Great Falls White Truck Co.

GREAT FALLS WHITE TRUCK CO 539 Great Falls White Truck Company and Clayton Braden. Case 19-CA-4567 June 17, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 17, 1970, Trial Examiner George H. O'Brien issued his Decision in the above proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed timely exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed a brief in opposition to Respondent's exceptions. 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 powers in connection with this case to a three- member panel. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Great Falls White Truck Company, Great Falls, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE tire record in this proceeding, including my obser- vation of the witnesses and after due consideration of the posthearing briefs, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Montana corporation engaged in Great Falls, Montana, in the business of selling and servicing motor trucks. Respondent's annual gross volume of business exceeds $500,000, its opera- tions have an annual inflow across state lines of more than $50,000 and its operations have an an- nual outflow across state lines of more than $50,000, as these terms are used and applied in Siemons Mailing Service, 122 NLRB 81, and Carolina Supplies and Cement Co , 122 NLRB 88. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, and Aerospace Workers, Great Falls Lodge No. 1046, herein called the Union, is a labor organization which represents the mechanics, apprentices, and helpers employed in Respondent's Great Falls shop. The wages, hours, and working conditions of these (approximately 14) employees are governed by a contract between the Respondent and the Union ef- fective from May 1, 1968, to April 30, 1971. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges and the answer denies that on or about July 27, 1969, Respondent ceased to assign overtime work to its employee, Clayton Braden, and that it took this action because Braden filed a grievance with the Union. Prior to trial the complaint was amended by adding an additional al- legation that on or about the same date, and for the same reason, Respondent revoked its prior decision to send Braden to Kansas City to learn pump room operations and to assign Braden to work in the pump room when Respondent added this operation to its shop. Respondent moved to strike the amend- ment to the complaint on the ground that the added allegation was barred by the 6-month limitation of Section 10(b) of the Act. Following my denial of this motion the Respondent's answer was amended to deny this additional allegation. GEORGE H. O'BRIEN, Trial Examiner: On Februa- ry 24, 1970, a hearing was held in the above-enti- tled matter in Great Falls, Montana. The complaint, issued by the Regional Director for Region 19 of the National Labor Relations Board on December 18, 1969, is based on a charge filed November 10, 1969, by Mr. Braden's attorney, and alleges viola- tions of Section 8(a)(1) and (3) of the National Labor Relations Act by Great Falls White Truck Company, herein called Respondent. Upon the en- B. The Alleged Discrimination Clayton Braden was hired by Respondent on April 1, 1955, as a mechanic and is still employed in the same capacity. He has been a member of the Union since November 3, 1954, and presently holds the position of shop steward in Respondent's shop, represents the Union as a delegate to the Cascade County Trade and Labor Assembly, and is a 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative on the joint apprenticeship training committee. For some time prior to 1967 Braden was shop foreman. He currently performs every operation in the shop except for welding, and the specialized work done in the newly opened pump room. The Union contract guarantees to regular employees 40 hours' work per week at straight time and provides that if overtime is required by the Em- ployer it shall be compensated at the rate of time and one half. Employees are paid semimonthly. Braden worked some overtime during each of the first 14 payroll periods of 1969, averaging about 10 hours per pay period. Braden also carried keys to the shop and to the parts room. Braden's scheduled paid vacation started June 30, 1969. On Monday morning, July 7, Respond- ent's service manager, Art Rugwell, telephoned Braden at his home and said: It has been raining and kind of miserable out and I suppose you are not doing anything. We are holding a Cummins school over at the shop and I suppose you want to come. Braden replied that he would be at the shop after dinner. White Motor Company has a Cummins engine mounted on a trailer and employs an instructor to travel between the various agencies and demon- strate the operation, maintenance, and repair of this engine to mechanics employed by White franchises. The Union contract requires: 12. SCHOOLING Employees will be required to attend during off hours, but not on Saturday or Sunday or Legal Holidays twenty-four (24) hours of schooling per calendar year as it is made available without compensation. This would in- clude any type instruction pertaining to the in- dividuals trade as such. Example: Bodymen to paint and finishing but not general mechanics or machinists. General mechanics and machin- ists to schools pertaining to their end of the business or any schools that would be for the betterment of the individual or the trade or business. Any charges involved for schooling of this type would be paid by the employer. On Monday afternoon the Cummins school was attended by three of Respondent's employees, Steve Lord, Don Luedtke, and Braden. That even- ing the instructor, Jack Smith, said to Braden: "See you in the morning." School continued on Tuesday and Wednesday with only Braden of Respondent's employees in attendance. Rugwell had recalled the apprentice, Lord, to the shop because he needed him there and Luedtke had decided for himself that the school would not benefit him in his position as parts man. Prior to July 16, 1969, Respondent had decided to add to its shop operations the rebuilding of fuel pumps and injectors in an area to be designated as the pump room. An affiliated company in Kansas City then had a pump room in operation and it was also decided to send a mechanic from Great Falls to Kansas City