Dooley Equipment Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dooley Equipment Corporation and International Union of Operating Engineers, Local 832, AFL- CIO. Cases 3-CA-8884 and 3-RC-7354 September 10, 1980 DECISION, ORDER, AND DIRECTION On April 10, 1980, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions. The Board has considered the record and the at- tached Decision in light of the exceptions, and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order,' as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied herein, and hereby orders that the Respondent, Dooley Equipment Corporation, Rochester, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Add the following as paragraph l(b) and relet- ter the subsequent paragraphs accordingly: "(b) Creating the impression of surveillance of our employees' union activities." 2. Add the following as paragraph 2(b) and relet- ter the subsequent paragraphs accordingly: "(b) Expunge from the personnel file of Edward Arnold all references to his discharge on October 31, 1978." 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED in Case 3-RC-7354 that the challenge to the ballot of Cesare Aiello be, and it hereby is, sustained; that the challenges to the ballots of Stephen Knorr, Edward Arnold, and John Lanseer be, and they hereby are, overruled; and that the matter be, and it hereby is, remanded to the Regional Director for Region 3 for further proceedings pursuant to our Direction herein. DIRECTION It is hereby directed that as part of the investiga- tion to ascertain a representative for purposes of I In accord with his dissent in Olympic Medical Corporation, 250 NLRB No. 11 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. 2 The Administrative Law Judge inadvertently failed to conform his recommended Order to his findings. We will, therefore, modify his rec- ommended Order and notice accordingly. 252 NLRB No. 20 collective bargaining among certain employees em- ployed by Dooley Equipment Corporation, in the unit set forth in section 12 of the Stipulation for Certification Upon Consent Election, the Regional Director for Region 3 shall, pursuant to the Board's Rules and Regulations, Series 8, as amend- ed, within 10 days from the date of this Direction, open and count the ballots of Stephen Knorr, Edward Arnold, and John Lanseer, and thereafter prepare and cause to be served on the parties a re- vised tally of ballots, including therein the count of said ballots, upon the basis of which he shall issue the appropriate certification. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their union activities. WE WILL NOT create the impression of sur- veillance of our employees' union activities. WE WILL NOT threaten our employees with discharge because they support a union, or vote in a representation election. WE WILL NOT discharge or otherwise dis- criminate against our employees in regard to hire or tenure of employment, or any term or condition of employment, because they engage in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their right to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act. WE WILL offer Edward Arnold immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent job, without prejudice to his senior- ity or other rights and privileges, and We will make him whole for any loss of earnings he may have suffered as a result of thediscrimina- tion against him, plus interest. WE WILL expunge from the personnel file of Edward Arnold all references to his discharge on October 31, 1978. DOOLEY EQUIPMENT CORPORATION DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charge in this case was filed by International Union of 88 DOOLEY EQUIPMENT CORP. Operating Engineers, Local 832, AFL-CIO, referred to herein as the Union, on January 11, 1979. The complaint issued on February 7, 1979, alleging that Respondent in- terrogated employees about their union activities, threat- ened an employee with discharge if he voted for the Union, and terminated employee Edward Arnold be- cause of his union activities. The complaint was amended at the hearing to allege further that Respondent con- veyed to employees that their union activities were under surveillance and threatened employees with dis- charge and other reprisals if they continued to support or discuss the Union. In its answer Respondent denies the commission of any unfair labor practices. In Case 3-RC-7354 a petition was filed on November 1, 1978, by the Union seeking an election among all me- chanics and parts employees of Respondent. On Novem- ber 28, 1978, the Regional Director issued his Decision and Direction of Election, and on January 5, 1979, an election was conducted among the employees in the ap- propriate unit. The tally of ballots shows that of approxi- mately 10 eligible voters, 3 voted for the Union, 3 voted against the Union, and 4 cast challenged ballots. On Feb- ruary 12, 1979, the Regional Director issued his order di- recting hearing on challenges and order consolidating cases and notice of hearing in which he consolidated the challenges to the ballots of John Lanseer, Cesare Aiello, Stephen Knorr, and Edward Arnold with the unfair labor practices for purposes of hearing and decision. A hearing in the consolidated cases was held before me in Rochester, New York, on July 11 and 12, 1979. At the conclusion of the hearing the parties waived oral ar- gument and were given leave to file briefs which have been received from the General Counsel. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is a New York corporation engaged in the nonretail sale and service of forklifts, material handling equipment, and related products at Rochester, New York. Respondent has annual direct inflow in excess of S50,000. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Status of Stephen Knorr At the time of the events at issue herein Respondent was headed by its President James Dooley, Jr. Reporting directly to Dooley was its Operations Manager Ronald Schollnick and Battery Manager Raymond Dano. Scholl- nick also served as service manager. Respondent em- ployed approximately four mechanics and a truckdriver who reported to Schollnick as service manager, and a battery repairman who worked under Dano. In addition, Parts Manager Stephen Knorr and part-timers John Lan- seer and Cesare Aiello reported to Schollnick. A clerk divided his time between the service department and the parts department. In its answer Respondent admitted that Dooley, Schollnick, Dano, and office secretary Barbara Baltzer were supervisors and agents of Respondent. At issue is the status of Stephen Knorr who Respondent contends was a managerial employee or a supervisor. Knorr was hired to work for Respondent in June 1978, shortly after Schollnick became operations manager. At the time of his hire, Knorr was told that he was being hired as parts manager to replace a former parts manager who had recently left. The duties of the previous parts manager were to maintain the parts inventory at levels necessary to meet customer needs, to buy parts from sup- pliers at the best price available, to bill customers, to set parts prices using discretion within certain guidelines, to return unneeded parts for credit, to obtain warranty credits, and to take, fill, and ship parts orders. When Schollnick interviewed Knorr, he told him that it would take a year to a year and a half for him to learn the job, that he would work with Knorr for as long as was reasonably necessary to train him, and that Knorr would be in charge of the entire parts operation once his training was finished. At the time of the representation election in January 1979, Knorr was still in training, and Schollnick spent approximately half of his time in the parts department, where he oversaw Knorr's work.' Schollnick instructed Knorr how to determine prices from published price lists, using guidelines which depended on the identity of the customer and the volume of his business with Re- spondent. For customers for whom Knorr had no specif- ic instructions Knorr usually charged list price, although on occasion in response to telephone inquiries he quoted higher prices if he thought the customer would accept them. Schollnick generally reviewed and approved Knorr's pricing of parts and parts orders placed by him with suppliers, but Knorr did not always check with Schollnick before quoting prices to customers over the telephone. Knorr was paid a weekly salary and was not required to punch a timeclock after the first few weeks of his em- ployment. 2 Knorr had some previous experience in in- ventory control work and had worked on one previous job for a short period buying and selling fasteners and screw machine parts. However, he had no special educa- tional background, and none was required for the job. In deciding whether Knorr was a managerial employ- ee at the times material to this case, Knorr's job title is not determinative. Assuming that the duties and responsi- bilities of a fully trained independently functioning parts manager, such as Knorr's predecessor, would bring him within the established definition of a managerial employ- Schollnick testified that as of the time of the heraring Knorr's train- ing had required more of his time and attention than he had anticipated 2 After the union activity started, Knorr decided on his own to resume punching a timecard and was ordered to stop by Schollnick. 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ee,3 by the time of the representation election Knorr had not assumed the full duties and responsibilities of the po- sition, but remained a trainee working under close super- vision from Schollnick and bound by pricing policy guidelines, with little discretion to determine prices to be charged or paid for parts or to determine departmental policy. There was no formal training program and no fixed period at the end of which Knorr was either to assume full managerial duties or leave Respondent's employ. I find that Knorr from the time of his hire through the time of the election, when at least 6 months of his training period remained, was not a managerial employee. 