John Wyke, Inc.

John Wyke, Inc. and George H. Steffin V. Case 7- CA- 14636 September 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 29, 1979, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this pro- ceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs.' 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent violated Section 8(a)(3) and (1) of the Act by issuing a warning letter to George H. Steffin V and by reducing Steffin's work hours, with both actions being in retaliation for Steffin's filing of certain grievances. The Administrative Law Judge also found that Re- spondent violated Section 8(a)(1) when Bill Drozdow- ski, an alleged supervisor of Respondent, told em- ployee Eugene Penny that Respondent would sell all of its trucks, buy them under another company name, and hire all new drivers if the Union supported Steffin in his dispute with Respondent concerning vacation pay. We disagree with each of the above findings. In our view, the evidence as a whole demonstrates that Respondent did not retaliate against Steffin's filing of grievances by issuing a warning letter to him and re- ducing his hours. We also find that Drozdowski's statement to Penny, when viewed in the totality of the circumstances, did not violate Section 8(a)(1). Respecting the alleged violation of Section 8(a)(3) and (1), the record does reveal that Steffin's work hours were reduced by Respondent at or around the same time that he filed three grievances with Respon- dent. The reduction in hours, however, took place be- fore Steffin filed his grievances and before Respondent had any indication that Steffin intended to file griev- ances. Indeed, the grievances themselves related to the reduction in hours. In addition, the record does I Respondent has requested oral argument. This request is hereby denied as the record. the exceptions, and the briefs adequately present the issues and the positions of the parties. JOHN WYKE. INC. not reveal anv form of discriminatory treatment of Steffin or any union animus on the part of Respon- dent. Numerous other employees were the subject of layoffs and work hours reductions. These occurred primarily because Respondent was in the process of reorganizing its operation in response to substantial business losses. Respecting Steffin himself, his par- ticular job was the subject of a special memorandum agreement between Respondent and the Union. This agreement stated that Steffin was to work a 40-hour shift but specifically provided that the number of hours was contingent upon work availability. Consis- tent therewith, Steffin had been subject to several re- ductions in work hours in the past when work avail- ability decreased. Finally. in this regard it is significant that of the three grievances filed by Steffin, Respondent settled one of the three in his favor. In short, the record simply does not support the Admin- istrative Law Judge's finding that Respondent retali- ated against Steffin's filing of grievances by reducing his work hours.2 Respecting the violation of Section 8(a)(l) found by the Administrative Law Judge, we conclude that in the totality of circumstances no violation occurred. While the record does reveal that Drozdowski made the statement attributed to him, the evidence also re- veals that he was drunk at the time, and that Penny was aware of the fact. In addition, Penny did not inform any of his fellow workers that such a state- ment had been made. Finally, it is undisputed that when Drozdowski made the statement he went on to say that the owner of Respondent Company, John Wyke, would be unwilling to take the steps urged by Drozdowski, but that Drozdowski would seek to con- vince him. In these particular circumstances we find no violation of Section 8(a)(1).3 Having found that Respondent did not engage in the violations alleged, we will dismiss the complaint in its entirety. 2 The Administrative Law Judge also found that Respondent issued a warning letter to Steffin in retaliation for the filing of grievances. The warn- ing involved Steffin's failure to pick up an item that he had been sent to obtain as well as Steffin's allowing unauthonzed persons to nde in his vehicle during working hours. Again, the record does not support the Administrative Law Judge's finding. The evidence reveals that upon issuance of the warning letter a union representative met with Respondent and explained that there had been a misunderstanding by Respondent of Steffin's actions which had resulted in the letter. Pursuant to that discussion Respondent withdrew the warning letter. This incident also demonstrates the fact that the record is bereft of any significant evidence which would indicate union animus on the part of Respondent. Rather, the record demonstrates that the relations be- tween Respondent and the Union were, for the most part. characterized by cooperation and harmony 3 Respondent, in its exceptions, argues that Drozdowski, who was not em- ployed by John Wyke, Inc., at the time of his statement to Penny. was not a supervisor of Respondent's employees within the meaning of the Act In view of our holding herein it is unnecessary to pass on Respondent's conten- tion. 245 NLRB No. 3 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FAC I Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Administrative Law Judge: The hear- ing in this case was held in Detroit, Michigan, on June 5, 1978, based upon the complaint issued by the Regional Di- rector for Region 7 on January 11, 1978, which in turn was based upon a charge filed on November 21, 1977, by George H. Steffin V, an individual. The complaint, as amended at the hearing, alleged in substance, that Respon- dent, by its agent Bill J. Drozdowski, vice president of Re- spondent, had threatened to sell all of its trucks and dis- charge its employees if they engaged in union or other collective-bargaining activities for their mutual aid and pro- tection and, on or about October 7, 1977, by President John Wyke, had issued