JLG Industries, Inc.

DI)t('SIO)NS ()F1: NA FIO)NAL ILABOR RILAT IONS BARI) JLG Industries, Inc. and Charles D. Kincaid. ('ase 6 CA 11024 Jul_ 18. 1979 I)F('ISION AND ORDER BY MMBliRS JENKINS, MIURPIIY. AND) TIRtISI)AI.t On March 30, 1979, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to those exceptions. Pursuant to the provisions of Section 3(b) of the National abor 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. In November 1977, employee Charles Kincaid filed an unfair labor practice charge against Respondent. On December 22, 1977, at the conclusion of Kincaid's merit review, Respondent's shift foreman stated to Kincaid, "[Y]ou shouldn't go to outsiders for help with problems concerning you in here with what we tell you to do, where to go, and how to do it." The Administrative Law Judge concluded, and we agree, that "[t]he statement ... would be meaningless un- less" the foreman "knew that Kincaid had indeed sought outside help": i.e., if Kincaid had gone to the Union. The Administrative Law Judge found, how- ever, that the foreman's remark fell short of implying any threats of adverse consequences, and he therefore dismissed the 8(a)(1) violation. Contrary to the opin- ion of the Administrative Law Judge, we find that the foreman's statement tended to place a restriction on Kincaid's union activities. As such, it clearly consti- tuted interference with, and restraint of, Kincaid's ex- ercise of his Section 7 rights and was therefore coer- cive and in violation of Section 8(a)(l) of the Act.' I Interstate Transport Securiry/Diviision of PJR Enterprises. Inc., 240 NLRB 274 (1979). We have taken this finding into consideration in deter- mining whether Kincaid's discharge violated the Act as alleged. We find it insufficient to alter our conclusion and finding, in agreement with the Ad- ministrative Law Judge, that the General Counsel has failed to establish by a preponderance of the relevant evidence that Kincaid was discharged be- cause of his union activity, rather than for cause. Thus, we note the serious- ness of the charged offenses (destruction of company property and theft} relied upon by Respondent in discharging him; that asserted offenses led to his prompt dismissal and occurred almost 3 weeks after the foreman made the above unlawful statement the absence of evidence showing disparate treatment for similar offenses; and, finally. that the violation finding merely emphasizes the fact of Respondent's admitted union animus. rather than adding a new dimension to the issue-such animus already having been considered by the Administrative Law Judge in reaching his finding concern- ing Kincaid's discharge, and again by us in affirming it. The Remedy I tlving found that Respondent has engaged in ccer- tain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ORD)ER Pursuant to Section 10(c) of the National l.abor Relations Act, as amended, the National l.abor Rela- tions Board hereby orders that Respondent. JG In- dustries. Inc., McConnellsburg, Pennsylvania, its offi- cers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with employee efforts to engage in union or other protected concerted activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its McConnellsburg. Pennsylvania, fa- cility copies of the attached notice marked "Appen- dix."2 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. It IS FURIIE R (RI)I REI) that the complaint be, and hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. 2 In the event that this Order is enforced by a Judgment f a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Onder of the National Labor Relations Board." APPENDIX NOTI('E To EMPIOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIL. NOT interfere with employee efforts to engage in union or other protected concerted activity. 243 NLRB No. 92 54( Jl( INI)t SIRIfS, IN(C W'1 ili N)I ill av like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Acl. .1J.( II S RI s, IN. D)E(ISION KARI II. BI s( IIMtN\. Administrati e Iaw .lucldge: T'his case arose upon a charge filed on March 6. 1978. h ('harles Kincaid and upon a complaint issued o, April 26, 1978. against Jl.(i Industries. Inc.. Respondent. Ihe complaint alleged that Respondent violated Section 8(a)(I). (3). and (4) of the Act by discharging ('harles Kincaid. and that Respondent violated Section 8(a)( I) of the Act hb instruct- ing Charles Kincaid not to file charges or give testimony under the Act or to seek the assistance of the UInion. Respondent's answer, tiled May 8. 1978. as amended, ad- mitted all jurisdictional allegations in the complaint, as well as the ('ompany's discharge of Kincaid. hut it denied the commission of any unfair labor practices. A trial was held befbre me on December 6. 1978. in McConnellshurg, Pennsylvania. Counsel for both parties filed briefs. pon the entire record. including my observa- tion of the witnesses and after consideration of the briefs filed by counsel. I make the following findings of fact and conclusions of law. FINDIN(i ()I FA( I JLG Industries, Inc., is a Pennsylvania corporation with its principal office and facility located in McConnellsburg. Pennsylvania. The Company manufacturers and sells hy- draulic lifts. It is admittedly an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The Union, International Brotherhood of Teamsters. Chauffeurs. Warehousemen. and Helpers of America. In- dustrial and Allied Workers, Local Union No. 32. is admit- tedly a labor organization within the meaning of- Section 2(5) of the Act. In March 1977, the Union began an organizational drive among several of the Company's 330 employees. On May 18. 