Ditch Witch of Central Illinois, Inc.

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ditch Witch of Central Illinois, Inc. and James L. Weatherwax and International Brotherhood of Teamsters, Chauffeurs and Helpers, Local Union 627. Cases 33-CA-3734 and 33-CA- 3819 March 14, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 21, 1979, Administrative Law Judge Karl H. Buschmann issued the attached De- cision in this proceeding, and, on the same date, the case was transferred to and continued before the National Labor Relations Board in Washington, D.C. In his Decision, the Administrative Law Judge found that Respondent had engaged in cer- tain unfair labor practices, had not engaged in other alleged unfair labor practices, and recom- mended that Respondent take specific action to remedy those unfair labor practices found. On October 17, 1979, Respondent filed "excep- tions" with the Board in Washington, D.C., which consist solely of its brief previously submitted to the Administrative Law Judge along with a cover letter to the Board which states: Enclosed please find eight copies of the Brief of Respondent Ditch Witch of Central Illinois, Inc. in the subject cases, setting forth said Re- spondent's exceptions to the Administrative Law Judge's Decision. On October 23, 1979, the General Counsel filed with the Board a motion to strike exceptions, and, on October 31, 1979, Respondent filed a motion to strike the General Counsel's motion to strike ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. In its motion, the General Counsel contends that Respondent's exceptions fail to meet the require- ments for exceptions set forth in the Board's Rules and Regulations, Series 8, as amended. For the fol- lowing reasons, we agree. Section 102.46(b) of the Board's Rules and Regu- lations sets forth the minimum requirements with which exceptions to an administrative law judge's decision must comply in order to merit consider- ation by the Board.' In accord with that section, Sec. 102.46(b) of the Board's Rules and Regulations states: (b) Each exception (1) shall set forth specifically the questions of procedure, fact, law, or policy to which exceptions are taken; (2) shall identify that part of the administrative law judge's decision to which objection is made; (3) shall designate by precise citation of 248 NLRB No. 52 parties objecting to findings of an administrative law judge must set forth with specificity, inter alia, the questions of procedure, fact, law, or policy to which exceptions are taken, and identify that part of the administrative law judge's decision to which objection is made. In its order of September 21, 1979, transferring this proceeding to the Board, the Board served Re- spondent with copies of the order, the Administra- tive Law Judge's Decision and recommended Order, and excerpts from the Board's current Rules and Regulations, including the relevant Sections 102.46 and 102.48.2 The order of transfer expressly directed Respondent's attention to the excerpts. Thus, Respondent has been duly notified of the pertinent Board Rules applicable to the filing of ex- ceptions. At no time has Respondent requested an extension of time in which to comply with these Rules. Nowhere in Respondent's brief submitted to the Board are there stated specific exceptions to any part of the Administrative Law Judge's Decision. Nor is it alleged with any degree of particularity what error, mistake, or oversight Respondent con- tends the Administrative Law Judge committed. By merely resubmitting its brief to the Administra- tive Law Judge, Respondent has failed to narrow the issues for review, and would have the Board engage in a fishing expedition to determine what, if any, problems or irregularities might be found in the Administrative Law Judge's Decision. The Board is not obliged to embark on such expedi- tions,3 nor does it have the resources or inclination to do so. Moreover, the Board's minimal require- ments for the filing of exceptions are not so bur- densome that they are an inappropriate prerequisite to the Board's complete examination of the record in this proceeding. Accordingly, as Respondent's "exceptions" are insufficient to place in issue any finding of the Administrative Law Judge, we reject them.4 Thus, in the absence of exceptions thereto, the findings, conclusions, and recommendations of the Administrative Law Judge as contained in his page the portions of the record relied on; and (4) shall state the grounds for the exceptions and shall include the citation of authori- ties unless set forth in a supporting brief. Any exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived. Any exception which fails to comply with the foregoing requirements may be disregarded. 2 Sec. 102.48(a) of the Board's Rules and Regulations states: (a) In the event no timely or proper exceptions are filed as herein provided. the findings, conclusions, and recommendations of the ad- ministrative law judge as contained in his decision shall, pursuant to section 10(c) of the act, automatically become the decision and order of the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. 3 Aitoo Painting Corporation. 