Ozark Mack Trucks, Inc.

OZARK MACK TRUCKS, INC. 755 Ozark Mack Trucks, Inc. and General Drivers, Sales- drivers, Warehousemen and Helpers, Local Union 245, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases 17-CA-5776 and 17-RC-7307 August 6, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKiNS, AND PENELLO On April 9, 1974, Adminstrative Law Judge Phil Saunders issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a motion to correct certain inadvertent errors appearing in the Administrative Law Judge's Decision.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER vers, Warehousemen and Helpers, Local Union 245, affili- ated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, herein the Union, a consolidated complaint against Ozark Mack Truck, Inc., herein the Company or Respondent, was issued on November 19 alleging violations of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. Re- spondent filed an answer to the complaint denying it had engaged in the alleged unfair labor practices. A hearing in this proceeding was held before me, and both the General Counsel and Respondent filed briefs. Upon the entire record in this case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing.2 FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The Respondent is a corporation engaged in the retail sale and service of automotive trucks and trailers from its principal place of business located at Springfield, Missouri, and in the course and conduct of its business operations from this location the Respondent's gross volume of busi- ness exceeds $50,000 per annum. In the course and conduct of its business operations at its principal place of business at Springfield, Missouri, the Respondent annually purchas- es goods and materials having a value in excess of $50,000 directly from firms or enterprises located outside the State of Missouri. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order of the Administrative Law Judge and hereby orders that Respondent, Ozark Mack Trucks, Inc., Springfield, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. IT IS FURTHER ORDERED that the Regional Director for Region 17 open and count the challenged ballots of Robert Collier, Jack Huffman, and James Poyner and issue the appropriate certification. ' The requested corrections are fully supported by the record evidence. therefore, we shall grant the General Counsel 's motion and correct the Ad- ministrative Law Judge's Decision accordingly - in the first sentence of sec 111, change "$50,000" to '3500,000", in the last sentence of sec 111, par 1, change "Walter" to "Robert"; in sec Ill, par 15 , change the phrase "the truck engine still did pull as it should " to "the truck engine still did not pull as it should " DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Judge. Based on a charge filed on September 28, 1973,' by, General Drivers, Salesdri- II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that on various dates in September the Respondent's president, Walter Gilomen, interrogated employees, solicited grievances, promised benefits, created the impression of surveillance, and threatened employees with discharge and loss of existing benefits because of their activity on behalf of the Union. It is further alleged that on September 24 the Respondent unlawfully discharged Wal- ter T. Collier, Jack D. Huffman, and James D. Poyner. As part of its business operations the Respondent main- tains a service and parts department employing mechanics and other people, and this case evolves out of effort by the Union to organize the Respondent's employees in these departments. The Respondent came into existence and started its busi- ness operations in March, 1971, and the business covers the 1 All dates are 1973, unless specifically stated otherwise 2 All credibility resolutions made herein are based on a composite evalua- tion of the demeanor of the witnesses and the probabilities of the evidence as a whole 212 NLRB No. 116 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complete spectrum of a truck dealership operations. It ap- pears that when President Gilomen initially established this business and first acquired his personnel, he relied for the most-part on local people who had worked for a previous Mack Truck dealer. Both Jack Huffman and Jim Poyner were hired in April, 1971, and Bob Collier was hired in February, 1972. Gilomen stated that his goal when beginning this business was an attempt to get the best qualified mechanics he could find, and in order to do so paid a premium wage. It appears that Gilomen had many years of experience with truck sales, but only had occasional contacts with the service end of the business and for these operations had to rely almost entirely on his service manager-who ever that might be. The business operations of the Respondent is divided into three basic departments: (1) sales department; (2) service department with a parts facility; and (3) an office personnel department. Gilomen is in charge of sales, a service manag- er is in charge of the servicing shop and the mechanics, and an office manager is in charge of bookkeeping and office personnel. It appears that the service manager was delegat- ed considerable authority in the operation of the service department due to Gilomen's limited background and expe- rience in this area, and Gilomen said that he relied on the judgment of the service manager as to how this department should be operated. Gilomen explained that the service department in any new venture of this kind is initially expected to lose money, but he said eventually the service department should pay the overhead of the business, and when this department is func- tioning properly it should operate at a rate of absorption of at least 100 percent. The