a warning letter to and reduced the hours of Steffin because of his membership and activities on be- half of Local 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. By these acts the complaint alleged that Respondent engaged in unfair labor practices violative of Section 8(a)(Xl1) and (3) and Section 2(6) and (7) of the Act. In its answer, received on June 20, Respondent admitted certain jurisdictional allegations of the complaint but de- nied that it had engaged in any conduct violative of the Act. Briefly stated, counsel for the General Counsel contends that the following questions are presented for decision: (a) whether Drozdowski was a supervisor and/or agent of Re- spondent; (b) whether Respondent, through its agent Droz- dowski, violated Section 8(a)(1) by threatening employees with the sale of all its trucks and with the firing of its em- ployees if they engaged in union or other concerted pro- tected activities; and (c) whether Respondent violated Sec- tion 8(a)(3) by issuing a warning letter and reducing the hours of Steffin because of his union activity. Counsel urges that these questions should be answered in the affirmative. On the other hand, counsel for Respondent contends that the following questions are presented: (a) whether Respon- dent had notice of the three grievances filed by Steffin in October 1977 when it cut back his hours; (b) whether the cutback in Steffin's hours was due to anything other than sound business reasons; (c) whether the warning letter sent to Steffin was in retaliation for his having filed grievances; and (d) whether Drozdowski was an officer, director, or employee of Respondent. Counsel for Respondent requests that I find Respondent committed no unfair labor practices and, accordingly, deny the relief sought by the General Counsel on behalf of Steffin. Upon the entire record in the case, including my observa- tion of the witnesses as they testified and a consideration of the briefs filed with me by counsel for both parties on or about July 10, 1978, I1 make the following: I. JURISI)I( ION Respondent. a Michigan corporation, at all material times has maintained its only office and place of business in the city of Brownstone Township, Michigan. where it is engaged in the rental of construction equipment and related products to concerns engaged in the construction business. Respondent admits and I find that during 1977 it purchased and caused to be transported and delivered to its Brown- stone Township installation construction equipment and other goods and materials valued in excess of $50,000, which goods and materials valued in excess of the same amount were transported and delivered to the Brownstone Township installation and received from enterprises located in Michigan, which received such goods and materials di- rectly from points outside the State of Michigan. Respon- dent admits that at all material times it has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; it further admits that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRAC11TCES Eugene Penny, who went to work for Respondent in April 1971, held the position of truckdriver at the time he testified, but he was also responsible for seeing that the trucks were ready in the morning, putting fuel in them, fixing flat tires, and, on occasion, driving miscellaneous trucks during the day and helping the mechanics. He prin- cipally reported to Wyke, although foremen also gave him directions. Thus, he reported to Drozdowski as well as to Foreman Greg Mason. Penny testified that he joined the Union about I week after he began working for Respon- dent and at the time he testified was acting steward. After working for 3 months Penny was discharged; he thereupon called the Union, and the matter was settled with the result that he lost no worktime. Apparently the matter that was in dispute was Penny's pay scale: Penny called the Union, which took the matter up with Respondent, asserting that Penny was working as a teamster and should be getting the correct wage scale. He did receive the correct payment the following week, but he was told by Personnel Manager Holmes that Respondent no longer needed him and was given two paychecks. Before he called the Union complain- ing about his wage scale Penny had been working from 65 to 95 hours per week. According to Penny, the Union ad- vised Respondent that it could not dismiss him according to the contract without first giving him three written warnings within a 9-month period. He was returned to employment. He testified that he had never been given a prior warning. Penny related that he helped Steffin write up his first grievance, which concerned the matter of a shortage of 4 days in his vacation pay. He further testified that during the late summer Steffin appeared "very upset one day in the garage" and called out to Penny that he wanted a grievance form because he was "tired of other people doing his work." Foreman Mason was in the garage at the time and, accord- ing to Penny, was about 15 or 20 feet behind Penny, who testified that there was no noise in the garage at that time. ORDER 10 JOHN WYKE, INC. When Penny told Steffin that he did have some grievance forms in his pickup truck the two proceeded to leave the garage, whereupon Mason asked them where they were going and stated that he wanted Steffin to leave promptly for some parts. According to Penny, in the fall he had a conversation with Drozdowski, who called him and stated that one of the trucks had to be ready early the following morning and that he should check it out. In addition, he inquired what Steffin hoped to gain from his grievances and further said that Steffin deserved the 4 days' pay according to the union agreement. Drozdowski, in a loud tone, told Penny that he should tell the rest of the drivers that if, pursuant to the 72- hour strike notice then in force, they backed Steffin Respon- dent "would then sell the trucks, and buy them under an- other company name, and hire all