4 Apart from Knorr and Schollnick, the only other person who worked in the parts department was Steve Kandas, who divided his time between the parts depart- ment and the service department. In the parts depart- ment Kandas checked incoming parts orders as they were received from common carriers, stocked shelves, packaged outgoing orders, mailed them, and kept some records. Knorr told Kandas what work needed to be done, but did not tell him how to do it. 6 Kandas was Dooley's brother-in-law. He was initially hired as a salesman. For a period of time before Scholl- nick was hired he was put in charge of the service de- partment. After Schollnick was hired, he worked half time in the service department assisting Schollnick and substituted for him when Schollnick was absent. Like Knorr, Kandas was salaried and was paid more than Knorr. I find that Knorr's direction of Kandas was at most routine and that there is no evinence that he possessed supervisory authority. I find that at all times material Knorr was an employee within the meaning of the Act. B. The Beginning of the Union Activities and the Alleged Interrogation In the fall of 1978 6 one of Respondent's employees became dissatisfied because Respondent had terminated their medical insurance. Around the beginning of Octo- ber, mechanic Edward Arnold visited Battery Manager Dano at his home one evening on a personal matter. Arnold was aware that Dano at one time had been a union member and he asked Dano what union he had been in, where its office was located, and who its busi- ness agent was. Around that time driver Jeff Zornow also questioned Dano about a union. Shortly thereafter Dano told Dooley that there was some talk about a union, that there were too many questions for it to be coincidental, and that he might have a problem. 7 See Bell Aerospace, A Division of Textron. Inc., 219 NLRB 384 (1975). Barnes and Noble Bookstores Inc., 233 NLRB 1326, 1341 (1977). s Although Schollnick testified that Knorr had authority to transfer Kandas from the service department to the parts department, his affidavit stated that Knorr had no authority to transfer employees, and Kandas testified that Schollnick told him where to work. I do not credit Scholl- nick's testimony in this regard or his attempt to explain away his affida- vit. To the extent that there is otherwise conflict between the testimony of Knorr and Schollnick as to Knorr's duties I have credited Knorr. a All dates referred to herein are in 1978 unless otherwise indicated. Dano conceded telling Dooley this much, but denied that he told Dooley who had spoken to him and testified that Dooley said little in response. According to Dooley, before Schollnick was hired in April he On October 24, Arnold, Zornow, Parts Manager Ste- phen Knorr and battery employee Bradley Rist went to the Union's hall and signed authorization cards on its behalf. The next day Rist told Dano that they had signed the cards. 8 On the morning of October 25 office secretary Barbara Baltzer told Knorr that she knew who had signed the union cards. Knorr asked her who had signed, and she replied that four had signed, including Rist, Zornow, and Alnold. She asked Knorr if he was the fourth. Knorr an- swered that the fourth was Melvin Logan and not Knorr. A few days later Baltzer again asked Knorr if he was the fourth card signer, at this time Knorr told her that he was.9 I find that Baltzer's statement to Knorr on October 25 that she knew who had signed union cards created the impression of surveillance of union activities, and her questioning of Knorr on October 25 and again 3 or 4 days later as to whether he had signed a card constituted interrogation in violation of Section 8(a)(l) of the Act.' ° C. The Termination of Edward Arnold On Monday, October 30, Schollnick told Arnold to get two forklift trucks ready by the end of the day for rental to Xerox Corporation, a major customer. Arnold found numerous problems with the trucks and did as much as he could to fix them in the alloted time. During the afternoon he told Dooley and Schollnick that there were problems with the trucks and that he did not think they should be sent to Xerox. Schollnick told him to fix them up as best as he could and Dooley said nothing."x heard rumors that if Schollnick became operations manager a union might come in, but heard nothing about union activity from then until November 1. While Dano may have had reason to conceal what he told Dooley, he had no reason to exaggerate or misrepresent it to the Re- spondent's detriment. I have credited Dano that he told Dooley about the employees' interest in the Union 8 Rist testified that he signed his card on October 12 and spoke to Dano about a week later It appears however that all cards were signed on October 24 and that Rist spoke to Dano on the next day. Dano con- ceded that Rist told him that the men had signed cards the previous day but denied that he told Dooley what Rist had told him As set forth below, I do not credit Dano's denials that he told Dooley what he learned from Rist. 9 Knorr so testified. Baltzer testified initially that she overheard con- versations in her presence among employees about forming a union but that she never asked anyone who signed the cards and that no one volun- teered to her whether they