Clarklift of St. Louis, Inc.

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clarklift of St. Louis, Inc. and Bernard B. Nowak. tion of the briefs filed by the General Counsel and Re- Case 14-CA-14317 spondent, I make the following: June 17, 1981 FINDINGS OF FACT DECISION AND ORDER I. JURISDICTION BY MEMBERS FANNING, JENKINS, AND Respondent, a Missouri corporation, is engaged in the ZIMMERMAN sale, distribution, and repair of material handling equip- ment at its St. Louis County, Missouri, facility. In the On March 31, 1981, Administrative Law Judge course and conduct of its business operations, Respond- Hubert E. Lott issued the attached Decision in this ent derived gross revenues in excess of $500,000 and pur- proceeding. Thereafter, the Charging Party filed chased and received goods and materials valued in excess exceptions. of $50,000 which were delivered to its place of business Pursuant to the provisions of Section 3(b) of the in Missouri directly from points located outside of the National Labor Relations Act, as amended, the Na- State of Missouri. Respondent admits, and I find, that it tional Labor Relations Board has delegated its au- is an employer engaged in commerce within the meaning thority in this proceeding to a three-member panel. of Section 2(2), (6), and (7) of the Act. The Board has considered the record and the at- 1. THE LABOR ORGANIZATION INVOLVED tached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- Respondent admits, and I find, that International Asso- sions of the Administrative Law Judge and to ciation of Machinists and Aerospace Workers, District adopt his recommended Order.' No. 9 and its Local No. 777, herein called IAM and Local 777, respectively, are and have been at all times ORDER material herein labor organizations within the meaning of Section 2(5) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- IIIll. THE ALLEGED UNFAIR LABOR PRACTICES lations Board adopts as its Order the recommended Order of the Administrative Law Judge and A. Background hereby orders that the complaint be, and it hereby Respondent is engaged in the sale and servicing of is, dismissed in its entirety. forklift vehicles as a franchise distributor for Clark Equipment Company. Respondent's present owners pur- In the absence of exceptions to the Administrative Law Judge's of chased the Company in April 1979, renaming the Com- finding that Toombs' interrogation of Nowak, concerning the latter's pany Clarklift of St. Louis Inc., from AAA Equipment. contact with the Union regarding supervisors performing unit work, was de minimis and thus did not warrant issuance of a remedial order, we Those employees of Respondent who perform service adopt, proformna his dismissal of the allegation that such conduct violated and repair work on vehicles are represented by Lodge Sec. 8(a(1) of the Act. 777, IAM. At the time of the purchase of the Company by its present owners Respondent assumed collective- DECISION bargaining agreements for its mechanics with the IAM and for its parts department employees with Teamsters STATEMENT OF THE CASE Local No. 618. During the negotiation of the Company's HUBERT E. LOTT, Administrative Law Judge: This acquisition, Teamsters Local No. 618 gained the right to case came to hearing before me in St. Louis, Missouri, represent the office workers. In October 1979, Respond- on December 9, 1980,' upon an unfair labor practice ent executed a collective-bargaining agreement with charge filed on October 8, by Bernard B. Nowak, an in- Teamsters Local No. 618 covering the office employees. charge filed br y B d B. , an Currently both of the Teamsters bargaining units have dividual, against Clarklift of St. Louis, Inc., herein called Respondent, and on a complaint issued by the General Counsel on October 29. The issues in the case are wheth- B. The Interrogation and Discharge of Bernard er Respondent, on or about August 15, interrogated the Nowak Charging Party concerning his union or concerted activi- ties, and whether Respondent discharged Charging Party The General Counsel contends that Bernard Nowak Bernard B. Nowak because of his union activities in vio- was interrogated and subsequently discharged on August lation of Section 8(a)(1) and (3) of the National Labor 15, because he vigorously pursued his duties as shop ste- Relations Act, as amended. ward for the IAM, who represented the mechanics unit. Relati2ons 2' Act, as ame . Respondent corrected or amended its answer to the com- Upon the entire record, including my observation of plaint to reflect that it suspended Nowak on August 15 the demeanor of the witnesses, and after due considera- and discharged him on August 18 because he instructed employees to misrepresent their time on customer work 'All dates are in 1980 unless otherwise stated. orders, threatened a supervisor with union trouble or ' Errors in the transcript have been noted and corrected. problems if he did not receive foremen's wages, and lied 259 NLRB No. 2 CLARKLIFT OF ST. LOUIS, INC. 13 to Respondent's vice president and general manager asked him to come to his office. John Browning, Sam when questioned about these incidents. Modica, and Larry Toombs were present, however, Bernard Nowak was at the time of his discharge an 8- Larry Toombs did all of the talking. According to year employee, and since January 1979 had been the Nowak, Toombs asked him a series of questions: Had he IAM shop steward for the mechanics. Nowak returned ever called OSHA? Did he ever tell any employee to to work from sick leave on June 23. On June 26, Samuel hold back time? Did he ever call the hall on any of the Modica, Respondent's