238 NLRB No. 51 (1978). See, eg, Kings Electronics Co.. Inc., 109 NLRB 1324 (1954) DITCH WITCH OF CENTRAL ILLINOIS 453 Decision shall automatically become the Decision and Order of the Board. 5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and Section 102.48 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Board hereby adopts the rulings, findings, conclusions, and recommended Order of the Administrative Law Judge and orders that the Respondent, Ditch Witch of Central Illinois, Inc., Peoria, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 5 Consistent with our decision herein, Respondent's motion to strike the General Counsel's motion is denied DECISION KARI. H. BUSHMANN, Administrative Law Judge: This case arose upon the filing of a charge on May 18, 1978, by James Weatherwax, an individual, and the filing of a charge on July 12, 1978, by the Union. The complaints, dated June 29 and August 10, 1978, were consolidated and alleged in substance that Respondent committed sev- eral acts of independent 8(a)(1) violations, including in- terrogation of employees and threats to close the plant or of loss of benefits. The complaint further charged that Respondent, in violation of Section 8(a)(3) of the Act, discharged two employees because of their union activity and, further, that Respondent refused to recognize the Union or bargain with it, in violation of Section 8(a)(5) of the Act. Respondent's answers filed July 13 and August 28, 1978, admitted the jurisdictional allegations in the com- plaint but denied all substantive charges of unlawful con- duct. A hearing on the allegations in the complaint was held on October 17 and 18, 1978, in Peoria, Illinois. The Gen- eral Counsel and Respondent were represented by coun- sel and filed briefs on December 11 and 14, 1978, repsec- tively. Upon the entire record in this case, including the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT Respondent Ditch Witch of Central Illinois, Inc., is an Illinois corporation with its office and place of business located at Peoria, Illinois. It is engaged in the sale and service of trenching equipment to contractors and indi- viduals. It is admittedly an employer within the meaning of Section 2(6) and (7) of the Act. The Union, International Brotherhood of Teamsters, Chauffeurs and Helpers, Local Union 627, is a labor or- ganization within the meaning of Section 2(5) of the Act. Ditch Witch of Central Illinois, Inc., is one of three related enterprises operated by Earl Harbaugh, who as president and treasurer of Ditch Witch of Central Illi- nois, Progressive Leasing Company, and of Ditch Witch of Illinois, was actively involved in the management of these three firms. The day-to-day management of Ditch Witch of Central Illinois, Respondent herein, was per- formed by James Broderick, its general manager. In No- vember 1977, Respondent's work force reached an all- time high of approximately eight employees in addition to the manager. Among them was Aral Eaton, the parts and service manager, Robert Prather, a lead mechanic, and two mechanics, Robert Weaver and James Weather- wax, the two alleged discriminatees. On May 8, 1978, Eaton called a shop meeting which the three mechanics, Prather, Weatherwax, and Weaver, attended. Eaton informed the mechanics that their "ser- vice training and recall work" was excessive and that they had 2 weeks in which to improve. When Weather- wax asked Eaton whether his warning was in effect a 2- week notice, Eaton replied: "That's not what I meant." Eaton then called on Broderick who similarly told the mechanics that if after 2 weeks their work was not "up to standards" they would be replaced. On May 12, 1978, the three mechanics went to the of- fices of Teamsters Local 627 to inquire about joining the Union. When informed by the receptionist that the offi- cial whom they wished to meet was not in the office, the men left. On May 15, 1978, Weatherwax returned to the Union's office, spoke to Business Agent Charles L. Gauwitz, and signed a union card. He also took several authorization cards with him. Both Prather and Weaver signed cards on the following day, May 16, 1978, which Weatherwax, accompanied by Prather, turned into the Union's offices on the same day. In the afternoon of the same day, Gauwitz called Respondent's offices and in- formed Aral Eaton, Respondent's supervisor, that the Union had been selected by Respondent's mechanics as their bargaining representative. Eaton promptly called James Broderick on his mobile telephone and informed him that they were now a union shop. Broderick re- sponded: "Do we have a union shop or did they sign cards?" And Eaton said they had signed cards. On still the same day, May 16, Eaton spoke to Weath- erwax and asked why the mechanics had gone to the Union. Weatherwax replied that he had wanted to be sure that he had a job in the morning when he came in. Eaton then said, "You'll always have a job here as long as you keep doing the work the way you have been." Weatherwax stated that this way he would be sure. Eaton then accused him of lying and going home sick when in fact they had been going to the Union. Weath- erwax denied having gone to the Union on company time. Eaton then said: "I thought we had an agreement .... Well, this way I feel like you guys have stabbed me in the back." Shortly