Motor Service & Supply of Buffalo Inc.

MOTOR SERVICE & SUPPLY OF BUFFALO 657 Motor Service & Supply of Buffalo Inc. and International Union of Operating Engineers, Local 17C, AFL-CIO Cases 3-CA-3513 and 3-RC-4416 February 19, 1969 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for International Union of Operating Engineers, Local 17C, AFL-CIO, and said organization is not the exclusive representative of the Employer's employees in the unit heretofore found appropriate by the Regional Director for Region 3, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS TRIAL EXAMINER'S DECISION AND REPORT ON CHALLENGES TO BALLOTS STATEMENT OF THE CASES On October 21, 1968, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceedings, finding that the Respondent had not engaged in certain alleged unfair labor practices and recommending that the complaint herein be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. In addition, the Trial Examiner, having found that employee Edward Rocchio had been discharged for cause, recommended in Case 3-RC-4416, that his ballot not be counted. Thereafter, the General Counsel filed exceptions to the Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. 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 Examiner. Although the Trial Examiner recommended that the ballot of Rocchio not be counted, he made no disposition of Case 3-RC-4416. We shall therefore sustain the challenge to the ballot of Rocchio and issue a Certification of Results of Election. WILLIAM W. KAPELL, Trial Examiner: Case 3-CA-3513, a preceding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard in Buffalo, New York, on August 8 and 9, 1968,' with all parties participating pursuant to notice on a complaint= issued on July 17 by the Regional Director for Region 3 of the National Labor Relations Board, hereafter called the Board, alleging violations of Section 8(a)(1) and (3) by' Motor Service & Supply of Buffalo Inc., hereafter called the Respondent. The complaint, in substance, alleges that Respondent in violation of Section 8(a)(1) and (3) of the Act unlawfully discharged Edward Rocchio and thereafter failed and refused to reinstate him because of his union activities. In its duly filed answer, Respondent denied any violations of the Act, admitted the discharge of Edward Rocchio, and pleaded he was discharged for cause. In Case 3-RC-4416, a hearing was directed by an order of the Regional Director, dated July 17, to resolve the challenged ballot of Edward Rocchio at a consent election held on May 24, which is sufficient to affect the outcome of said election.' The hearing on said challenge was consolidated with the hearing in Case 3-CA-3513 by an order of the Regional Director, dated July 17. All parties were accorded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Respondent and the General Counsel filed briefs which have been duly considered. On the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the challenge to the ballot of Edward Rocchio filed in Case 3-RC-4416 be, and it hereby is, sustained. At all times material herein, Respondent has maintained its principal office and place of business in Buffalo, New York, where it is engaged in the sale, rental service, and repair of forklift trucks, and the sale of other automotive products not connected with forklift trucks. In the course and conduct of its business operations, during ' All dates hereafter refer to the year 1968 unless otherwise noted. 'Based on an original charge filed on May 22 by International Union of Operating Engineers Local 17-C, AFL-CIO, hereafter referred to as the Union, and amended charges filed thereafter on May 28 and July 12, respectively. 'A challenge to the ballot of another employee , Donald W. Speck, was, in effect, sustained when the parties stipulated (G.C. Exh. 3) that he was terminated on May 22, and has not since been reemployed. 174 NLRB No. 104 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- the past year, Respondent purchased , transferred, and had delivered to its Buffalo plant, goods and materials valued in excess of $50,000, of which in excess of $50,000 were transported to this plant directly from States in the United States other than the State of New York. Respondent admits, and I find, that at all times material herein it has been engaged in commerce as an employer within the meaning Of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that at all times material herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Background Edward Rocchio was hired in October 1966, by John Osberg, Respondent's parts manager. At that time Anthony J. Palisano was the owner of the business and he instructed Osberg to hire Rocchio after being impressed by the way Rocchio approached Osberg for business while in the employ of Tutton Electric Co. Rocchio was told that they were going to teach him the business and make a parts salesman out of him, a type of work which could require considerable training before one could qualify as an experienced parts salesman. Rocchio's duties included picking up the mail in the morning at the post office, distributing