service manager since April, as- Company's salaried men and tell them not to move any signed Nowak and another employee the task of install- equipment or drive forklifts around? Had he ever tele- ing an upright on a forklift. Nowak became upset and re- phoned one of the supervisors and threatened that if he fused to perform the work claiming that the Company's did not get a raise, he would cause trouble in the shop? 2-ton overhead chain hoist was not strong enough to lift Had he ever asked another mechanic to misrepresent the 5-ton upright and side shifter. Nowak threatened to hours? To all of these questions, Nowak answered no. call OSHA if the Company persisted in its attempt to use After the questioning, Nowak was suspended and re- the overhead chain hoist. After consulting with John ceived a mailgram on August 19 which stated that he Browning, Respondent's service supervisor over mechan- had been discharged as of August 18. ics, Modica abandoned this effort in favor of calling in a Bernard Nowak testified that after his discharge he wrecker which did the job. No grievance was filed over filed a grievance. He further testified that he had never this incident. been warned or reprimanded before by Respondent and Sometime in late June or July3 Nowak made an in- that under the contract the first offense called for a quiry to Modica concerning the restoration of employee warning letter, second offense a suspension, and the third Leonard Richmond to journeymen rate. About a year offense within a year, automatic discharge.' Rufus Haney earlier Richmond had experienced knee problems. The and Darron Forrest, mechanics, testified that they were condition of Richmond's bad knee had left him unable to familiar with the terms "holding back time" or transfer- use a ladder to paint forklifts. Officials of the Company ring time." Thus, when a work order comes to the shop and the Union had then met and determined to freeze his from the sales department, it has, under the "shop pay rate for I year (at mechanic trainee 3-year level) to instructions section," the estimated time that it should give Richmond time to rehabilitate his knee. A letter of take to complete the job. If the job requires more actual agreement to this effect was signed by the Company and worktime than is estimated by the sales department, then, the Union on May 16, 1979. Sometime after the I-year on some occasions, the shop foreman will instruct the period had expired, Leonard Richmond reminded mechanic to transfer the excess time to another work Modica that the agreement period was up and that he order where the job was performed in less time than was should be returned or restored to journeymen's wages. estimated by the sales department which would even-out Modica said he would check into it. Modica then called productive time. Haney and Forrest testified that on oc- Roger Poole the Union's business agent, however, in the casion Shop Foreman John Browning has instructed meantime Nowak came to Modica and inquired about them to transfer time to other work orders what the Company was doing about Richmond. Modica told Nowak that he had a call in for Roger Poole and C. Respondent's Defense that when Poole returned Modica's call, they would work out some kind of arrangement and let Nowak Larry Toombs, Respondent's vice president and gener- know about it. Shortly thereafter Poole and Modica dis- al manager, testified that on August 11 he was called cussed the situation and the Company paid Richmond into Robert Whittingham's office. President Whittingham retroactive wages and restored him to the journeymen had three work orders on his desk, 35831, 35833, and rate. No grievance was filed over this matter. 35835 (Resp. Exhs. 1, 2, and 3). Whittingham told On August 13, Nowak, who was not at work due to Toombs that there was something wrong because he re- an injury, received a telephone call from employee membered asking mechanic Michael Troutman to per- Darron Forrest, who said that he had been fired. Nowak form work (cut down load back rests) on three forklift went to Respondent's facility and spoke with Modica trucks and asked him if he could complete the work in 1 and Vice President and General Manager Larry Toombs. day. After Troutman had completed the work in I day Nowak had previously spoken with Modica about this he remembered congratulating him for doing a good job and asked him not to do anything until the regular busi- in the required time. After reviewing the three work ness agent returned from vacation. But, Respondent was orders involved on Troutman's job, he discovered that adamant that Forrest leave the premises and take his the number of hours indicated on the work orders tools with him. Nowak told Forrest not to remove his showed that Troutman did not complete the work in I tools until the matter was straightened out with Re- day but rather in 3 days, taking a total of 20 hours in- spondent. Nowak then assisted Forrest in preparing a stead of 8 hours. Whittingham asked Toombs to investi- grievance and submitted it to Respondent. On Friday, gate this discrepancy. Toombs in turn asked Service August 15, Nowak reported to work from sick leave. He Manager Samuel Modica to investigate the discrepancies worked for approximately 10 minutes when Sam Modica on these three work orders. Modica in his investigation I The dates for this incident as well as the preceding incident were ' Although the collective-bargaining agreement covering Nowak was taken from Respondent's witnesses' testimony since Nowak was unsure of not introduced into evidence, it should be noted that after Nowak's the dates involved and could only fix the time by responding to leading grievance was denied by Respondent, the union membership chose not to questions. pursue it further. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questioned Shop Forman John Browning and mechanic During this same time period but prior to Nowak's dis- Michael Troutman. Troutman told Modica that he had charge Toombs also learned from Modica that during been instructed to transfer hours from a customer work July Nowak had threatened Modica with a picket line order by Nowak. Modica reported what he had discov- and a call to OSHA if he was not allowed to take his ered back to Toombs who decided to meet with Trout- invalid wife to the hairdresser every Thursday on com- man on August 12 to get a more complete explanation of pany time. At first Modica refused his request, but later what actually happened. At the meeting on August 12 on during that day he agreed to let Nowak take his wife with Toombs, Troutman explained that Whittingham on to the hairdresser every Thursday in the morning.' July 30 or 31 asked him if he could modify three forklift Toombs also learned during the same period of time that trucks in I day because they were promised to a custom- Gary Hull, the used equipment manager, had received er on a certain day. Troutman said that he thought he several telephone calls at home from Nowak. Hull testi- could do the job in I day. Thereafter, Troutman com- fled that these telephone calls were received at night pleted the work on the three work orders 35831, 35833, from Nowak and one particular call that he remembered and 35835 in I day, using the total of 8 hours. After occurred in January shortly after Dennis Metz was made Troutman completed the work on the three work orders working foreman. Nowak told Hull that he was entitled he turned them over to Nowak who told him that from to leadman's pay in the equipment get ready department. now on they were going to use the full time on the tick- Hull told Nowak that there was not enough volume to ets (i.e., not the actual time worked but the estimated justify paying Nowak leadman's pay and that since time for the job, which in this case was 8 hours per work Nowak was a shop steward there might be a conflict of order or 24 hours estimated time). Troutman went on to interest. After Hull denied Nowak foreman's pay, Hull explain to Toombs that he added 12 hours to the three stated that Nowak became obnoxious and said that he internal work orders, taking the time from a customer had worked well with Hull in the past with the Union, work order, on Nowak's instructions because he did not but he would use the Union against him in the shop. Hull want to have any trouble with the Union.5 Troutman want to have any trouble with the Union. Troutman further stated that although he told John Browning further told Toombs that after Respondent stopped in- bout the phone calhortly after it occurred Browning about the phone call shortly after it occurred Browning serting estimated time on the work orders which was serting estimated time on the work orders which was told him to "sit on it" and he did not repeat the conver- somewhere around July 31, Nowak told Troutman that sation to anyone else because he felt that Nowak was in- they should run the tickets over and see what the Com- pany said about that. He also told Troutman that they for him. Hated at the tme he related the conversation to should always use maximum time.' After hearing Trout- man's story about what had transpired with the work Toombs sometime after Nowak was suspended but orders, Larry Toombs decided to check further with his before he was discharged. Toombs testified that, after re- management to find out whether or not other situations ceiving all of this information concerning Nowak during existed that he was unaware of. He talked to Sam the week of August 11, he decided to schedule a meeting Modica who related to him that on or about July 9 with him at the earliest possible time. Nowak was absent Elmer Justus came to him and complained that Nowak from work on August 13 and 14 with an injured hand, had told him to use up the entire estimated time on the however, he reported to work on Friday, August 15. job. Modica told Justus to use only the time it took to do Within 5 or 10 minutes after the shift began that morn- the job and that is what he did. Toombs asked Modica ing, Toombs requested that Nowak report to Modica's why he had not brought this situation to his attention office. In Modica's presence Toombs asked Nowak a sooner and Modica replied that Justus had told him that series of questions: (1) He asked Nowak whether he had he would deny the conversation with Nowak if it ever ever asked a mechanic at any time to report on a work came up again and that he would not put it in writing.7 order more hours than had actually been worked. Nowak denied that he had ever done that. (2) He asked ' Transferring hours from customer work orders to internal work him if he had ever askcd any mechanic at any time, or if orders does not affect an employee's wage. However, only customer he had ever told any mechanic at any time that it took 8 service hours generate revenues. When an employee actually spends his hours to cut down a load back rest, when it actually time on customer service work but records his hours as internal time the could have taken less. Nowak said he had never done Company loses customer service revenues. Hours allocated as internal time cost the Company money by increasing overhead expenses. During that. (3) He asked Nowak if he had ever told a mechanic this period of time, internal work orders