1977, a representation petition was filed, and pursuant to stipulation for certification upon consent election. an election was held on July 14, 1977. in which the Union lost the election. The Union filed objections to the election and a rerun election was scheduled, but was subsequently with- drawn by the Union. Charles Kincaid, employed as a mechanic since June 5. 1972. played a leading role in the union drive. He had signed an authorization card and distributed union cards to about 19 of his fellow employees. He was a member of the Union's in-plant organizing committee and had union stick- ers affixed to his toolbox and welding hood. He attended two in-plant committee meetings in April and four organi- zational meetings in May and June. Three days before the election, he handed out leaflets and wore a Teamster T- shirt. Kincaid was regarded by David J. Goudreau. union president. as one of five most active union supporters. Al- though Ken Brumbaugh was the leader amon2 the union adherents Respondent generally admitted its opposition to the UInion, and that it had conducted meetings during vwhich it had expressed its iee.,s opposing the representation of its production and maintenance emplosees b the 'nion. Moreover. the record shows that in Ma5 or June. John I.. (Grove Respondent's president. approached Rex I)isens, an employee. and asked about union stickers which were at- fixed on the employee's helmet. When Dix.ens attempted to offer an explanation about the union emblems. (irose pro- ceeded to compare the Union to the Mafia and commented. "hov can one man be so dumb?" Respondent also expressed its antiunion position through its plant supervisor Eugene Swope. when, on June 13. Kin- caid and Swope met socially at the Masonic odge. )uring the ensuing conversation. Swope slated: "''I wish tou hadn't gotten involved with the Union. There's people that fro\wns upon it." Similarly. shortl after the union election on July 14. Kincaid spoke with Ihomas Botscharow,. who later be- came Kincaid's immediate supervisor, about the linion's loss. Kincaid indicated that he sished for another job and Botscharow replied: [Alfter this union business is over. there is going to be general house cleaning in the office and the shop area." November 1977. Kincaid contacted the Union to com- plain about being harassed by Foreman Fred Hlufflman and about being singled out by Huffman for his failure to wear safety glasses. The record shows that Hufflman had ordered Kincaid on two occasions to wear safety glasses. T'he Union promptly contacted the Board and filed an unfair labor practice charge. The charge alleged as unlawful conduct Botscharow's remark concerning the ('ompans's plans to clean house. In a subsequent interview with a Board agent. Kincaid also explained his accusations of- harassment in connection with the safetr glasses. However, after plans fr a rerun election set for December 8 were cancelled, the Union also withdrew the unfair labor practice charges. Respondent's conduct, which gave rise to the alleged 8(a)(1) violation occurred on December 22. 1977. in con- nection with the semiannual merit review. Present at the interview were Foreman Huffman and Supervisor Bot- scharow who explained a written evaluation of Kincaid (Resp. Exh. 2). The performance review assigned an overall rating of only "fair" to his work and rated several areas of his performance in greater detail. At the conclusion of the oral interview. uffman observed, "you shouldn't go to outsiders for help with problems concerning you in here with what we tell you to do, where to go, and how to do it." Although Kincaid testified that he never told anyone con- nected with his Employer that he had earlier contacted the Union or the Board. he assumed that Huffman's remarks referred to this subject. and informed Botscharow of this while they were both leaving the interview. On that occa- sion Kincaid said that he had gone to the Board for his own pl otection. Respondent's conduct giving rise to the 8(a)(3) and (4) violation related to an incident on January 9. 1978. when Kincaid. for his personal use, fashioned a set of fireplace tools out of company material. He had obtained the materi- als from scrap and two slag hammers which, according to 541 I)I.( ISI()NS Ot) NA IO()NAI. A(BOR REIA I I()NS BO()ARI) his testimony. "were laying on the floor close to the wall in [his] work area behind two trash cans.'' In his words, the condition of the slag hammers "was fair. 