after this conversation, Broderick asked Weatherwax whether all mechanics had signed a card. Weatherwax declined to answer the question and Bro- derick said. "Well, I know one person that didn't fill out a card. I called Weaver and Weaver told me he didn't fill out a card." Weatherwax replied: "Well, all I can do is tell you what I saw." In the afternoon of May 16, Broderick and Eaton also talked with Bob Prather and inquired whether he had signed a card. He admitted that he had. They then in- 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed him that Weaver had denied signing a card, to which Prather responded: "I must be going blind be- cause I saw another card." During this conversation, Broderick and Eaton stated that the Union could be a determining factor as to whether they would sell the business. They mentioned possible changes within the Company in the event of unionization, as for example a requirement that the employees had to pay for their own insurance. They predicted that, in the event of an elec- tion, Weatherwax would vote for the Union and Weaver would vote against the Union. In response to this, Prather indicated to his supervisors that his vote would depend on their treatment of him. On the following day, May 17, 1978, Respondent laid off two of its three mechanics. This episode occurred at 4 p.m., when the mechanics were called to a meeting in the parts room. Jim Broderick told them that he had been going over the Company's records which showed that they did not have sufficient work to continue em- ploying three people. As a result they were going to lay off two mechanics in order of seniority. Affected were Weatherwax, with the least seniority, and Weaver. It was made clear that if work increased Weaver would be recalled before Weatherwax. The following conversation ensued as related by Weatherwax: A. I asked Mr. Broderick if this was our two weeks notice. And he said no. And I said, "Well, you told us the other day that you would give us two weeks notice." And he said, "Well, this is your notice now." And I said, "In other words, we've got two weeks to look for another job before we are fired or laid off?" And he said, "No. Today is your last day." . .. Then Bob Weaver said that if he knew a layoff was coming that he had a chance to get in overtime. And Mr. Broderick said, "Well, I didn't know nothing about the layoff until just a few minutes ago." And then I said, "In other words, all this is happening on account of the union." And he said, "What union?" And I said, "The Teamsters. The one we called to try to get to represent us." He said he didn't know nothing about no union. Analysis It is the General Counsel's position, as alleged in the complaint, that Respondent has committed independent 8(a)(l) violations because (1) James Broderick threatened an employee on May 16, 1978, that the Company would close if the Union became the bargaining agent of the employees, (2) Broderick and Aral Eaton coercively in- terrogated employees Weatherwax and Prather on May 16, 1978, and (3) Earl Harbaugh informed its employees that they would lose their profit-sharing benefits if they went union. The General Counsel further argues that Re- spondent violated Section 8(a)(3) of the Act by discharg- ing Weaver and Weatherwax because of union consider- ations, and that Respondent violated Section 8(a)(5) of the Act because the discharge of two employees under- mined and destroyed the Union's majority status. Respondent, on the other hand, argues that the two employees were laid off for economic reasons, without any union animus, and that certain statements attributed to Harbaugh, Broderick, and Eaton were either not made or did not amount to violations of Section 8(a)(l) of the Act. Threats. With respect to the alleged 8(a)(1) statements, the record shows initially that Harbaugh in early 1978 addressed the employees about their insurance and profit-sharing programs. In this connection he stated that if the employees decided to be represented by a union they would lose the profit-sharing plan and possibly have to pay for their own insurance.' Weatherwax corrobo- rated Harbaugh's testimony that his statements made ref- erence to the written profit-sharing plan which by its terms apparently excluded coverage of the employees if they were represented by a union. Under these circum- stances, Harbaugh made a prediction as to the effects which unionization would have on the existing profit- sharing plan and hypothesized about insurance payments. Since it conveyed the "employer's belief as to demon- strably probable consequences beyond his control" and not the implication that he may take action "solely as his own initiative for reasons unrelated to economic necessi- ties," I cannot find that Harbaugh's statements were vio- lative of Section 8(a)(1) of the Act. N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575, 618-619 (1969). Similarly, Broderick's or Eaton's comment to Prather on May 16 that the Union could be a factor as to whether they would sell the business does not amount to a violation of Section 8(a)(l). Not only was this statement vague and uncertain, but it also fell short of creating an atmosphere of fear or of portraying as inevitable certain economic