parts to the mechanics in the service department and listing them on the repair orders, filling orders from customers and packaging them for delivery, mostly on the company truck or by United Parcel Delivery, receiving deliveries and placing them in stock, organizing any outgoing generators, starters, or clutches for shipment, repairing starters on rush orders, and making deliveries with the company truck on routes prepared by Osberg. While making deliveries to customers, Rocchio was instructed by Osberg to solicit orders on parts in stock in an endeavor to create more business for the Company. During the course of his employment, he also made up three or four promotional sales kits, which were not highly regarded, in an effort to expand the sale of parts, a prime objective of the Company. About 2 months after he was hired, he assisted in taking inventory, but his work was so unsatisfactory because of errors in arithmetic and mistakes in missing shelves that he was advised he would not be asked to work on future inventories. About the end of January 1967, a new employee, a Mr. Webb, was hired and Rocchio's duties changed somewhat, but not substantially, in that he became assistant parts manager. Webb set up inventory controls and worked at the sales department counter, relieving Rocchio to the extent that he was able to devote more time to outside work, soliciting sales of parts. He called on the Company's regular customers and also unsuccessfully solicited business from friends and companies with whom he previously dealt with on a personal basis, such as gasoline and tire dealers, automotive repair shops, etc. In March or April 1967, Rocchio was made parts sales representative and was furnished with business cards indicating that title. However, he continued to perform his usual duties both in and out of the plant. Meanwhile, his salary, which was $90 a week when hired, was increased to $100 a week in January 1967, to $105 in January 1968, and finally to $110 in April 1968. While working he wore a uniform of blue pants and white shirt with the name "Ed" inscribed on it. Palisano sold the business to Dean M. Rockwell during June 1967, but he remained in charge of the parts department, services and sales, while Rockwell devoted his time to developing new sales of Towmotor items.' In December 1967, Palisano left the Company, and Rockwell took over his duties. At the end of 1967 at the suggestion of Towmotor, Rockwell made an analysis and review of the sales and other departments covering the preceding 6 months, which revealed that the service department had been losing a considerable amount of money. As a result, the service and the parts departments were completely separated. A further analysis for the months of January and February 1968 was made of the counter-type sales and sales of parts in connection with service work performed on customers' equipment, which showed that a certain amount of money was spent in trying to solicit business through the parts salesman while better than a good portion of the business was coming in through the service shop. Following conversations with each department head and representatives of Towmotor, Rockwell decided to train additional people in the service organization who could be of assistance to the service department, and to allow the service manager to go out on the road soliciting business from customers, both old and new, not specifically for parts but for service and parts as a package. As a result of the surveys and new plans, Webb, although a competent worker, was discharged because he was constantly late and excessively absent from the job. During February, Rockwell decided to replace Rocchio with the service manager, Tom Lutz, who would be helped in or put in charge of soliciting new business for about 4 hours a day on the outside. In anticipation of the proposed change, an assistant of Lutz was sent to the Towmotor school and Lutz was sent to the Caterpillar school to train and prepare them for the changeover. B. The Union Campaign In March, the Union began organizing Respondent's employees. During the second week of that month, Rocchio had supper at a restaurant with Osberg and a Mr. Peabody, a friend of Osberg and part-owner of an automotive bin service. In conversation, Osberg commented that the only _way Rocchio could benefit from the Union's advent, would be to transfer out of his (Osberg's) department. Rocchio listened to the conversation but said nothing. On April 21, Rocchio heatedly complained to Rockwell in rather foul language about the condition of the delivery truck which he drove in the course of his work. The truck, which was of rather old vintage and had previously required frequent repairs, had been the subject of several complaints by Rocchio. Rockwell made no comment but directed Tom Lutz, the service manager, to inspect and repair the truck and report back to him. Later that day, after Lutz had reported to him about the condition of the truck, Rockwell instructed Osberg to fire Rocchio for having used intemperate language. Instead of firing Rocchio, Osberg telephoned him at his home that night