term "absorption" refers to the amount of overhead that the service department absorbs through its operation. Gilomen testified that even in the second year of his operations the service department could not carry the overhead, but he was able to continue in business due to increased sales, and said that these same circumstances and patterns continued during most of 1973 up until the expected fuel shortages reduced his sales. Gilomen testified that in efforts to bolster his service department in 1972, he had talks with his service managers, and also held shop meetings with his mechanics on various occasions in an attempt to find out what was wrong. It appears that Service Manager Charles Esteps quit in June, 1972, and Gilomen then employed two or three interim managers before hiring George Hilditch-who was service manager during 1973 and up to the time of the three dis- charges here in question .3 There were also certain other background developments in 1973 which should be men- tioned. A new building facility was completed, and in March all operations were moved to this new location. Also in March, Orville Langford was hired as office manager. Langford stated that when he took over the books they were in a "deplorable condition," that no monthly reports had been closed since December, 1972, and that Gilomen did not receive any 1973 reports on the service department until mid-March. The service department keeps track of the amount of 3 Hilditch did not testify in the trial before me. hours to be billed to a particular customer through a time ticket system whereby the individual mechanics themselves would note the amount of the time they worked on each job, and then this information is attached'to the actual invoice so a total billing could be prepared for each customer at the end of the repair job. The Respondent maintains that under this "old ticket" system only an employee's total time could be ascertained on a particular job, and there was inadequate space for any further breakdowns and it was impossible to pinpoint whether or not any one mechanic was at fault for low productivity on a particular job, or whether he might be responsible for some possible defective workmanship. Gilo- men testified that on the recommendation of Service Man- ager Hilditch he ordered new time tickets in June or July, but they were not delivered or used until late August. Re- spondent maintains these new tickets provided additional space so mechanics could write in their particular job func- tion or operation which he performed, and permitted super- visors to see exactly the work of each employee and the individual amount of time involved on each job. Gilomen said that in the summer of 1973, based on the continual problems he was still having with the service de- partment and mounting customer complaints, he finally de- cided to devote more of his time to this department and in July and August did so. It appears from this record that Joe Busseel had been a customer of the Company ever since 1971 and purchased three trucks from Gilomen, but in 1972 started complaining about being overcharged for labor on some of his repair work, and in 1973 his overcharges were further aggravated. Busseel said that in the first half of 1973 he paid Respondent approximately $6,000 worth of personal service business not counting accident business paid for by insurance. It appears that Busseel had one accident in April 1973, and other than $500 deductible, the damage was paid for by insurance, but nevertheless, Busseel complained to Gilomen about the repairs. Busseel testified that the truck involved was in the Respondent's shop for 60 days and during this period he visited the shop several times and in so doing observed certain employees "not doing much of anything" on his truck while they were waiting for parts, and he con- cluded there was a great amount of wasted time that should have been spent working on other jobs. He specifically iden- tified dischargees Huffman and Poyner as those employees wasting time. In July, 1973, Busseel had a second accident and the truck involved was in the Respondent's shop until the last of August. Busseel stated that this truck was also covered by insurance, but during the repairs he again visited the service department and on one occasion noticed "there wasn't any- thing going on" and that Poyner and Huffman were "on the clock" while waiting for parts to arrive. Busseel concluded that if the charges on these "insurance jobs" were any indi- cations, the Respondent was also overcharging him on the rest of his repairs not covered by insurance, and he then told Gilomen he could not afford such charges and would not be back. Busseel said that he was also upset by the fact that he often had to return to Respondent's shop because the trucks were not fixed right. Gilomen testified that his main concern on one of the jobs for Busseel was that he lost money on it because it took a total of about 350 hours to OZARK MACK TRUCKS, INC. make the repairs, and it was bid on for 220 hours . Gilomen said he was also faced with losing a very good customer. D. L. Barber brought his truck to the Respondent's shop on April 20 for a repair job , and this truck was apparently returned some 11 times in an attempt to correct the "jerk- ing" problem . Barber testified that he also lost the use of the truck for approximately 6 weeks which cost him $150 to $200 per day in loss income . Barber stated that even after all of the efforts and expense to correct the problem , he then had to "retire" the truck, and it could be used only for light hauling duty. since its original problem was never corrected. Barber also had discussions with Gilomen after receiving his bill, and in late June it was agreed that a $980 . 