where he could obtain both instruc- tion and practical experience in the proposed operation. Respondent's manager, George D. Gale, after discussing the matter with Rugwell decided to offer this opportunity to Braden, basing his selec- tion on the fact that Braden was the senior man in the shop. On July 16 after Braden returned from his vacation, Gale asked if he would be interested in working in the pump room. Braden replied that he would. The Kansas City training was discussed and Braden told Gale that he thought it was a good idea. At the regular union meeting on the evening of Wednesday, July 16, Braden prepared a written grievance, offered it to the membership as a mo- tion, and the motion was adopted. Braden's grievance was: To Machinists Lodge 1046 I am presenting a grievance against Great Falls White Truck Co. That while I was on vacation I was called by Art Rugwell to attend a school on Cummins Pumps and Injectors. That pursuant to Section 12 of the Agreement that it was required that I attend this class on my own time. That other machanics [sic] who were not at work during the time this class was in progress were not required to attend Further that Mr. Jack Smith, Instructor, told me that the class was scheduled by the first of January, 1969. That no mention of this was made during setting of vacation time nor until Monday morning of the start of the school. On Monday morning, July 21, Jim Murr, a union business representative, presented the above grievance to Rugwell in the presence of Braden. The only discussion was whether school attendance by Braden was voluntary on his part or whether he had been compelled by Rugwell to attend. Rug- well's position was that attendance was entirely voluntary. On July 27 a union committee comprised of two business representatives, one trustee, the sentinel, the vice president, and the financial secretary met with Gale and Rugwell. Braden was present and participated. Braden testified: Mr. McNichol (Business Representative) stated the grievance and the position, and Mr. Gale replied in what his position was, and then I stated that I didn't think it was right that the person should have to go to school during their vacation time, and also that if I wasn't going to be allowed any credit of time for this school that I should either be paid for the time I went GREAT FALLS WHITE TRUCK CO. 541 to school or given some other vacation time in lieu of the time I attended classes. 0. What did Mr. Gale reply to your remarks during this meeting? A. Well that he wasn't going to pay anything under any circumstances for it, and that he certainly wasn't going to send anybody to school that would cause him any trouble. And he considered this as causing trouble. And he remarked that I was a troublemaker and had gone to the union previously on other events that happened out there in the plant. Well, he mentioned the pump room, that I just wasn't going to get the pump room. Gale testified that at the July 27 meeting he told the union representatives: ... we let [Braden] know that the school was here. He wasn't ordered or even asked to come to the school. And that I wasn't going to pay him for it because he lives right down, goes right to the letter on the union contract and the union contract calls for three days of schooling at their expense. And it doesn't say anything about vacations or anything. So when he served the grievance, why, he is a great be- liever of technicalities so I got out the union contract and read it. Following this meeting, in the presence of Rug- well, Gale told Braden that he wasn't going to get any more overtime, adding: "I was going to live up to my contract, what amounts to 40 hours a week and I have to pay him 40 a week whether he works or not." Gale instructed Rugwell to pick up Braden's keys, since in the future he would be working only when the shop and the parts room were open for normal business. From August 1 through December 3, 1969, Braden received no overtime pay.' On Saturday, September 27, Rugwell phoned Braden at home and asked him to go out on a ser- vice call. Braden replied, "it would have to be cleared up first with George Gale before I could go." This would have been overtime work and, although Rugwell in fact had Gale's permission to assign Braden to the job, Rugwell did not inform Braden of this fact. On December 4 the overtime interdiction was quietly relaxed. Braden was in the middle of a big job at quitting time, and Rugwell asked him to finish it up, and he did. Braden's shop keys were not returned. Respondent's pump room started operations on Friday, February 20. Don Engebritson, who had received special training in Kansas City at Respon- dent's expense, was the pump room mechanic. In explanation of his actions detailed above Gale testified: Q. (By Mr. Larsen) Did you change your mind later about who should go to that pump room? ' Other mechanics, including Bodner, Sprague, and Hardenbrook, worked overtime during this period A. Yes, after [Braden 's] actions, I didn't feel that the head of a company , I am responsi- ble for all their expenditures, I didn't feel that, like I should spend any more of my company's money on a man that every time I turned around there was a grievance or there was al- Ways something wrong. He is the only one in my employ that I ever had any trouble with. And I didn't feel like I should spend any more money on a person of that type. Q. What money would be involved? A. Well, airplane, round trip airline ticket to Kansas City, hotel bills , eats and a week's pay. Q. Was there anyone else in the shop that was better qualified? A. Yes, I found that I had hired a boy, a young lad, [ Engebritson ] that had had approxi- mately four years' experience in pumps and in- jectors. This I didn 't know at the time. So I sent him to school . And my company and Kan- sas City said that he was top notch. He was ready to come back after two days, but I kept him down there for a week. 0. (By Mrs. Burkey) You changed, your mind around July 27th? A. No, no, I don't know when it was. It was sometime after that. I talked to Mr. Rugwell and we talked it over and I, "Boy," I said, "I don't know. Everytime he turns around he runs down to the union, and I just don't feel like I can spend any more of the boss' money train- ing a man of that caliber." Braden affirmed