new drivers." Penny re- lated that Drozdowski repeated this several times and said that although he had not been able to convince Wyke of this, he was sure that Harvey Warner, a consultant with Respondent, would be "able to talk him into it." Penny testified that the only employees on Respondent's payroll were the truckdrivers and perhaps the garage mechanics. He related that since October 1977 no one had been laid off, but that hours had been cut, although not drastically: he further stated that during the winter hours normally are reduced. Penny testified that he worked in the garage or yard 2 or 3 hours per day and had earned about $100 from the Joba Construction Company in the past year. He stated that he was on Respondent's payroll approximately 90 per- cent of the time. On cross-examination he testified that Re- spondent's principal customer, up to 99 percent of the time, was the Joba concern, which also rents construction equip- ment to other concerns. Then he testified that the complaint or problem he raised some 7 years earlier had never been brought up. Penny's only knowledge of grievances or com- plaints were the ones relating to Steffin, and that prior thereto "there weren't any within a couple of years before that." Penny related that Drozdowski telephoned him on what he believed was the Labor Day weekend and "sounded like he had been either drunk or had been drink- ing very heavy." Penny further testified that he knew Droz- dowski "holds his liquor very well, but to me he was a little bit heavier than that to me that night." Penny testified that Drozdowski tole him that if the drivers would back Steffin and went on strike Respondent would sell the trucks, buy them under another name, and hire new drivers. On cross- examination, in answer to an inquiry whether he gave the "threat" that Drozdowski made any credence, he testified that "at the time I did yes, quite a bit." On September 15 a meeting was held to discuss the vaca- tion pay grievance of Steffin; however, the matter was not resolved because of a difference of opinion regarding the interpretation of the contract. Not long thereafter, Wyke spoke to George Withers, the secretary-treasurer of Local 247 of the Teamsters, about a contract interpretation. Wyke finally gave in to the Union's interpretation but continued to disagree with it even after Steffin received his vacation pay. Before September 15 Steffin customarily worked 40 hours each week. However, as of September 20, Respondent be- gan cutting his hours, and Supervisor and Mason called him at home on September 20 and told him not to come to work because Respondent had no work for him. Thereafter, Steffin's hours were progressively reduced from 40 hours each week to approximately 15 hours, and in the last week of October Steffin worked only 5 hours. Steffin testified that he "found again, as before, Gregg Mason and others were running parts for me, so I filed three grievances on October 3, 1977." In the grievance dated September 21 Steffin stated that on that date he "was told by my foreman not to come in because there wasn't any work for me to do." He went on to state that on that day Mason "went to Whitfield Ford and purchased two rear springs pins" for Respondent's die- sel truck tractor, 118, and that he was "requesting that I be paid and this activity be stopped." In the grievance dated September 27 Steffin stated that on that day he was told by Mason "not to come in because there wasn't any work for me to do." However, he went on to state that from approxi- mately 9 a.m. to 10 a.m. Foreman Mason drove to a con- cern in Detroit and purchased four bolts "for use in repair of" a vehicle, and that he was "requesting that I be paid and this activity be stopped." In the grievance dated Sep- tember 28 Steffin stated that on that date Foreman Mason took a defective battery from the garage "and drove to Magnetic Battery in Detroit and exchanged it for a new one" and that afternoon he asked Mason, inasmuch as he (Steffin), "didn't know that he had done this until the next day", if Mason "wanted me to exchange the battery he said that Magnetic Battery was sending their truck out to the garage with a new one." He again requested that he be paid and that such activity be stopped. On October 6 Wvke wrote to McQuarter of Teamsters Local No. 247 concern- ing Steffin. Wyke stated that Steffin "is not conscientious enough regarding the parts he is supposed to pick up" and recited what he regarded as the details of a certain incident. Wyke went on to state that on Friday, September 30, "Stef- fin had a passenger riding with him who was not employed by John Wyke, Inc., and whose presence was not related whatsoever to parts pick-up for the company." On October 7 Wyke wrote to Steffin stating: "Due to large financial losses this year, we are forced to cut down on all operations. We have decided that we can only work you I day a week, starting next week" and advised Steffin not to "report to work until we schedule that day and call you." Steffin worked for the last time on October 31, and since then he has received no calls to report to work. Steffin testified that to his knowledge no one else in the garage had his hours cut, nor had any garage employees been laid off. 1it. DISCUSSION AND CONCLUSIONS Turning first to the status of Drozdowski. counsel for the General Counsel draws attention to the fact that Wyke. president of Respondent, testified that from 1970 through 1977 Drozdowski held the position of field superintendent for Joba Construction, which is another concern owned by Wyke and is the principal customer of Respondent. Wyke further testified that Drozdowski held the position of vice president for the Joba concern in some of the years between 1970 and 1977. Wyke described the job duties of Drozdow- ski while field superintendent as including responsibility "for the coordinating and the production and the cost of I DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain projects" and