'lhe wasn't bad. They wasn't real good, hut they was lair. They were useable." lie denied that they were "practically brand new" and conceded that he sought no one's permission to use them. The replacement value of a slag hammer was esti- mated at about $4. o make the shovel and poker, Kincaid cut off the coil handle from the slag hammers, welded theml to the fire place tools, and threw the remainder of the ham- mers into the trash can. In the past, there had been no objection by the ('ompany to employees' making items for personal use, as long as they did it on their own time and from scrap material. In the past. Kincaid had made a dump trailer, a shovel plow. and other farm tools in accordance with company policy. In this instance, Botscharow, who had observed Kincaid cleaniig the tools, even complimented him for his skill in being able to fashion the items and voiced his approval when Kincaid told him that he had gotten the handles off of' two slag hammers he found laying against the wall. Prior to leaving the plant, Kincaid. from a secretary in the office, obtained a pass authorizing the removal of per- sonal, saleable, and nonsaleable items. Ihe items were de- scribed as "24 lbs. of scraps" and the box for "Purchase of saleable company property" was marked. On his way out of the plant, foreman Swope passed by, saw the tools, and said: "That's a nice looking job." On the afternoon of January 11, 1978. Botscharow told Kincaid that Swope wanted to see him. Assembled in Swope's office were Plant Manager George E. Smith, Per- sonnel Director Richard Huff'. and Swope. Smith then pro- ceeded to quiz Kincaid about the fireplace tools. Kincaid readily conceded that he had made the tools 2 days ago. When asked how he had obtained the handles. Kincaid re- plied that he had gotten them from two old slag hammers.' Smith then showed him the remnants of two slag ham- mers-which apparently had been placed on Swope's desk a day earlier by second shift Foreman Eugene Keehaugh who had retrieved them from the trash cans - and inquired from Kincaid whether those were the ones which he had used. Although these hammers appeared in new or partially new condition, Kincaid admitted that these were the ones. The record contains the two hammers, as well as a new one for comparison. In accordance with Respondent's testi- mony, an examination of their condition shows that one of the hammers appears as never having been used (Resp. Exh. 6); the other one appears to have been slightly used (Resp. Exh. 7). The General Counsel has not disputed this evidence. Following the brief confrontation involving Kincaid's use of two slag hammers, Smith informed Kincaid that he was discharged. Kincaid replied that he could not understand that they would fire him over something like that without a chance to make up for it or to pay for it. Although suggest- I credit Swope's and Smith's estimony to the extent of Kincaid's use of "old slag hammers," since that term is not far from the import of Kincaid's own testimony, i.e., "slag hammers that I found laying along the wall in my work area thal had been laying there for a week." or his description of1 their condition. "IT]hey wasn't real good, but they was fair." or his denial that they were practically brand new, and his opinion that they were discarded ing that the (ompany might do something other than fire" him, and explaining that he had gotten a pass, the coimpany oflicials repeated that he was fired. W'hcn Kincaid returned to his toolbox to clear out his belongings, he told Bot- scharow that he had just been lired t(; which IBotscharow expressed his surprise. 'Ihe Hourly F mployee's lIandbook of1' Jl(i Industries prosides that: (Resp. xh. 4): "In general, the foillowing violations are the principal ones which can result in dis- missal for cause: I. I)ishonest or theft 2. I)eliberate de- structiton or renoval of' conpan or fellow-eniployee prop- ertN . . . . Nevertheless, the General ('ounsel argues that the discharge w as motivated improperly. Immr/'rc nc ( oitll prolcl It ra/is Section 7 of' the National I.abhor ReKlations Act gives enm- ployces the right to engage in concerted activities for the purpose of' mutual aid and protection. An employee's ef:- forts to seek the assistance of a labor organization concern- int his working conditions tall squarely within the ambit of' that protection. and a employer's interfierence with that light violates Section 8(a)( 1) of the Act. T'he record is clear that Kincaid had contacted the Ulnion because he felt harassed, or as he explained later to his supervisor, to have an "ace in the hole." T'he Union filed a charge with the National l abor Relations Board and Kin- caid cooperated with the investigator process of the Board in anll interviewv with a Board agent. Even though Kincaid clearly testified that he had not informed his Employer of his actions in this regard and even though it was stipulated on the record that the Board had not notified the ('ompan of its investigation of' the charge, an inference is justified that Iluffman's statement during the D)ecember 22 inter- view with Kincaid had reference to his contact with the Union. TIhe statement. "you shouldn't go to outsiders for help with problems concerning you in here with what we tell ou to do. where to go. and how to do it." would be meaningless unless luffl'an knew that Kincaid had indeed sought outside help. Ilowever, I cannot agree with the G(eneral C'ounsel that this