had signed cards. She later testified that she asked how many had signed cards and that it was possible that she asked who signed cards, but that she did not "interrogate" them. Baltzer denied that she told Dooley at any time about her conversations with the em- ployees about the Union. I credit Knorr and not Baltzer's equivocal denial. °0 Kraco Enterprises, Inc., 226 NLRB 22 (1976) " I have credited Arnold as to when he was assigned to work on the trucks and what he told Schollnick and Dooley. Schollnick testified that he assigned Arnold to work on these vehicles on the previous Thursday afternoon and told Arnold that he wanted him to put them into good op- erating condition without giving him a time limit for completion of the work. However, he also testified that he told Arnold that there was a time problem, that he wanted him to be expedient, and that when a Xerox official later called to complain about the condition of the trucks, he told Schollnick that he needed the vehicles and that Schollnick had promised delivery. S-hollnick testified further that before the vehicles were delivered he spoke to Arnold several times and that Arnold indicat- ed that he was making progress, finally stating that they were ready for Continued 90 DOOLEY EQUIPMENT CORP. Late that afternoon or early the next morning Zornow delivered the two trucks to Xerox. Before making the delivery, Zornow was required to fill out predelivery in- spection sheets. 2 After checking the operating condition of the trucks, Zornow asked Arnold what was wrong with them and told him that they would not pass inspec- tion. Arnold replied that he knew what was wrong with them but that Schollnick wanted them sent to Xerox and that he had done everything he could. Zornow noted on the predelivery inspection sheets what was wrong with the trucks and indicated that they were not in condition for delivery. He then went to Schollnick and showed him the sheets, which Schollnick signed, telling Zornow to get the trucks out to Xerox. Zornow made the deliv- ery. While defective, the trucks were operable at the time of the delivery. 1 Soon after the trucks were delivered, an official of Xerox telephoned Schollnick and Dooley to complain that they were unacceptable and could not be used. Dooley went to Xerox to look at the trucks and Schollnick sent mechanic Staley there to work on them. When Dooley returned in midafternoon, he discussed the matter with Schollnick, and Schollnick told him that he would handle it. At around 4 p.m. Schollnick called Arnold to his office and told him that Dooley had received a call from Xerox and was "hotter than hell" about the trucks that Arnold sent out. Arnold responded that he had told Schollnick that they were not really ready to go, and Schollnick replied that as far as he was concerned Arnold was a slipshod mechanic. Arnold asked what that meant, and Schollnick said that he was not going to work there anymore. Arnold asked if he was laid off, and Schollnick said he was fired. Arnold became angry and told Schollnick that he could fire him for any other reason but that it was untrue that he was a slipshod me- chanic. Schollnick made no response, and Arnold left.'4 delivery. Dooley was not asked about any conversation with Arnold about the trucks. I have not credited Schollnick because it is apparent from his own testimony that there was a promised delivery date and that he gave Arnold a time limit for completion of the work notwithstanding his denial. As for what Arnold told Schollnick about the condition of the trucks before delivery, not only did Dooley fail to contradict Arnold, but, as set forth below, Schollnick, did not convincingly rebut Zornow's testimony as to his report to Schollnick of the condition of the trucks before delivering them. 12 According to Zornow, Schollnick had stressed the importance of filling out this form to him. Dooley testified that these sheets were used until Respondent moved to a new building in April 1979, but that the sheets were not retained after deliveries were made. Schollnick testified that the sheets were not in use when he started to work for Respondent, that they were used only occasionally thereafter, and that he did not insist on their use. Schollnick did not indicate any reason for using the sheets only with respect to some deliveries, and I have credited Zornow that he was required to use them regularly. 13 Zornow so testified. Schollnick testified that he had no specific rec- ollection whether or not the predelivery inspection sheets were used for these vehicles, that to his knowledge he did not see such forms for them, but that he was not saying that they did not exist. He was not otherwise asked whether Zornow spoke with him about the condition of the trucks before delivering them. I have credited Zornow. " Arnold and Schollnick both testified to this conversation Their tes- timony is not in conflict except as to the place of the conversation and whether Arnold said that he had told Schollnick the trucks were not ready to go. I have credited Arnold. After Arnold had gathered his tools, he saw Scholl- nick in a hallway and told him he should not have fired him for the quality of his work. Schollnick made little response, and Arnold said that firing him would not do any good because it was too late and "We have already signed the cards." Schollnick did not respond. ' Staley worked at Xerox for 2 or 3 days until both trucks were repaired. He ordered a number of parts for them, but made the repairs without the parts, as they were not immediately available. He completed work on one truck by the end of his first day. The other took an additional day or more to finish. 