and warned him that Rockwell would not tolerate his use of profane language. On April 23, he gave Rocchio a 'Respondent was a franchised agent for Towmotor and the only place in Buffalo and the immediate area in which genuine Towmotor parts were obtainable MOTOR SERVICE & SUPPLY OF BUFFALO warning notice which stated that if he failed to stop using foul language, he would be subject to termination of his employment. Thereafter, Osberg noted an improvement in the language used by Rocchio. On April 23, the Union filed a petition seeking certification as the bargaining representative of Respondent's employees. On May 7, the parties and their attorneys met at the Board offices to discuss the nature and composition of the appropriate unit for purposes of bargaining representation. Respondent objected to the inclusion of Rocchio in the appropriate unit on the ground that he was a salesman. Also, in further discussion of Rocchio, either Rockwell or his attorney, Mr. Diefendorf, expressed their approval of the manner in which he was performing his job. On May 9, the parties and their attorneys again met at the Board offices. Rocchio also attended this conference and sat with the union representatives 5 A Stipulation for Certification upon Consent Election was signed at this conference providing for the appropriate unit,' and the election was set for May 24. At about that time or somewhat later, Respondent prepared a list of eligible voters, which did not include Rocchio's name. C. The Discharge of Rocchio On May 21, Leo Croszkowski, a driver for Buffalo Dye Company, one of Respondent's important customers, called at Respondent to pick up a part. He appeared in a rather upset condition because his boss was in a hurry to obtain the part and he had to make the pickup so late in the day, close to his quitting time. Upon being asked who was running the parts department at his Company, Croszkowski replied that it was Staley,' who didn't know what he was doing. Rocchio then stated that Staley couldn't find his way out of a whorehouse.8 After Croszkowski departed with his pickup, Osberg mulled over the incident and decided to fire Rocchio. Later that afternoon he wrote out an order discharging Rocchio, had the front office make out his checks, and gave them to Rocchio, who upon asking whether he was being laid off or fired was told that he was fired. Osberg then prepared a memo to Rockwell concerning the discharge, listing the reasons as follows: A continued poor attitude towards Osberg and his work, his continued but infrequent use of bad language, his defamation of a customer in the presence of a witness, and his ignoring the request from Buffalo Dye to make deliveries to them earlier in the day thereby straining their relationship. 'Rocchio had also been seen by Rockwell on a prior occasion during the preceding month at a restaurant in the company of Union representative Tom Hopkins "`Including all employees employed at the Employer 's 1109 Niagara Street operation including all mechanics , maintenance employees, drivers and parts department employees , Excluding all salesmen, all office clerical employees and all guards, supervisors and professional employees as defined in the Act " "The record reflects that Staley, the foreman at Buffalo Dye, had previously requested , rather than complained to, Rocchio to make his delivery of parts earlier in the day to avoid some inconvenience arising from late afternoon deliveries Although Rocchio advised him to call Osberg about making such arrangements, Staley waited until he received a call from Osberg a day or two later on May 21 in connection with some other matter before conveying his request to Osberg about earlier deliveries. 'This finding is based upon the testimony of Osberg. Croszkowski testified that he didn't recall whether Rocchio used any foul language, but wouldn't swear to it, and Rocchio did not testify about the incident D. Conclusions 659 In order to sustain a discriminatory discharge, it is incumbent on the General Counsel to show by the preponderance of the evidence that Respondent had knowledge of or was aware of Rocchio's union activities or sympathies, and that the discharge was motivated by antiunionism. As related above, Rocchio was seen by Rockwell in the company of a union representative at a restaurant during the Union's organizing campaign and again at the conference at the Board offices when he sat with the union representatives while the consent election agreement was signed. I find that these circumstances were sufficient to impress upon Rockwell that Rocchio was a union adherent and sympathizer, if not more. The proof of antiunion motivation poses a far more difficult problem. In carefully scrutinizing the record, I find that, aside from the Board conferences attended by the parties, the only reference to the Union occurred during the conversation between Osberg and Peabody while they were having supper with Rocchio. However, the conversation was, at most, only a friendly conversation between friends, and did not in any manner reflect a feeling or expression of union hostility; nor did Rocchio