11 credit would be given Barber on a total repair bill of just under $3,000. Gilomen said that Poyner was the leadman on the Barber truck, and put in approximately 95 hours on this job. It appears that the night crew put in some 16 hours and that the total time on the job comes to 185 hours. There were two service jobs in progress during September which also bear directly on this case . These jobs were the rebuilding of an injection pump for Erickson Transport, and repairing a truck for Larry Holmes which was a major engine job . The Erickson pump job came into the shop in late August, and Collier was the prime employee on this job. Collier acknowledged that when he first received the pump it had "hardly" any miles on it, and that the customer mere- ly wanted the pump "checked out" before putting it on a new engine. It appears that after Collier's initial work with the pump in early September it was returned to the customer but a few days later Collier was instructed to go over to Enckson's shop in an attempt to correct the pump's mal- functioning . Collier acknowledged that the timing phase was wrong at the time and that the pump was then removed and brought back to the Respondent 's shop. He admits a mistake on his part in this second repairing operation by not calibrating the pump . Later on Collier ran several calibra- tions and replaced barrels and plungers, and stated that the pump then appeared to be functioning properly so he in- stalled it, but was told that the truck engine still did pull as it should . In all Collier worked on this pump four different times, but finally it had to be "retired" to the stock shelf and could not be used on the Erickson truck. Gilomen testified that this job entered into his decision to discharge Collier as he faced a monetary loss and also the possible loss of a customer. Gilomen said that he was unable to bill the cus- tomer and that there was about 53 hours on the job or $636, and he had to absorb the entire amount. Gilomen further testified that injection pumps could be exchanged with a St. Louis firm at an exchange cost of $285 and that a large investment was made by the Company in fitting an injection pump room with equipment so that pumps could be rebuilt on the premises, and he also said that Collier had been sent to a special school in the spring of 1973 in an attempt to learn more about pumps . Gilomen than specifically mentioned three other injection pump re- build jobs which all involved Collier-one performed on May 5, another on June 18, and a third one on July 9 .4 Resp. Exh 4, 5, and 6 757 Gilomen stated that Collier was aware of his objective to stay within the $285 exchange cost, but on the three jobs just mentioned there was a $1,194.62 customer cost on one (Resp. Exh. 4), a cost of some $515 to the Company on another (Resp. Exh. 5), and a further cost of some $525 to the Company on the remaining job (Resp . Exh. 6). Gilomen testified that these jobs and documentations of the costs also influenced him in his ultimate decision to discharge Collier. The Holmes job was initially brought into the service department on August 28, and Gilomen had stated that it would take approximately 2 weeks to repair the damage done to this truck . It appears that Larry Holmes had been a customer of the Company for approximately 8 months and other members of his family also used Mack equipment. The damage to the truck in question was caused by a piston blowing through the side of the motor , and which required the installation of an entirely new engine Holmes stated it was very important for him to get his truck back as soon as possible in that he was hauling farm produce and was, at that time, bringing in about $400 per day with it , and be- cause of these circumstances he made visits to the shop and periodically check on the progress of the job, and immedi- ately noted the progress was very slow . Holmes testified that as a result of the slow work on his truck he actually began timing Huffman and Poyner who were working on it. Holmes stated that in timing Huffman it was noted that he worked only about 35 minutes out of an hour, and in timing Poyner it was observed that he was off on other jobs so often it was even difficult to get a timing on how much time he spent on the Holmes truck . Holmes said he then realized he was paying the total labor costs for these mechanics, but they were really not working on his truck all the time. The Holmes job was completed 1 week late, and he got the truck on September 18. Holmes said that during this one-week delay the market for his product began falling and he realized he was going to take a loss. Holmes also testified that the truck itself had not been repaired correctly, and it gave him enough problems so within a few days he had to bring it back to the service department for additional work. The Company finally gave Holmes a credit for about $900 on his repair bill. Gilomen testified that he investigated the delays in the Holmes job and with the new time tickets, now used for the first time, he could see there was excessive time building up on the job and that his original estimate would not cover the labor outlay being made . He also stated that his final analy- sis showed that approximately 96 labor hours were spent on the job while only 63 hours had been bid on it , and that the employees who spent the most time on the Holmes' job were Huffman and Poyner. The Union initiated its organizational campaign among Respondent's employees during the latter part of August, and on August 31 a meeting was held and authorization cards were obtained from several employees including Huffman, Collier, and Poyner. On September 4 the Union sent a letter to the Respondent demanding recognition and which was subsequently received by the Respondent on or about September 