16 The General Counsel contends, contrary to Respond- ent, that Respondent knew of Arnold's union activities, that it had union animus, and that it discharged Arnold for his union activities and not poor workmanship. With respect to knowledge, the evidence shows that the battery supervisor, Dano, was made aware of the em- ployees' and specifically Arnold's interest in a union a few weeks before the union activity started and that he reported the employees' interest to Dooley. In addition, Dano and Baltzer learned that cards were signed and who signed them. Although they denied passing that in- formation on to Dooley or Schollnick, it is not likely that after having initially told Dooley of employees' in- terest, Dano neglected or chose not to tell Dooley when the interest was converted into action. Likewise, it is un- likely that Dooley's secretary, Baltzer, actively inquired into the identity of the card signers but then kept the in- formation to herself. Moreover, between October 24 and October 31 Arnold and Zornow solicited Kandas and two mechanics in the shop to join the Union and to visit the union hall to learn what the Union had to offer. Given the small size of the shop, the identity of Kandas, and the likelihood that Dano and Baltzer transmitted what they knew, I find the inference warranted that the knowledge of the union activities and the identity of those who signed cards was transmitted to Dooley and Schollnick before October 31. 1 do not credit the testi- mony to the contrary. 17 Is Arnold, Zornow, and Schollnick were in essential agreement as to this conversation. except that Schollnick testified that after Arnold's last remark he told Arnold that he did not know what he was talking about. I have credited Arnold 16 Staley testified in substantial detail as to what was wrong with the trucks, in contrast to his statement in his affidavit that he could not recall what was wrong with them. Staley also testified that he was sent to Xerox early in the morning on October 31, leaving the shop at about 8 a.m. Either Staley is in error in this regard or he was sent before any complaint was received from Xerox about the trucks. I have concluded that Staley's recollection was not strong and that his testimony was col- ored by a desire to demonstrate support for his employer. 17 There is disputed evidence as to whether in addition a letter from union counsel requesting recognition was received by Respondent on the morning of October 31, before Arnold's discharge. According to Zornow and Knorr, Baltzer showed them the letter at about 11 that morning when it bore no date stamp on it. According to Baltzer, she received the letter on November I and stamped it immediately on receipt in accord with her consistent practice. According to Dooley, he first saw it on No- vember 1. While the date stamp is not conclusive, I have some doubt as to the accuracy of the recollection of Zornow and Knorr that it was Oc- tober 31 rather than November I when the letter was shown them, par- ticularly as Arnold did not file his charge until more than 2 months later and he significance of the exact date did not become important until Continued 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apart from Baltzer's interrogation of Knorr before Ar- nold's discharge, as found below, about a week before the election Schollnick made explicit threats to Knorr. These threats establish Respondent's hostility to the Union. 18 With respect to the cause of Arnold's discharge, Re- spondent introduced evidence as to Arnold's work record to support its contention that he was discharged, for poor workmanship. Schollnick testified to four in- stances in which Arnold was responsible for unsatisfac- tory repairs. Of these, however, it is clear from Scholl- nick's testimony that one, alleged poor work on a bucket loader, did not become known to Respondent until after Arnold's discharge. In addition, it appears from the testi- mony of Staley, who was clearly not hostile to Respond- ent, that with respect to a second, a repair for Lakeland Concrete, the nature of the problem and the insufficiency of Arnold's repair did not become known until after Ar- nold's discharge. The remaining two instances described by Schollnick occurred at least 2 months before Arnold's discharge. One involved a steering problem on a custom- er's forklift which Arnold worked on without success, until the cause of the problem was discovered with Sta- ley's aid. The other incident involved a brake repair by Arnold about which the customer continued to complain until Staley located the cause of the problem and elimi- nated it. Schollnick discussed the problems on each of' these jobs with Arnold. 