being "responsible for seeing that the appropriate number of persons and to some degree respon- sible for seeing that men were on the jobs and performing the work, to some degree seeing to it that the appropriate number of persons and classifications are hired and that, when work flow on a particular project slowed down, seeing to it that employees are laid off or transferred to another job." Wyke testified that Drozdowski was not completely responsible for performing these functions but made the decisions in consultation with Wyke. Moreover, Wyke ad- mitted that when Respondent rented equipment to the Joba's concern Joba's supervisors directed the operators of the equipment, who were employees of Respondent. Wyke testified that Drozdowski would participate in the decision not to use a particular piece of equipment when it was no longer needed, and there were times when rank-and-file em- ployees working for Joba worked for Respondent. Counsel for the General Counsel argues that Drozdow- ski, under the evidence, "falls within the statutory definition of a supervisor of Respondent," and that as field superin- tendent for Joba he exercised "independent judgment in directing and assigning work, to not only Joba employees, but Respondent's employees as well." Moreover, he states that if it is assumed that Respondent "did not actually vest Drozdowski with supervisory authority over its employees, Respondent still holds responsibility for any conduct of Drozdowski which interfered with the rights of employees under the Act. Employees could have reasonably believed that Drozdowski acted for management." In addition. counsel for tile General Counsel points out that aside from giving orders to employees of Respondent Drozdowski "held himself out to employees (and to customers) as an executive vice-president." and that President Wyke testified that he did not repudiate such claims. He also calls atten- tion to the fact that Drozdowski's name appears, along with the names of Respondent's officers and foreman. on the hours cutback letter addressed to Steffin. Counsel for Respondent argues that although he admit- ted the allegation in the complaint stating that Drowzdow- ski was a supervisor within the meaning of the Act that admission "was error on counsel's part as Bill Drozdowski was not in fact a supervisor of John Wyke, Inc. within the meaning of Section 2( 1) of the Act," and that this "confu- sion is attributable to the fact that this case was initially handled by a staff attorney who, ironically, was also laid off." Counsel for Respondent asserts that the "paucity of proofs supporting Mr. Steffin's complaint verges on being absolute," and that there is "not a single shred of evidence to link the grievances filed by Steffin and the time cutback and warning letter." Moreover, counsel asserts that "there is serious question as to whether or not the activities of George H. Steffin V, in filing grievances was concerted ac- tivity within the protection of the Act" and cites N.L.R.B. v. Northern Metal Company, 440 F.2d 881 (3d Cir. 1971). However, in an earlier decision of the Court of Appeals for the Second Circuit, Chief Judge Lombard, for a unanimous panel, wrote that "while interest on the part of fellow em- ployees would indicate a concerted purpose, activities in- volving attempts to enforce the provisions of a collective bargaining agreement may be deemed to be for concerted purposes even in the absence of such interest by fellow em- ployees." N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495, 500 (2d Cir. 1967). 1 agree with what Chief Judge Lom- bard stated and, accordingly, find that Steffin's filing of grievances constituted concerted activity within the protec- tion of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case I make the following: CONCL.USIoNS OF LAW I. John Wyke, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 247. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Bill J. Drozdowski is a supervisor and agent of Re- spondent within the meaning of Section 2(11} and (13) of the Act. 4. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( 1) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. TifE RFMFDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (I) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. I have found that Respondent. by Drozdowski. threat- ened to sell its trucks. buy them under another Company name, and hire all new drivers. In addition, I have found that Respondent reduced the hours of work of Steffin, whereas the hours of other employees were not cut. I con- clude that Respondent took this action in retaliation be- cause Steffin filed grievances. I further conclude that Re- spondent violated Section 8(a)(3) and (I) of the Act by issuing a warning letter to Steffin, as well as by cutting back his hours of work. Also, I am convinced that Respondent, through Supervisor Mason, who was present and able to hear Steffin's request for grievance forms on September 30, 1977, I week before Steffin's reprimand and layoff, knew of Steffin's grievance filing activity. Indeed, Steffin made a di- rect comment to Supervisor Mason about getting grievance forms when Mason asked where he was going. I think it reasonable to infer that Respondent was aware of Steffin's grievances on October 6 and 7, 1977. the dates of the letters reprimanding Steffin and cutting back his hours, by reason of the fact that Respondent did not call Mason as a witness to testify as to his knowledge of Steffin's grievance filing activity. Inasmuch as it has been found that Respondent discrim- inatorily issued warning letters to Steffin, laid him off, and cut back his hours of work because of his union member- ship and activity, it will be recommended that the Respon- dent cease and desist therefrom and take appropriate affir- mative action, including reinstatement of Steffin, together with backpay plus 6 percent interest per annum. [Recommended Order omitted from publication.] 12