hazards if the employees selected the Union. Interrogation. However, the record supports Respon- dent's coercive interrogation. As summarized above, both Broderick and Eaton interrogated Weatherwax and Prather on May 16. First, Eaton questioned Weatherwax why the mechanics had gone to the Union, and then Eaton accused him of lying and backstabbing. Subse- quently, both Broderick and Eaton questioned all three mechanics as to whether they signed a union authoriza- tion card. They also interrogated Prather and Weather- wax concerning their own sympathies and that of Weaver in the event of a union election. In the light of all surrounding circumstances, it is my conclusion that the interrogations were coercive and therefore violative of Section 8(a)(1) of the Act. Blue Flash Express, Inc., 109 NLRB 591 (1954). Discharges. The allegation that Respondent violated Section 8(a)(3) of the Act by the discharge of the two mechanics is also well documented by the record. Al- though Respondent has attempted to prove that the lay- offs were the result of Broderick's overly optimistic an- ticipation of an upsurge in business in the spring of 1978, the record shows that the true reasons for the discharges were the employees' union activity and their attempt to seek protection by the Union. Respondent, of course, is correct in arguing that the "Act does not suspend the right of an employer to oper- I Weaver did not remember any other statements by Harbaugh about the Union and Prather's recollection differs with that of Weatherwax. Accordingly, I cannot credit their testimony that any antiunion remarks were made at that meeting. DITCH WITCH OF CENTRAL ILLINOIS 455 ate his business in a productive and profitable manner," and that business changes solely effected for economic reasons are not proscribed by the Act. However, it is also true that certain business changes-although eco- nomically justifiable-are violative of Section 8(a)(3), where they are actually undertaken because of union considerations. In this regard, the record shows that Respondent had financial problems and that the service department was unprofitable. In an apparent effort to cure this problem, the mechanics were called to a meeting on May 8, 1978, at which time Eaton informed the men that they had 2 weeks in which to correct their performance. However, before the 2 weeks had expired and I day after the Union notified Respondent that it represented a majority of the mechanics at the facility,2 the men were laid off. The timing of this action clearly suggests that the Union, not the economic situation of the Company, was the motive behind the layoff of the two employees, because Respondent's financial position had not changed within the -week interval between May 8 and May 17, to war- rant such a dramatic turnabout in its announced decision to provide a 2-week grace period. Moreover, Respondent's argument is inconsistent in several respects. According to Harbaugh, the layoff had no connection with the performance of the mechanics and their efficiency. However, Respondent went to a considerable effort in attempting to establish an excessive amount of service warranty work and service training time by Weatherwax and Weaver to show their perfor- mance record. Respondent's position is further weakened by record evidence showing that when Prather left the employ of the Company on September 1, 1978, instead of recalling one of the men on layoff, Respondent hired Gary Price, a new mechanic. 3 This indicates that Respondent had not intended to recall Weatherwax or Weaver and that the layoff actually amounted to a discharge of the two men. Furthermore, the economic evidence relied upon by Respondent to show that the layoff was a result of the Company's financial problems is ambiguous. If anything, it shows that the poor economic position of the Compa- ny deteriorated after the layoff, which suggests that the layoff caused the adverse consequences rather than vice versa. Considering Respondent's unlawful interrogations of the mechanics concerning their union sympathies and Respondent's union animus reflected during these inter- rogations, as well as the timing of the layoffs which co- incided with the Union's notification of majority status 2 Respondent's argument that the decision for the layoff had been care- fully made in the evening of May 15, between Harbaugh and Broderick is not persuasive in the light of Eaton's testimony which-although vague-indicated that a firm decision had not been made in the early morning of May 16 Eaton initially testified that the reason for the deci- sion to reduce manpower was made on the basis of his report late on May 15 that there was "no work." Yet, during cross-examination, he con- ceded that there was a certain, minimum amount of work scheduled for the following day 3 Respondent argues that Price replaced Prather as lead mechanic, and that neither Weaver nor Weatherwax qualified as lead mechanic Howev- er, the record shows that there were no other mechanics working for Re- spondent. and Respondent's abrupt turnabout in laying off its me- chanics prior to the expiration of the 2-week grace period during which they were to demonstrate their im- proved performance, I can only find that James