9 There is no dispute that on October 31 the Xerox rental units were delivered while still in need of repair. The question is, however, whether Arnold was responsi- ble for the failure to repair them before delivery or Schollnick bore the responsibility by insisting on their delivery despite information from Arnold and Zornow that they were not ready. For reasons set forth above, I have found that Arnold was given only I day to work on the two trucks, that Schollnick and Dooley knew of his inability to complete the repairs, and that Schollnick approved the trucks for delivery despite this knowledge. Yet despite the fact that the repairs had not and could not have been completed before delivery, Schollnick then. I do not rely on their testimony in this regard. Similarly, I do not rely on Zornow's testimony as to remarks by Dooley which he over- heard in the locker room about Teamsters union activity. Insofar as ap- pears there was no Teamsters activity at the shop, it is likely that Zornow did not fully understand whatever it was that he heard. I note, however, with reference to Dooley's credibility in general that Baltzer's testimony as to what Dooley said to her on receiving the petition is in sharp contrast to his display of solicitousness to her sensitivities at the hearing when he expressed reluctance and then voiced an apology to Baltzer for quoting in her presence crude language used by Arnold on the day of the election. His reluctance and apology seem clearly to have been for effect. l8 In view of this evidence, I find it unnecessary to consider further Dooley's hostile behavior toward Arnold on the day of the election when Arnold appeared at the plant in order to vote. t9 Arnold conceded that there were problems on these jobs which Schollnick discussed with him but testified that Schollnick did not criti- cize his work. Schollnick testified that he attempted to speak to Arnold about these jobs but that Arnold did not take criticism graciously. In re- sponse to a leading question he testified that he talked to Arnold about his conclusion that Arnold had not done the work properly. However, when asked specifically what he said to Arnold, Schollnick testified only that he asked Arnold why he was having problems with these repairs, why they were taking so much time, and how they could correct them, consistent with Arnold's testimony. I credit Arnold. placed the entire responsibility on Arnold after Xerox complained. 20 Whatever the shortcomings in Arnold's work on the two prior jobs, it is clear that Schollnick did not deem these incidents as sufficient cause to terminate or disci- pline him. The Xerox incident furnished no additional cause. Rather it appears that Schollnik deliberately either placed Arnold in a position of vulnerability by insisting on delivery of the trucks before they were ready or after insisting on their delivery to meet the customer's dead- line sought, when the customer complained, to hold Arnold responsible for reasons unrelated to Arnold's workmanship. In either event I find the inference war- ranted that Schollnick's true reason was the recent union activities in which Arnold played an active role. I find that Arnold's failure to complete the repairs on the Xerox rental units was not the cause of his discharge but was used by Schollnick as a pretext to rid Respondent of Arnold for his union activities and that his discharge vio- lated Section 8(a)(3) of the Act. D. Alleged Threats by Scholnick A week or two before the January 5, 1979, election Schollnick asked Knorr to accompany him to look at a new building which Respondent was constructing. As they were returning Schollnick stopped the truck and told Knorr "You have to stop stabbing me in the back with all this Union bullshit and everything. You came to me when you needed a job and I hired you. I am not going to stand for it .... If you don't like it, you can just leave, because I am going to fire you and you are not going to vote, whether the Union gets in or not. If I hear anymore of this Union business or if I hear you dis- cussing this conversation with anybody outside, between us, that I am going to have you fired; and that includes not telling the Union lawyers or the Union or anybody." Schollnick also told Knorr that he would fire him if he voted in the election and that he would fire him for or- dering thousands of wrong parts or any other exaggera- tion that he wanted to come up with. Knorr said nothing in response. 