the truth of a pretrial affidavit signed before a Board agent on September 6, 1969, wherein he stated: Braden is an agitator and I haven't talked to him since that meeting. The union people will tell you the same thing, that he is a radical. That same evening [July 27] I told Braden that if he wanted to live by the book I would also, and he would get 40 hours a week. C. Concluding Findings 1 No matter alleged in the amended complaint is barred by the 6-month limitation of Section 10(b) of the Act. The law is concisely stated by the United States Court of Appeals for the Second Cir- cuit in N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484, 491: (1) A complaint, as distinguished from a charge, need not be filed and served within the six months, and may therefore be amended after the six months. (2) If a charge was filed and served within six months after the viola- tions alleged in the charge, the complaint (or amended complaint), although filed after the six months, may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge, and (b) oc- 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD curred within six months before the filing of the charge. All allegations of the amended complaint filed February 16, 1970, are encompassed within the fol- lowing language of the charge which was filed November 10, 1969: Since on or about the 21st day of July, 1969, the above named employer by its officers, agents or representatives , reduced the work schedule of Clayton M . Brandon [sic] because of his filing a grievance with International Association"of Machinists, Lodge No. 1046, Great Falls, Montana, and at all times since said date the employer has threatened reprisals against said employee and has made reprisals against said employee 2. An employee who asserts a claim pursuant to a collective agreement is engaged in furtherance of the same concerted activity which resulted in the making of the agreement, George E. Baumann, d/b/a Baumann Construction Co., 181 NLRB 556. The right to assert grievances of the type in question here is accorded by Section 7 of the Act, and protected by Section 8(a)(1) and (3) of the Act. N.L.R.B. v. Bowman Transportation, Inc., 314 F.2d 497 (C.A. 5). By depriving Braden of the op- portunity to work overtime hours at premium pay, by recalling Braden's shop keys, and by removing Braden from consideration as Respondent's designee to work in the pump room, Respondent did discriminate against an employee with respect to his wages, hours, and other conditions of em- ployment. This discrimination was motivated by Respondent's intent to discourage the lawful pro- tected union and concerted activity of presenting, through the Union, a grievance concerning terms and conditions of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth herein, occurring in connection with its operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices. It will therefore be recommended that it cease and desist therefrom and take certain affirmative action, as set forth in the Recommended Order below, designed to effec- tuate the policies of the Act. I shall not recommend in connection therewith that Braden be accorded special training in fuel pumps and injectors nor that he be assigned to the pump room in place and stead of Engebritson. There is no evidence on this record that pump room work is more renumerative or otherwise more desirable than the work of a general mechanic. The discussion between Gale and Braden on July 16 contained neither a firm offer, nor an unequivocal acceptance. Gale did not tell Braden that he would be assigned work in the pump room. Gale's inquiry, as reported by Braden was: "He asked me if I would be interested in work- ing in the pump room, and I said yes." The pump room was then only in its initial planning stage and Gale was then unaware of the superior qualifica- tions of Engebritson. CONCLUSIONS OF LAW 1. Great Falls White Truck Company is an em- ployer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, Great Falls Lodge No. 1046, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Clayton Braden for asserting a claim under a contract between Re- spondent and Braden's union , Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 4. By thus interfering with , restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent, Great Falls White Truck Company, its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discriminating in regard to the hire or tenure of employment, or in regard to any term or condi- tion of employment, or any of its employees in order to discourage employees from invoking the assistance of the Union or from union membership or activities therein. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed in Section 7 of the Na- tional Labor Relations Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make whole Clayton Braden for the loss of overtime earnings suffered as a result of the dis- crimination against him , with interest thereon at 6 percent per annum. (b) Preserve and, upon request, make available to the Board or its agents, for examination and GREAT FALLS WHITE TRUCK CO. 543 copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its shop in Great Falls, Montana, co- pies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Re- gional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' of Machinists and Aerospace Workers, Great Falls Lodge No. 1046, by discriminating in re- gard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our em- ployees in the right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for mutual aid or protec- tion, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as authorized by Section 8(a)(3) of the Act. WE WILL make whole Clayton Braden for the loss of overtime pay suffered as a result of the discrimination against him. I In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 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 In the event that the Board's Order is enforced by a Judgment of a United Stares ('nnrt of Appeals , the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." J In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 19, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activities on behalf of International Association GREAT FALLS WHITE TRUCK COMPANY (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 583-4532.