6. On September 5 the representation peti- tion in Case 17-RC-7307 was filed by the Union and which culminated in a Board conducted election on September 27 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pursuant to an election agreement executed by Respondent and the Union. The ballots of the three alleged discrimina- tees herein and one other were challenged by the Company on the basis that they had been lawfully terminated and therefore could not vote.5 Following the receipt of the Union's demand letter, and the letter from the Regional Office stating that a petition for election had been filed and that notice must be posted, which was done, Gilomen contacted his attorney and also one of his competitors-Cummings Diesel-whose employ- ees were covered by a bargaining agreement with the Team- sters. Gilomen said that Cummings gave him a breakdown of their labor rates, wage 'schedules, classifications, and other information, and that he then contacted the Board's Regional Office in Kansas City and discussed his situation with an agent there. On the morning of September 7, Gilomen had a meeting with his day shift employees including the three alleged discriminatees herein. Gilomen told those present that he had received a letter from the Union advising him a majori- ty of the employees wanted "to go union," and he then asked the assembled employees if this was true. In response Gilomen got "the yeas and nays from both ends of the room," but testified that the "noise" for the Union was off in the "right hand side of the room" and that was where Collier, Huffman, and Poyner were seated. Gilomen told the employees that he had compared their salary scale with the wages paid at Cummings, his competitor who had a bargaining agreement, as forestated, and if the Respondent agreed on a contract some of his mechanics would take a "reduction" or "cut" in pay. During this meeting Gilomen also inquired as to why the employees wanted a union, and this was followed by a discussion about retirement and insurance programs and various other working conditions and complaints. The Respondent argues that this encounter with the Union was Gilomen's first experience with any organizing campaign and, therefore, he sought the advice of others, as previously noted herein, and then followed it. The Respon- dent also relies on a statement by Gilomen during the meet- ing on September 7 to the effect that "he was not against the Union." It is well established Board and court law that in de- termining whether an employer's conduct amounts to inter- ference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer' s intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by, the Act. It is further well recognized that the illegality of such inquiries and remarks are not cured by the casual nature of the conversation or the personal relationship of the parties thereto, nor by the employee rejection of such questions or statements. The foregoing statements that have attributed to the Re- 5 At the time of the election there were I I eligible voters-3 cast ballots for the Union, 3 cast ballots against, and 4 ballots were challenged The challenged ballots, of course, are sufficient in number to effect the results of the election The fourth challenged ballot was that of Newton Gibson, but upon investigation it was determined by the Board's Regional Office that there was insufficient evidence to sustain an allegation that Gibson was discruninatonly discharged spondent include instances of interrogations as to whether the Union represented a majority,6 why the employees wanted a union, and a threat of reduction or cut in wages if the Union was successful: All of which, under these condi- tions, reasonable probability, purposes, setting, and se- quence of events here, have the effect of interfering and restraining the employees and constitute violations of Sec- tion 8(a)(1) of the Act. On September 19 discriminatees Collier, Huffman, and Poyner were notified by George Hilditch, Respondent's ser- vice manager, that Gilomen wanted to meet with them. Gilomen began his conversation by accusing Collier of de- liberately "sabotaging" or "screwing up" the fuel injection pump on the Erickson job, as aforestated, and also informed him that he believed Collier had deliberately engaged in such conduct because of "this damn union thing." Gilomen then accused Huffman and Poyner of spending too many hours on Larry Holmes' truck on which they had recently worked, as previously indicated herein. Later on in this meeting of September 19 according to the credited testimo- ny of Collier and substantially corroborated by the testimo- ny bf 'Huffman and Poyner, Gilomen made the following statement to them: "You guys know that if you go union that you are going to get a cut in wages. I am not paying over scale and paying for all those damn fringe benefits. Sometimes I just get so damn disgusted up here that I am thinking of clean sweeping the place and hiring all new guys." 7 The foregoing statements credibly attributed to Gi- lomen again threatened a reduction in wages or economic reprisals, and also contained a clear threat of discharge because of union activities, and I so find.' Gilomen testified that on September 21 he called a mana- gerial meeting with Service Manager Hilditch and Office Manager Lanford, and the meeting specifically concerned Huffman, Collier, and Poyner. Gilomen said he questioned Hilditch as to the accuracy of the job records accumulated, and was told they reflected a true picture. As to the meeting on September 21, Office Manager Langford testified, in part, as follows: Q. Was there any reason discussed at the Friday meeting why they were tentatively scheduled for dis- charge? A. Yes. It was a very hard decision to be made. I personally have been in the position of management for years. I hate to ever let anyone go. I think all of us hated the idea that the action had to be taken. Q. And what was the reason? A. The reason for discharge? 