2 ' 20 That Arnold could not have completed the repairs in one day was confirmed by Staley's report to Schollnick on the day of Arnold's dis- charge that extensive additional work was needed which Staley could not complete in one day. 21 Shortly before this incident Knorr, who was salaried, asked Barbara Baltzer to prepare a timecard for him and he started to punch the time- clock as he had for the first several weeks of his employment. When Schollnick saw the card, he ripped it up, told Knorr that he was not going to vote in the election, and that no one had said he could punch the clock. According to Knorr, the visit to the new building and the above-described conversation took place an hour later. Schollnick testi- fied that he was upset when he saw the timecard and ripped it up, telling Knorr that he was management and not someone who punched a time- clock. However, Schollnick was not asked about the visit to the new building and only denied generally that he had any discussion with Knorr about unions. From Schollnick's testimony as well as Knorr's it appears that Schollnick was upset with Knorr because he viewed his punching of the timeclock as inconsistent with Respondent's position that he was managerial. Clearly Schollnick's concern was not a matter of abstract principle but was tied to the pending election. Knorr's testimony is un- contradicted that within an hour of the conversation about the timecard Schollnick asked Knorr to accompany him on a visit to the new building, and I credit Knorr that Schollnick used this visit as an opportunity to tell Continued 92 DOOLEY EQUIPMENT CORP. I find that Schollnick threatened to discharge Knorr for engaging in union activities or voting in the election thereby violating Section 8(a)(l) of the Act. IV. THE CHALLENGED BALLOTS Having found above that Edward Arnold was discri- minatorily discharged and that Stephen Knorr was an employee within the meaning of the Act, I find that they were eligible voters whose challenged ballots should be opened and counted. There remain for consideration the ballots cast by John Lanseer and Cesare Aiello. Lanseer and Aiello were both employed full-time as welders by Eastman Kodak. Each performed work for Respondent as they were needed and available evenings and weekends. Lanseer started to work for Respondent in 1969 and Aiello around 1974. Respondent paid both on an hourly basis for work performed, although on one or two-occasions Lanseer was paid by the job rather than by the hour. They performed their work in Re- spondent's shop and utilized Respordent's equipment. Usually they were assigned heavy welding for the repair of forklifts which Respondent's other mechanics did not do. As necessary, they also dissassembled and reassem- bled forklifts in need of welding, and in that work they sometimes worked with Respondent's other mechanics. Usually they worked alone and often without supervision present. Lanseer and Aiello were paid either in cash or by check and on occasion Respondent repaid loans for them rather than paying them directly. Respondent did not deduct social security or income taxes from their payments, and they did not receive any fringe benefits. 2 2 Respondent's records of payment to Aiello show that in calendar year 1977 Aiello received only four checks. One in January, two in April and one in October, with a total payment for the year of $284.50. In calendar year 1978 Aiello received single checks in February, March, April, May, September, and October and two checks in July. His total 1978 compensation was $602.25. At the time of the hearing, Respondent paid Aiello $7 an hour. Respondent's records of payment to Lanseer show more substantial work on his part in 1978. Although he received no payments between June 22 and November 28, 1978, in November Respondent made a loan payment in Lanseer's behalf in excess of $2,000, and it appears that the payment reflected the accumulation of Lanseer's earnings between June and November. Lanseer received one or more payments each month from January through June and an additional substantial payment in December. His total compensation in 1978 from Respondent was $3,382.67. The questions to be answered are whether Lanseer and Aiello were independent contractors and, if not, whether as part-time employees they had sufficient com- munity of interest with Respondent's full-time mechanics to be included in the bargaining and worked with suffi- cient regularity to be eligible to vote. Knorr what would happen if he sought to vote as a bargaining unit em- ployee. I do not credit Schollnick's general denial. aa Lanseer testified that he was offered insurance benefits about 5 years earlier but turned them down because he had insurance from his full-time employment. From notations on the checks given to Lanseer and Aiello as well as the lack of deductions for social secu- rity and income taxes it appears that Respondent treated them as subcontractors for bookkeeping purposes. How- ever, that fact is not determinative of their status in this proceeding. 