participate in the conversation. In fact, the record does not disclose the slightest trace of hostility towards the Union. The General Counsel, however, contends that the grounds stated by Respondent for the discharge were specious and pretextual, and when viewed in the light of the timing of the discharge, an inference arises that it was motivated by antiunionism. In considering these contentions, I am not unmindful that Respondent was unsuccessful in establishing that Rocchio was responsible for any diminution of sales because no records were kept to indicate such a result, or that his late afternoon deliveries to Buffalo Dye prompted a serious complaint which strained the relationship between it and Respondent.' However, the objection to Rocchio's use of profanity appears to be based on a legitimate and plausible, if not an incontestable, ground for his discharge. He was warned on April 21, as the result of an incident involving profanity, that his continued indulgence in such language subjected him to the risk of discharge. That risk materialized on May 21, when he again resorted to the use of objectional language. While it could be argued that obscene language is commonly used by male employees, possibly to a greater extent in the type of business involved herein than in more genteel occupations, yet an employer can insist upon observance of his own standards, provided they are not discriminatorily applied. There is a complete absence of any evidence to prove that Respondent engaged in discriminatory conduct prior to Rocchio's discharge, which could have adversely affected his rights to some extent. The absence of such evidence suggests that Respondent may have been motivated by something other than union considerations. Both Osberg and Rockwell asserted several times in their testimony that Rocchio did not reflect the image that they desired to project for the Company, and it is also apparent that Rocchio's use of foul language affected that image to 'The General Counsel also cites the omission of any reference in Osberg's memo to the managerial decision to replace Rocchio as additional support for an inference of union animus . It could be just as strongly contended that Osberg was voicing only those grounds for firing Rocchio over which he personally exercised jurisdiction. 660 DECISIONS OF NATIONALLABOR RELATIONS BOARD some extent . It was suggested that a change in ownership of the business from Palisano to Rockwell raised ethnic considerations concerning the image of the Company, which adversely affected the retention of Rocchio as an outside man. Realistically viewed and deplorable as it might be, such considerations in the business world are not unknown in affecting personnel changes to harmonize with the building of a new desirable company image.1' In an attempt to overcome Respondent's expressed or undisclosed reasons for firing Rocchio, the General Counsel stresses the timing of the discharge. This circumstance raises some suspicion concerning the cause for his discharge, especially in view of the fact that on the whole his work appeared to be satisfactory ," However, it is elemental that "Management can discharge for good cause, or bad cause, or no cause at all . It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification It may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids." Portable Electric Tools, Inc v. N.L.R.B., 309 F.2d 423, 426 (C.A. -7). Furthermore, "When the Board could as reasonably infer a proper motive as an unlawful one , substantial evidence has not proved the Respondent to be guilty of an unfair labor practice." N.L.R.B v. Fox Manufacturing Co., 238 F.2d 211, 214 (C.A. 5). Viewing the evidence in its entirety, and even assuming weaknesses inherent in the grounds attributed for "Consistent with this suggested change of image , Respondent had Lutz and another employee take traming courses to prepare them to take over the outside selling work. "I find the rationale of N.L R B. v. Great Dane Trailers, Inc., 388 U.S 26, inapplicable to the facts in the instant case. See Ottaway Newspapers, 169 NLRB No 156, fn 8. Rocchio's discharge and its suspicious timing, I find and conclude that the General Counsel failed to establish by the preponderance of the evidence that Rocchio's discharge was motivated by union animus. I, accordingly, shall recommend that the complaint herein be dismissed in its entirety. IV. THE CHALLENGED BALLOT OF ROCCHIO, CASE 3-RC-4416 In view of my finding that Rocchio was discharged prior to the election for nondiscriminatory reasons, it became unnecessary to determine whether or not he should have been included in the appropriate unit. His discharge per se rendered him ineligible to vote, and, accordingly, I recommend that his ballot be discarded. Upon the foregoing findings of fact and upon the entire record in Case 3-CA-3513, I make the following: CONCLUSIONS OF LAW 1. At all times material herein , Respondent has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 2. At all times material herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint in Case 3-CA-3513 be dismissed in its entirety.