6 The Board in Struksnes Construction Co, Inc, 165 NLRB 1062 (1967), held "Absent unusual circumstances, the polling of employees will be viola- tive of Section 8(a)(1) of the Act unless the following safeguards are ob- served (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assur- ances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere." ' Gilomen said that this was the first opportunity he had to use the infor- mation collected by the new time tickets as the Holmesjob had been tabulat- ed, and he wanted to find out if there were any "sensible answers" for the delays Gilomen adnutted a remark to Collier about being too busy "worrying about the union" to do his job properly on the Erickson pump. OZARK MACK TRUCKS, INC. 759 Q. That is right. A. It was simply a matter of keeping the front doors of the business open and keeping the customers we had and try and get new ones. We were getting a very bad reputation servicewise. Q. Was there any other reason discussed? A. No, Sir, no other reason came up . It was solely a business proposition. Gilomen acknowledged that he was still uncertain as to exactly what could be done since he was in the middle of an organizational campaign, and due to the fact that an election had been scheduled on September 27. Gilomen testified that based on this concern he again conferred with his corporate counsel, and also conferred with an agent of the Board's Regional Office. Gilomen said it was then de- cided to let the alleged discriminatees go, but over the week- end he let the matter stand.' Gilomen testified that on Monday, September 24, he re- ceived reports from the shop that Collier was "walking around in circles" instead of working and that Larry Holmes was on his way back with his truck for more repairs, and with these additional factors he finally decided to dis- charge the three and that Hilditch and Langford agreed with him. The alleged discriminatees were told that they were costing the Company too much money and in these respects the Erickson, Barber and Holmesjobs were specifi- cally mentioned. The Respondent maintains that it is also significant to be aware of the changes which have taken place in the service department since September 24, and at the hearing present- ed certain evidence in respect thereto. There was testimony that Larry Holmes did bring his truck back after it had been initially repaired, and on at least one occasion after the discharges of Huffman, Collier, and Poyner so that a new mechanic worked on the truck. Holmes said he was then well satisfied and the truck performed as it should. D. L. Barber also said that he experienced good results after Sep- tember 24. Paul Baum, a mechanic and union supporter, testified that since the discharge of the discriminatees the service department had one of its best months in October, and said that the shop was putting out a lot of work and with not too much coming back. The record contains a few other instances of work done prior to the discharges and suppos- edly similar work subsequent to the discharges, but the lat- ter all showing a reduced number of hours to make the repairs. Following the three discharges here in question, Gilomen 8 In addition to specific repair jobs already noted herein-Gilomen also mentioned several other jobs involving the discriminatees and on which he relied in reaching his decision to discharge them One such job was per- formed by James Obenshais in early May, and Huffman and Collier account- ed for 112 of the 130 total hours Gilomen said he had to absorb a loss of some 58 hours. Gilomen testified he also got the results of a job involving a truck belonging to Wades Poultry which was almost completed by Septem- ber 24, and stated this work was done by Paul Baum and was the first engine overhaul he could remember where the Company made a profit He said that usually such major jobs had been given to Collier or Huffman Gilomen also mentioned the repair work in February to Bill Monsel's tractor and that he had to absorb $800 loss on it He said Huffman had some 94 hours of this job and Collier about I I hours called a meeting of employees on September 26, the day preceding the Board's election in the representation case. Paul Baum testified that during the course of this meeting Gilomen informed employees that he was consulting outsid- ers about a pension plan the employees had expressed an interest in at the September 7 meeting, and that Gilomen also again informed his employees that the Teamster con- tract with Cummings was paying less wages to their me- chanics than he was paying. After the meeting of September 26 was concluded, Baum then initiated an individual con- versation with Gilomen concerning the Respondent's rea- sons for discharging Collier, Huffman, and Poyner. Baum stated that during the course of their conversation Gilomen told him he believed that Collier had been the instigator of the Union's organizational effort and Gilomen's reasoning in this respect was based upon his assertion that Collier had tried to get his secretary, Anita Brownfield, to join the Union.9 Gilomen then showed Baum certain time tickets and records supposedly revealing the excessive length of time it had taken the alleged discriminatees on their repair jobs A few mechanics in the shop also related their first-hand experiences and knowledge of the working habits of the three dischargees. Paul Baum stated that he had worked directly with Collier on a head gasket job and in which Collier's failure to follow his advice resulted in wasted labor time. Collier, however, was senior to Baum. Charles