Weath- erwax and Robert Weaver were discriminatorily dis- charged. Respondent's economic defense was not persua- sive. While it generally showed that the Company was in a difficult financial position from which it intended to ex- tricate itself by encouraging its mechanics on to better performance, it also showed that the layoff did not im- prove the economic position of the Company. To the contrary, it deteriorated further. In short, Respondent's warning to the mechanics on May 8 prompted them to go to the Union for protection. When Respondent was informed that the Union had gained majority status, Re- spondent retaliated, discharged two of the three, and thereby destroyed the Union's majority status among the mechanics in the service department. The unit consisting of all mechanics in the service de- partment had a sufficient community of interest to be considered as an appropriate bargaining unit, and this issue is not disputed by Respondent. It is also clear that the signing of union authorization cards by all three me- chanics sufficed to show majority status of the Union as the bargaining representative of these employees. Be- cause Respondent embarked upon a course of serious unfair labor practices, including coercive interrogations of its employees and the discriminatory discharges of two mechanics which destroyed and directly interfered with the Union's majority status, immediately after the Union had made a demand for recognition, it is appropri- ate for the Board to issue a bargaining order N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614. The duty to bargain arose on May 16, the day on which the Union requested recognition. Trading Port, Inc., 219 NLRB 298, 301 (1974). CONCLUSIONS OF LAW 1. Respondent Ditch Witch of Central Illinois, Inc., is and was at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 627, International Brotherhood of Teamsters, Chauffeurs and Helpers, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By coercively interrogating its employees about their union activities, Respondent violated Section 8(a)(1) of the Act. 4. By discharging James Weatherwax and Robert Weaver, on May 17, 1978, because of their union activi- ties, Respondent violated Section 8(a)(3) and (1) of the Act. 5. By its failure and refusal to bargain with the Union, Respondent violated Section 8(a)(5) of the Act. 6. The unfair labor practices affect commerce within the meaning of Section 2(6) of the Act. THE REMEDY Having found that Ditch Witch of Central Illinois, Inc., engaged in unfair labor practices in violation of Section 8(a)(l), (3), and (5) of the Act, I recommend that 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent be ordered to cease and desist from its un- lawful practices. I further recommend that Respondent be orderd to post an appropriate notice. In addition, I recommend that James Weatherwax and Robert Weaver be offered full and immediate reinstate- ment to their former or substantially equivalent positions, without loss of benefits or seniority, and that they be made whole for any loss of earnings sustained by them by reason of the discrimination against them, together with interest to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 657 (1977). 1 also recommend that Respondent recognize and bargain with the Union as the exclusive bargaining representative of the employees in the bargaining unit described as all me- chanics in the service department. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following recommended: ORDER 4 The Respondent, Ditch Witch of Central Illinois, Inc., Peoria, Illinois, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discriminatorily discharging employees because of their union support. (b) Coercively interrogating its employees concerning their union activities. (c) Refusing or failing to recognize and bargain collec- tively with the Union as the exclusive bargaining repre- sentative of all mechanics in the service department con- cerning rates of pay, wages, hours of employment, and other terms and conditions of employment. (d) In any other manner interfering with, or coercing, its employees in the exercise of the rights to self-organi- zation, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer James Weatherwax and Robert Weaver im- mediate and full reinstatement to their former jobs or, if these jobs are not available, to substantially equivalent employment, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered as a result of the discharges in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords relevant and necessary to a determination of com- pliance with paragraph (a) above. (c) Upon request, bargain collectively with Interna- tional Brotherhood of Teamsters, Chauffeurs and Help- ers, Local Union 627, as the exclusive bargaining repre- sentative of all employees in the bargaining unit, de- scribed as all mechanics in Respondent's service depart- ment with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. (d) Post at its Peoria, Illinois, place of business copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 33, after being duly signed by Respondent's representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 33, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."