, the 5th U.S. Circuit Court of Appeals
has ruled.
The court panel ordered the trial judge to reconsider an award of $110,000 in attorney
fees.
Heights Autohaus had bought discounted
Mercedes-Benz parts from Mercedes-Benz of
Houston Greenway until 2012. That year, shop
owner Mark Zastrow agreed to testify as an expert witness on behalf of an African-American
couple in a racial and credit discrimination,
contract and warranty arbitration against the
store.
The couple had bought a 2006 CLK from the
dealership.
"The day before Zastrow was to be deposed,
he alleges that a Mercedes Greenway employee
called him and told him not to testify, warning
that he would regret it," the appeals court said.
The dealership claims it decided to sever
ties after Zastrow's testimony criticized and
disparaged it.
Zastrow had sought $108,000 in economic
damages and $1.08 million in punitive damages.
The outcome highlights the risks of not resolving
conflicts early without litigation, said Zastrow's
lawyer, Reginald McKamie of Houston.
"This is a perfect example of a dealership
not being reasonable and not stepping away
from the situation and saying, 'Did I do something wrong? Should I try to correct this situation now?'"
The appeals court said the dealership's
statement about why it ended its business relationship with Heights Autohaus supported
Zastrow's legal position. Dealership lawyers
did not respond to requests for comment.

The British Columbia Human Rights Tribunal is allowing a former journeyman mechanic to pursue a claim that a dealership's age discrimination forced him to resign at 64.
But the tribunal dismissed his disability discrimination claim against Happy Honda in
Burnaby, British Columbia.
Brian Sayer had worked at the dealership
and its predecessors since 1983. He was one of
the store's two oldest senior technicians when
he quit in 2016, the decision said.
Sayer's complaint alleged that the dealership's general manager harassed the oldest
techs, threatened to reassign them to express
bays in the less accessible shop basement,
called them "old man," ignored their health
problems and made "derogatory remarks"
about Sayer. The co-worker no longer is employed at Happy Honda.
The dealership denied any bias. It said it had
a "non-discriminatory reason" for transferring Sayer to the lower level that included
placing an experienced technician near apprentice techs.
It also said its newly hired general manager
had discussed Sayer's retirement plans and
"specifically advised him that he had a position at Happy Honda for as long as he desired," according to the tribunal's decision.
The dealership denied using its planned
move to a new location "to threaten or intimidate" Sayer.
Tribunal member Norman Trerise wrote in
his decision that a hearing is required to resolve the conflict about age bias, but said Sayer didn't show he suffers from any disability.
"Given the stark discrepancies in the evidence put forward, a hearing is necessary,"
Trerise wrote.
Sayer's lawyer, Catherine Keri of Vancouver,
said: "The next step in the process is to set
dates for a hearing on the merits."

Dealerships whose service technicians are
represented by a union can't make unilateral
wage decisions for new employees, even
when they are trying to hire techs quickly.
So says a lawyer for the International Association of Machinists and Aerospace Workers,
which won a labor dispute with Livermore
Auto Group in Livermore, Calif.
The group's Ford-Lincoln dealership is now
following a National Labor Relations Board
order to bargain in good faith with the union
that represents its full-time, part-time and
lube technicians, according to an NLRB compliance notice.
The NLRB certified the union as the technicians' exclusive bargaining agent in 2013, but
the two sides haven't agreed on their first contract, says union lawyer Caren Sencer. The
NLRB approved a settlement last December
that prohibits the store from refusing to bargain in good faith.
Sencer says "ongoing negotiations" are taking place over an initial contract and about
wages and hours.
The union's complaint accused the dealership of imposing unilateral pay and health insurance changes on service techs.
These included a 40-hour workweek guarantee to one technician, an hourly-plus-flatrate production bonus for new hires and a pay
increase for a different technician, the union
said.
Sencer says many dealerships lack standardized initial pay rates for new techs, which
causes labor problems when they're trying to
hire techs.
"When you have the union there, you cannot unilaterally act," she says.
A lawyer for the dealership did not respond
to a request for comment.

PAGE 8

AUGUST 2017

- Eric Freedman

foj@autonews.com

Table of Contents for the Digital Edition of Fixed Ops Journal - August 2017