Jarrett, a mechanic and working foreman in the service department related in his testimony the uncooperative attitude ex- pressed by Huffman, Collier, and Poyner with regard to his, Jarrett's, assertion of authority. According to Jarrett, Huff- man moved at his own pace, Collier took his own time, and Poyner would continually "ride the clock" after he had finished a job in an attempt to avoid being reassigned to a new one.10 Final Conclusions As pointed out, the Respondent has assigned economics as its reason for the discharge of the three discriminatees herein, namely that they were spending entirely too much time on various customer repair jobs, and with a resultant loss of business. However, I find these reasons to be pretex- tual and that the real motivating cause for the discharges were union activities. In the instant case there is abundant evidence, including admissions by Respondent, that it was aware of the three discriminatees' union activities and their support for the Union, nor has Respondent specifically asserted a contrary claim. As indicated earlier herein evidence of knowledge concerning the discriminatees' activities was initially gained as a result of the Respondent's unlawful interrogation of its employees, and 5 days before their discharges Gilomen again specifically mentioned and noted their union activity 9 Collier acknowledged that he had spoken to Gilomen's secretary con- cerning the Union is In September Gilomen had classified Huffman and Collier as "A" me- chanics on certain documents sent to the Board See G C Exh 3 and 4 Gilomen knew that an A mechanic was a first line journeyman who did not require supervision or help, but testified he had received such information from Cummings and was merely passing it along 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he met with the three discriminatees on September 19.11 There is a good deal of testimony in the record bearing on the constant and continual difficulties with the service department ever since its inception, and statements by Gilo- men that for a long time the department had needed and required his attention. However, a close examination of this record reveals that it was not until the advent of the Union before Gilomen actually got seriously involved with the service department. Gilomen was asked why the excessive delays and other complaints against the three discriminatees did not raise doubts at an earlier time. In response to this question Gilo- men claimed that it was not until the Respondent initiated the use of new time tickets in late August that he was able to determine the three discriminatees were the cause of the service department's problems. A comparison of Respondent's new time tickets (Resp. Exh. 9), with the old time tickets (Resp. Exh. 8), reveals that the only material difference is that the new forms allow additional space for the individual mechanic to specify more exactly what work he has performed on a particular job, and possibly the new tickets would also enable manage- ment to trace more accurately which mechanic on a given job was responsible for faulty workmanship or unnecessary delays. However, the General Counsel further points out that the old time tickets provided all the necessary informa- tion, and his valued argument in this respect is as follows: "The Respondent's old time ticket forms recorded the amount of time spent by each man in the same manner as the new forms. And one, at a glance, as Gilomen so aptly demonstrated on the witness stand, may examine the old tickets and achieve a fairly reliable estimate as to just exact- ly who worked on a particular job and the approximate number of hours. This is only reinforced by Gilomen's testi- mony that he had to be familiar with the amount of time spent on individual jobs in order to resolve or settle custom- er accounts where cost to the customer was at issue. Fur- thermore, Gilomen acknowledged that one could always have questioned the mechanic working on a particularjob concerning his work, even under the old time ticket system. This belies Respondent's contention that the new tickets were needed to evaluate an employee's performance." Robert Collier was employed by the Company in early 1972, and worked under five service managers and on one occasion was even asked by Gilomen if he wanted to be the service manager. Collier specialized in pump services and repairs, and apparently had no worked returned to him until the Erickson pump job and up until the advent of the Union no one in management had been critical of his work. The Company also designed a special pump room at consider- able expense for Collier to work in, and in the spring of 1973 he was sent to a special school at Company expense for additional training. These factors and circumstances show that Gilomen and the various service managers had consid- erable confidence in his ability, and it seems highly unlikely to me that his work would suddenly deteriorate so rapidly as to warrant his termination. Collier's discharge during the 11 Gilomen admitted that when he left the meeting on September 7, he knew that Collier, Huffman, and Poyner were for the Union. late afternoon on September 24 also came as a surprise to him since earlier in the day Gilomen had talked to him about going to a tractor branch in St. Louis and working with them in their pump room. Collier readily admitted that the Erickson pump job "bugged" him, and that he even called the special school he had attended to make inquiries, but was never able to get a definite answer. While Collier may have spent too many hours working on the Erickson pump job, he was continual- ly instructed by Hilditch to do so, and it is also noted that following his discharge Collier went to work for Erickson Transport Co., the