23 That determination depends on whether Respondent reserved the right to control both the results to be achieved by them and the means to be used in achieving them.2 4 Here the facts show that Lanseer and Aiello are skilled welders who perform their welding work essentially without any direction. However, in as- sembling and disassembling vehicles they take direction from Schollnick and occasionally work with other me- chanics. They do not determine when they will work but come to work as requested and needed by Respondent and utilize Respondent's shop and equipment. Both have full-time employment elsewhere, and there is no evi- dence that they make themselves available to perform welding by the job for enterprises other than Respond- ent. I find that Lanseer and Aiello were employees of Respondent within the meaning of the Act.2 5 Further- more, based on the nature of the work performed by them, the place of performance, their supervision, and the fact that they occasionally work with Respondent's mechanics, I find that they are properly included in the unit with Respondent's mechanics. In the case of Lanseer, Respondent's pay records indi- cate that he worked regularly throughout the year before the election and received substantial earnings up to the election. I find that Lanseer was a regular part- time employee and was eligible to vote. As for Aiello, in 1977 he worked only 3 months and received insubstantial earnings. In 1978 Aiello worked more hours, but most of his work was performed during the first half of the year. In similar situations the Board has used as a formula for determining eligibility whether or not an employee had worked a minimum of 15 days in the calendar quarter immediately preceding the eligibility date. 26 During the months of September and October Aiello's total earnings from Respondent were S73.50, and he had no earnings in the months of August, November, or December. Even assuming an hourly rate substantially less than his $7 rate at the time of the hearing, it appears that Aiello worked no more than 15 hours during this period. I find in these circumstances that Aiello did not work with sufficient frequency during the quarter pre- ceding the November 25 eligibility date to be eligible to vote in the election. Accordingly, I recommend that challenges to ballots of Knorr, Arnold, and Lanseer be overruled, that the challenge to the ballot of Aiello be sustained, that the Regional Director open and count the ballots of Knorr, Arnold, and Lanseer, and that he issue a revised tally of 2s Fraley & Schilling. Inc., 211 NLRB 422 (1974). 24 City Cab Company of Orlando, Inc..' Yellow Cab Company of Orlando Inc. d/b/a Yellow Cab Co. and Dixie Cab Co., 232 NLRB 105, 107 (1977). 25 Cf Local Union 224 and Local Union 830, United Association of Jour- neymen and Apprentices of the Plumbing and Pipefirting Industry, etc. (Ber- nard Pipe Line Company), 152 NLRB 902, 904, fn. 6 (1965) 2 Manncraft Exhibitors Services Inc., 212 NLRB 923 (1974), Daniel Ornamental Iron Co.. Inc., 195 NLRB 334 (1972). 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballots and such certification as thereafter may be appro- priate. V. THE REMEDY Having found that respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully dis- charged Edward Arnold, I shall recommend that Re- spondent be ordered to offer him immediate and full re- instatement to his former job, or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges. I shall fur- ther recommend that Respondent be ordered to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he normally would have earned from the date of his termination until the date of Re- spondent's offer of reinstatement, less net earnings, to which shall be added interest to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 27 Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Dooley Equipment Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union of Operating Engineers, Local 832, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interrogating an employee as to his union activi- ties and by threatening an employee with discharge if he continued to support the Union or voted in a representa- tion election, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(1) and 2(6) and (7) of the Act. 4. By discharging Edward Arnold because of his union activities, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) and (1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 28 The Respondent, Dooley Equipment Corporation, Rochester, New York, its officers, agents, successors, and assigns, shall: 27 See also Isis Plumbing & Heatag Co., 138 NLRB 716 (1962). 68 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 I. Cease and desist from: (a) Interrogating employees concerning their union ac- tivities. (b) Threatening employees with discharge because they support a union or vote in a representation election. (c) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because they engage in union activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer Edward Arnold immediate and full reinstate- ment to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of discrimination against him 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 pay- roll records, social security payment records, timecards, personnel records and reports, and all other records rele- vant and necessary to a determination of compliance with this Order. (c) Post at its Rochester, New York, place of business copies of the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Re- spondent's representative, shall be posted by it immedi- ately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. findings, 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. 29 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" 94