which were used to prepare new at any time that it took 8 hours to cut down the drivers trucks for delivery were cost-priced at a rate of S19 an hour, while the overhead guard, when it actually could have taken less. rate charged on customer service orders was $32 an hour. The effect of transferring 12 hours on a customer service order to an internal make- Nowak said he had never done that. (4) He asked ready order would be to reduce the charges to the customer by $612 while increasing the cost of preparing truck for delivery by $228. hours on work orders were John Browning and Sam Modica. Nowak, a Nowak denied all of these conversations with Troutman having to do according to Justus, was upset and made these statements to him because with transferring time and using maximum time. However, Troutman tes- the Company had removed the allotted times from the work orders. tified to these conversations and Toombs, Modica, and Browning testified Nowak denies these conversations with Elmer Justus. that Troutman related these conversations to them. ' Nowak agreed that a conversation between him and Modica took I Elmer Justus testified that some time after the Company removed es- place sometime after Modica assumed the duties of service manager. He timated times from the work orders, Nowak handed him a work order further agreed that the conversation dealt with taking his wife to the and said, "there were 8 hours to do the job." He further testified that hairdresser and that although Modica at first refused to allow him to do during the same time period Nowak told him that if the Company thinks it, he later agreed to let Nowak take off during the day to perform the it took a lot of time to do the jobs now, just wait until later. Justus fur- service. However, Nowak denied ever threatening Modica with a picket ther testified that the only people who were authorized to distribute line or a call to OSHA. Modica's testimony supports Toombs' version. CLARKLIFT OF ST. LOUIS, INC. 15 Nowak if he had ever told the mechanics to take home the allocation of hours and that Nowak has no role in their impact wrenches. Nowak replied that it was the this procedure. He stated that the allocation of hours Company's responsibility to furnish the impact wrenches. generally involves the transfer of cost overruns from the (5) He asked Nowak if he had ever called a supervisor at customers service labor ticket to an internal labor ticket. his home and threatened that if he did not get leadman's He stated that Respondent does not charge its customers pay he would cause trouble in the shop. Nowak denied for cost overruns. The customer only pays the price that ever doing this. (6) He asked Nowak if he had ever the salesman has calculated by estimating the amount of called the Union with regard to the salaried supervisors time required for the new truck get ready department to moving machines around in the shop. Nowak stated that prepare the vehicle for customers use. he had done this. Finally, Toombs asked Nowak whether or not he had ever threatened the Company with calling D. Analysis and Conclusions OSHA. Nowak said that he had never done that. Nowak stated, however, that he had threatened to call OSHA Where there s a cnflict in tes I hav e r edited Re- because he was mad at Sam Modica because Modica and Respondent's witnesses , I have credited Re- would not allow him to take his wife to the hairdresser. spondent's witnesses because for the most part their testi- would not allow him to take his wife to the hairdresser. After completing the interview with Nowak, Toombs mony was corroborated, less evasive, and more on point. made the decision to suspend him. Toombs further ti Larry Toombs, who played a major role in the interro- fled that after suspending Nowak he discussed the situa- gation and discharge of Nowak, was a very credible wit- tion with the mechanics, management personnel, and ness. Therefore, I find that Bernard Nowak participated in the activities and made the statements attributed to Whittingham. He stated that some of the things that he m by Respondent's witnesses. Furthermore, I find th heard such as the hairdresser incident were totally unbe- lievable to him and he questioned the rationality of tion of Toombs during the week of August 11. I also Iievable to him and he questioned the rationality of most, if not all, of Nowak's activities came to the atten- Nowak. He stated that after learning the things that he tion of Toombs during the week of August 11. d also had, he could not understand what Nowak was trying to find that Toombs suspended and later discharged Nowak do to Respondent. After another discussion with Whit- not because of his protected shop steward activities but tingham on August 18, it was agreed between the two of because of his unprotected activities. International Wire them that they would discharge Nowak for directing me- Products Company, a Division of the Carlisle Corporation, chanics to misrepresent hours, for calling the supervisor 248 NLRB 1121, 1123 (1980). at home and threatening him, and for denying or being The gravamen of this case is that Nowak in my opin- dishonest with him on these points. Toombs indicated ion abused his position as union shop steward. He was, that the other things raised in the interview did not enter therefore, disciplined more harshly than Troutman be- into his decision to discharge Nowak; i.e., calling OSHA, cause as a shop steward he is held to a higher standard the impact wrenches, or calling the union hall about su- of conduct than the average employee. Midwest Precision pervisors doing unit work. Toombs categorically denied