owner of the pump here in question.12 While the Company introduced exhibits concerning Collier's performance on three other pump jobs during the summer of 1973, as detailed earlier herein, they were all done during a time span which shortly followed Collier's return from a training school course sponsored by the man- ufacturer of the pump, and before this hearing these particu- lar jobs had never been mentioned. With respect to the Barber job, mentioned to Collier when he was discharged, it is clear from the record that this job did not involve more than a few hours' work by Collier and can have no real bearing on his discharge. Jim Poyner was hired by Gilomen in April, 1971, and worked continually thereafter for the Company. When he was discharged on September 24, Gilomen asked him if he remembered the job on the Holmes and Barber trucks, and told Poyner that on the latter job he had improperly in- stalled the rear end. Poyner immediately explained to Gilo- men that he was not responsible for the rear-end work on the Barber truck since the night crew had made this particu- lar installation and that he had only put in the front rear end.13 In his testimony D. L. Barber corroborated the fact that the night crew had installed the rear-rear end on his truck, and said that other mechanics in addition to Poyner had also worked on his truck. There is no question that the service department, and Poyner in particular as leadman, experienced considerable problems in attempts to repair the Barber truck and that a final adjustment of some $980 had to be made. However, during the interval spent on the Barber truck-from April 20 to about the first of June (6 weeks), and considerably before the advent of union activities-no one in manage- ment was in any way critical of Poyner's work. It is further noted that the Barber truck here in question was about 11 years old and probably had a million miles on it, and that on frequent occasions when the truck had to be returned to the shop, as aforestated, Barber often discussed the prob- lems with Service Manager Hilditch. Poyner spent only about 15 hours on the Holmes truck and considering the extensive repairs this amount of time can hardly be deemed excessive. Jack Huffman was hired in 1971 and usually was assigned major motor repair jobs. On one occasion Huffman was rehired by Gilomen. Gilomen testified that he talked to Huffman many times about his excessive hours and that he 12 On the day following the occasion when Gilomen had accused Collier of "sabotaging" the Erickson pump-Collier was advised by Service Manag- er Hilditch that he did not believe Collier's conduct had in any way been deliberate. 13 This truck has a "rear-rear end" and a "rear end." OZARK MACK TRUCKS, INC. had also mentioned the Busseel job to him. Huffman stated that at the meeting with the three discriminatees on Septem- ber 19, Gilomen specifically brought up the Holmes job, but he then explained to Gilomen why he had spent about 80 hours on this job. Huffman told Gilomen that he first had to line up the bearings with a very close tolerance, that he had to put on a heavier pump drive which required pulling the front off the engine, that he had to put on a "ESI kit" and to do this he had to build another engine stand, that he had to install new brake lines, and said that there were many other things he had to do in installing the new engine. He then explained to Gilomen that he also had to carpet and air condition the cab of the Holmes truck, and the air- conditioner had to be completely overhauled before it could be installed and since the air-conditioner was not designed for this particular type of truck, special cuttings and fittings had to be made. A careful review of this record in relation to Huffman's efforts to repair the Holmes truck, as high- lighted above, hardly substantiates any finding or conclu- sion that Huffman spent excessive time on the job, and during the actual repair period no one in management said anything critical to Huffman about his efforts or worktime There is no credited testimony in this record that Gilo- men ever complained to Huffman about any excessive time on the Busseel jobs. From time to time Busseel had a lot of work done, as detailed earlier herein, but most of the serv- ices provided by the shop in 1973 were extensive and major repair jobs covered by insurance and running into several thousands of dollars, and of course, there is always the possibility that Gilomen's losses on these jobs resulted from faulty bidding on the number of hours required to make the repairs, rather than on the time wasted by his mechanics. In the final analysis, it is quite obvious that Respondent was well aware of the work habits of the three discrimina- tees long before the discharges herein. Moreover, if Respondent's business was as financially precarious as indi- cated during the months preceding the discharges, it is high- ly unlikely Gilomen would have tolerated such a condition for so long a period of time. With the construction of a new building in 1973, the payment of premium wages, and num- erous other expenditures mentioned herein, this record strongly suggests that Respondent's financial condition was not as precarious as indicated, nor is it likely that the situa- tion in the service department suddenly became so intolera- ble that Respondent found it necessary to fire three of its most experienced employees and particularly when skilled mechanics are very hard to find, as specifically noted by Gilomen. One other facet of this case should also be noted. To fully accept the Respondent's defenses for the discharges, I would have to conclude that similar reasons for these sud- den terminations simultaneously existed for all three of these long-time employees, because, in