statement alone or in the context of' the totality of all circumstances, including the clear showing of this Employ- er's union animus, amounts to a iolation of Section 8(a)( ) of' the Act. To make out a violation of Section 8(a)( I) under these circumstances there has to be evidence of at least an implied or implicit threat, and the cases relied upon by Re- spondent recognize this requirement. In my opinion, Huff- man's remark fell short of' implying any threats of adverse consequences. Accordingly I dismiss the allegations of an 8(a){ I ) violation of' the Act. 71The discharge of Kincaid Section 8(a)(3) of the Act prohibits an employer's dis- crimination with regard to hire or tenure of employment to discourage membership in any labor organization. It is also well established that an employer has a right to take disciplinary action against his employees to promote order and efficiency in the plant. Iowever, if a discharge 542 JIG INI)tISIRIIiS, INC "for cause" is mainl', motivated bh antiunion consideration. it violates Section 8Xa)(3). for the question is: What was the real reason behind a discharge 2 In the case at hand, the record shows and Respondent has admitted the union animus. In addition, the record has fully established Kincaid as a union activist. Although not the most prominent of the union adherents. Kincaid was at least among the top five union supporters. As a result, the issue surrounding Respondent's true motivation in the dis- charge of Kincaid is concededly not an easN one). Mindful of the requirement that the burden of proof rests on the General Coun:el, I must conclude that a thorough and con- sidered review of the record evidence does not support his position. The General Counsel has not really disputed that this employee had indeed destroyed company propert,. and that his conduct in removing the handles from comipany property to build fireplace tools for his own use can fairlI be considered as theft, although the value of the material used may have been low. Moreover. I do not fully agree with the General Counsel's assessment of Kincaid's appear- ance of honesty and frankness towards his employer. To be sure, he did not hide the items from them, and he had ob- tained a pass, but when asked where he had gotten the handles, he carefully concealed the fact that the slag ham- mers were in new or almost new condition. lie merely ex- plained that the coil handles came from two slag hammers which had been laying behind the trash cans for a week. The general impression of such a remark is that these ham- mers had been discarded. There is no question that a toler- ant company policy. giving employees permission to tash- ion useable items for personal use out of scrap material with company tools and on company property had been abused. Kincaid had made liberal use of this company pol- icy in the past and was obviously familiar with it. It goes without saying that dishonesty. theft, and destruction of company property are among the most serious infractions of any company policy. even though the value of the par- ticular item may be slight. 2 My analysis herein i equalls aipphlcable it the 8(aH4) allegation Bolh sides submilled erN persualrse briets While I agree with the General (Counsel that the (ompa- n's sanction. i.e.. the discharge of an employee, under these circumstances appears unduly harsh, particularly since the items were of such low alue. and since Kincaid prcitously had not received any disciplinary warnings or suspension. the record does not support a tinding of; an disparate treatment. Respondent's list of warnings. suspen- sions. and discharges from 1975 to 1978 (i(. Th. 3) shows the number and identits of emplo ees who ere dis- ciplined during these yars. While the iGeneral (Counsel points to two employees who receiled a 3-day suspension for destroying compan property and others aho ere not discharged even though they had committed other infrac- tions oft compan} policy. there is no e idence thalt destruc- tion of property and theft bh others had been condoned or treated ith more smpathy than in this case. But there were examples of one employee who was discharged for wrecking a company truck andi not reporting the accident. and another discharge because of unauthoried absence and damage to comnpany equipment. (Considering that Kincaid was not the most prominent of the union activists, and that the (jeneral Counsel has not shown any disparate treatment or similar offenses. and fur- ther considering the relatively serious charges in ol ed here. I cannot find that union considerations were the true motive behind this dischargee CO ()N(I SIt)NS )i l.A) I. J G Industries. Inc.. is an employ'er engaged in com- merce within the mean;ing of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters. (hautleurs. Warehousemen and Helpers of America. Industrial and Al- lied Workers ocal nion No. 32 is a labor organizalion within the meaning of Section 2(5) of the Act. 3. 1 he (General (ounsel has tliled to sho b a prepon- derance of the eidence that Respondent Jl.(i Industries. Inc., violaled Section 8Xa)( I ). (3), or (4) of the Act. IRecommiended Order or dismissal mitted from publi- cation.] 543