Castings Company, 244 NLRB 597 (1979). Therefore, the that Nowak's activities as a shop steward had anything terms of the contract dealing with discipline do not nec- to do with his discharge. essarily apply in this case. The General Counsel offered, Toombs testified that since September 1979 Respond- through Nowak's testimony, some evidence that the con- ent had discharged four mechanics, one of whom was tract calls for progressive forms of discipline beginning Harry Poole. Poole was discharged for misrepresenting with a written warning for a first offense and ending time turned in for payment. He turned in hours for work with discharge for a third offense in the same given year. that he claimed he did while on the road repair'ing cus However, since the contract was not offered into evi- tomers equipment when, in fact, the work was never per- dence I am not bound by Nowak's testimony and I reject formed for a customer. Customers complained and their it. complaints were brought to the attention of Toombs I find that one of the reasons for Nowak's discharge who confronted Poole over the telephone and dis- was his conduct which, in effect, can only be described charged him on the spot. According to Toombs, two as advocating a slow down among unit employees. This grievances were filed by employees in the parts depart- in my opinion was reason enough for Respondent to dis- ment unit since September 1979 with the assistance of charge Nowak notwithstanding his legitimate activities the Teamsters shop steward. Toombs further stated that as a shop steward. In this regard, Respondent met its Michael Troutman was given a disciplinary letter (Resp. burden of proof in establishing that Nowak would have Exh. 6) dated August 14 for misrepresenting hours. The been discharged had he not engaged in any protected ac- letter reads: tivities. Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). This letter is to serve as a warning to Michael An element also lacking in the General Counsel's case Troutman for misrepresenting hours on three work is union animus on the part of Respondent. The record orders 35831, 35833, 35835 on 7/31/80. Mike fol- indicates that Respondent has a good labor relations his- lowed the instructions of the shop steward, Bernard tory with no record of unfair labor practices. It recog- Nowak, who had no authority to delegate hours. nizes two unions and maintains three collective-bargain- ing agreements covering three separate units of employ- Shop Foreman John Browning testified that only he ees. Moreover, many of the supervisors who testified and Sam Modica have the authority to allocate hours. had, themselves, been members of a union for many He testified that only about 10 percent of all jobs require years prior to promotion into management. It is also 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD noteworthy that the Union never presented any wit- by preponderance of the credible evidence in this record nesses or participated in this hearing in an effort to dem- that Respondent has violated Section 8(a)(1) and (3) of onstrate Respondent's antiunion stance. Coupled with the Act by discharging Bernard Nowak. these factors is Nowak's testimony. He concluded his re- The two allegations of interrogation have to do with buttal testimony by stating that everybody at the Compa- Toombs questioning Nowak about threatening to call ny always treated him as a human being and that he OSHA and calling the Union with regard to salaried su- never had any problems with the supervisors who pervisors moving machines around in the shop. The first always treated him fairly. 9 After this testimony, I became allegation has to do with an unprotected activity; somewhat perplexed as to why we were holding this namely, threatening to call OSHA when Modica would hearing. So I asked Nowak the following questions and not allow Nowak to take his wife to the hairdresser. I he responded accordingly: therefore dismiss this allegation. The second allegation, JUDGE LOTT: Let me ask you a question. Why do which was admitted, is without doubt a violation of Sec- you think the company fired you? tion 8(a)(1). However, under the circumstances of this THE WITNESS: Well, on the testimony- case, not the least of which is Respondent's labor rela- JUDGE LOTT (interrupting): No, no, just- tions history, I find the interrogation to be de minimus, THE WITNESS (interrupting): Well, I think that and accordingly dismiss this allegation as well. they claim that I told certain parties to hold back time. CONCLUSIONS OF LAW JUDGE LOTT: Is that why you think they fired 1. Respondent is an employer engaged in commerce you? within the meaning of Section 2(6) and (7) of the Act. THE WITNESS: That is the only reason that I think it was. 2. The Union is a labor organization within the mean- JUDGE LOTT: Do you think it had anything to do ing of Section 2(5) of the Act. with your being the shop steward? 3. Respondent has not engaged in any violations of THE WITNESS: No, I don't believe they would Section 8(a)(l) and (3) of the Act. hold that against me. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case and pursuant to While, I did not accord Nowak's answers controlling Section 10(c) of the Act, I hereby issue the following weight in this decision, they at least helped put this case recommended: in its proper perspective with respect to motive. Accord- ingly, I find that the General Counsel has not established ORDER It is hereby ordered that the complaint be, and it * These supervisors included Whittingham, Toombs, Modica, and hereby is dismissed in its entirety. Browning. who were mentioned by name.