essence, the Respon- dent is saying that they all goofed and at practically the same time. I would also have to conclude that the sudden and abrupt terminations of all three, without any warnings or criticisms prior to September 29, had nothing to do with their open support for the Union even though the Board election was just around the corner, and 5 days before the discharges Gilomen had let it be known in his meeting with the discriminatees that he was thinking of hiring "all new 761 guys." On the basis of this record and on the demeanor of the witnesses who appeared before me, I am not prepared to make such a conclusion, and accordin ly have found discriminatory discharges in all instances.' IV THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. A broad cease and desist order is warranted in view of Respondent's dis- criminatory conduct and other violations. It has been found that Respondent unlawfully discharged Robert Collier, Jack Huffman, and James Poyner on Sep- tember 24, 1973. It will therefore be recommended that Respondent offer them immediate and full reinstatement to their former positions, or if such positions no longer exists to a substantially equivalent position and without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by payment of a sum equal to that which they would normally have earned, absent the discrimination, from the date of the dis- crimination to the date of Respondent's offer of reinstate- ment, with backpay and interest computed in accordance with the Board's established standards.15 It will be further recommended that Respondent preserve and make avail- able to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary and useful to de- termine the amount of backpay and the right to reinstate- ment under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Robert Collier, Jack Huffman, and James Poyner on September 24, 1973, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices wtihin the meaning of Section 14 I attach little significance to any events that may have taken place in the service department subsequent to these three discharges It could be argued that Larry Holmes may well have experienced satisfactory results after a new mechanic worked on his truck because Huffman and Poyner did a good job to start with Furthermore, there is actually no established standards on which to make comparisons between different jobs because of so many unknown factors, and even thought initially they may have had some basic similarities 15 F W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co, 138 NLRB 716 (1962) 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, Ozark Mack Trucks, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating or polling its employees, and making inquiries as to their reasons for wanting the Union. (b) Threatening reduction in wages. (c) Threatening discharges because of union activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, including the above-named organization, to bargain collec- tively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Robert Collier, Jack Huffman, and James Poyner immediate and full reinstatement to their former jobs or, if such jobs no longer exists, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimi- nation against them 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 payroll records, social security payment records, timecards, person- nel 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 place of business in Springfield, Missouri, copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places, where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure 16 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 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 17 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act not specifi- cally found herein. IT IS FURTHER RECOMMENDED that the ballots of Collier, Huffman, and Poyner be opened and counted, and if the revised tally of ballots in Case 17-RC-7307 shows that the Union has received a majority of valid ballots cast, a Certifi- cation of Representation shall issue. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate or poll our employ- ees nor make inquiries as to their reasons for wanting the Union. WE WILL NOT threaten our employees with economic reprisals or reduction in their wages because of union activities. WE WILL NOT threaten our employees with discharges because of activities for the Union. WE WILL NOT discharge or otherwise discriminate in regard to the hire and tenure of employment or any term or condition of employment of our employees because of their membership in and activities on behalf of the Union herein or of any other labor organization of their choice. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join or assist labor organiza- tions, including the Union herein, to bargain collec- tively through a bargaining agent chosen by our employees, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activities. WE WILL OFFER to Robert Collier, Jack Huffman, and James Poyner their former jobs, or if such jobs no longer exists, tQ substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL pay them for any loss of pay they may have suffered by reason of our discrimination against them together with interest thereon. OZARK MACK TRUCKS, INC (Employer) Dated By (Representative) (Title) OZARK MACK TRUCKS, INC. 763 This is an official notice and must not be defaced by or covered by any other material . Any questions concerning anyone. this notice or compliance with its provisions may be direct- This notice must remain posted for 60 consecutive days ed to the Board's Office. 616-Two Gateway Center, Fourth from the date of posting and must not be altered , defaced, at State, Kansas City, Kansas 66101, Telephone 816-374- 4518.