M-B Co., Inc. Of Wisconsin

68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD M-B Company, Inc. of Wisconsin and Dennis L. Strouf. Case 30-CA-9447 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On February 9, 1988, Administrative Law Judge George F. Mclnerny issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. The General Counsel also excepts to the judge's failure to mention in his decision the conversations that Richard Strouf, the Union's shop chairman and father of alleged discriminatee Dennis Strouf, testified he had with Brunner and Gebhart Even assuming , arguendo, that based on those discussions or any other evidence , the General Counsel has made a prima facie showing that Dennis Stroufs layoff violated the Act, we agree with the judge that the Respondent has demonstrated that Dennis Strouf would have been laid off for lawful reasons even in the absence of this father's protected union activity. In adopting the judge's conclusion that Dennis Strouf was not laid off due to his father's union activity, we find it unnecessary to rely on the judge's generalized comment that Dennis Strouf "was not a good or dili- gent employee," and rely instead on leadman Bruckner 's credited testimo- ny concerning specific problems with Dennis Strouf's performance and on the fact that a decrease in the Respondent 's workload required the elimination of one employee's job We correct the following inadvertent errors in the judge's decision In sec III,B, he stated that Dennis Strouf was laid off on November 7, rather than November 6, 1986; in sec III,C, he referred to Jerome Brocker as "Bruckner", in sec III,D. he referred to Mittag as a proba- tionary employee in October " 1976" rather than 1986, and stated that Cosgrove, in his speech to employees, referred to an Air Force contract rather than a contract for truck stripers, and in sec . 111,E, he referred to drill press leadman Weber as "Meyer." 2 In agreeing with the judge's determination that the failure of the Re- spondent to call Gebhart and Weber as witnesses does not give rise to an adverse inference, we note that the Respondent presented other wit- nesses, such as Bruckner and Brunner, who testified from personal knowledge as to Dennis Stroufs performance and the circumstances of his layoff, the matters about which Gebhart and Weber apparently also had knowledge Even assuming, arguendo, that Weber would have testi- fied that Dennis Strouf performed satisfactorily during his 1-1/2 week as- signment in the drill press room , we agree with the judge's conclusion that Dennis Strouf was not laid off because of his father 's union activity Moreover, no adverse inference should be drawn from Gebhart's failure to testify about his discussion with Mittag concerning Mittags status in the event of a strike, since Gebhart 's statements were not alleged to be unlawful in the complaint or at the hearing . Further, at the time of the hearing, neither Gebhart nor Weber was alleged to be a supervisor, and the complaint was not amended then to include such allegations ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and the complaint is dismissed in its entirety. In adopting the Judges refusal to find that the Respondent 's president. Cosgrove, violated Sec . 8(a)(l) of the Act through his reference to trans- ferring a particular contract to another location if the employees went on strike, we note that the record indicates that , in the context in which it was made, the statement would not reasonably have been understood as a threat of reprisal but rather as a claim that the Respondent would have been able to continue operations during a strike. Rocky Coe, Esq., for the General Counsel. Douglas A. Cairns, Esq.' and John C. Patzke Esq. (Brig- den & Petajan, S.C.), of Milwaukee, Wisconsin, and Ronald P. Dales; Esq., of Sheboygan , Wisconsin, for the Respondent. DECISION STATEMENT OF THE CASE GEORGE F. MCINERNY, Administrative Law Judge. Based on a charge filed on January 12, 1987, by Dennis L. Strouf, an individual (the Charging Party), the Re- gional Director for Region 30 of the National Labor Re- lations Board (the Board) issued a complaint on Febru- ary 20, 1987, alleging that M-B Company , Inc. of Wis- consin (the Company or Respondent) violated the Na- tional Labor Relations Act (the Act) in discharging Dennis L. Strouf on or about November 7, 1986, and subsequently failing and refusing to reinstate him. The Respondent filed a timely answer in which it denied the commission of any unfair labor practices. Pursuant to a notice contained in the complaint, a hearing was held before me at Manitowoc, Wisconsin, on June 24-25, 1987, at which all parties had the oppor- tunity to present testimony and documentary evidence, to examine and cross-examine witnesses, to make and argue motions, and to argue orally. After the conclusion of the hearing the Respondent and the General Counsel filed briefs, which have been carefully considered.2 Based on the entire record, including my observations of the witnesses, and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The Respondent, M-B Company, Inc. of Wisconsin, is a Wisconsin corporation with plants located in Chilton ' Mr. Cairns died on December 11, 1987, having completed the trial, the brief, and further motions in this matter. 2 On December 7, 1987, counsel for the Respondent filed a response to motion to amend the complaint contained in the General Counsel's brief, together with motions to strike portions of the General Counsel's brief and to correct the transcript . The General Counsel filed an opposition to this document , objecting to Respondent 's motion to strike portions of the General Counsel 's brief and to Respondent 's opposition to the General Counsel's motion to amend. Because there was no opposition to Respond- ent's motion to correct the transcript that motion is allowed For reasons which will appear below, I deny the General Counsel 's motion to amend the complaint , and Respondent's motion to strike portions of the General Counsel's brief. 290 NLRB No. 11 M-B CO and New Holstein , Wisconsin , where it is engaged in the manufacture, refinishing , and repair of sweepers and road-marking machinery. 3 During the calendar year ending December 31, 1986, the Respondent sold and shipped from its Wisconsin facilities goods and products valued at over $50,000 directly to points outside the State of Wisconsin The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that District 150, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES A Background The Company's facility involved in this case is the plant at New Holstein, Wisconsin, where it manufac- tures, repairs, and rebuilds commercial sweepers The sweepers are either self-propelled or are towed by other vehicles, and are used to clean roads, sidewalks, or air- port runways. At New Holstein there are approximately 30 hourly rated employees represented by District 150 of the International Association of Machinists and Aero- space Workers, AFL-CIO, in a unit that also includes another 50 employees at the Chilton facility, about 6 miles from New Holstein. The Union has represented these employees since the 1940s. So far as can be determined from the record in this case, relations had been ongoing and cordial during this period. In the fall of 1986, union and company repre- sentatives met to negotiate a new collective-bargaining agreement to succeed a contract expiring at the end of October. The Company was represented by Attorneys Ronald P. Dales and Thomas E. Brunner, vice president and general manager„ respectively, of the sweeper divi- sion at New Holstein. The Union was represented by Business Representative Jerome Brocker, accompanied by an employee committee including Shop Chairman Richard Strouf, a master assembler at New Holstein, and the father of the Charging Party, and Michael J. Gudex, a committeeman, who is a leadman at the Chilton plant and also the maternal uncle of Dennis Strouf In September 1985, the Company had bid on and been awarded a contract to rebuild and recondition airport sweepers for the United States Air Force. After some preliminary work to establish the Company's reliability and its ability to perform the work required under this contract, the Air Force delivered some 30 sweepers to the Company at New Holstein by late August 1986 These were stored in the Company's yard to be disas- sembled and cleaned so they could be brought into the plant to be rebuilt before the winter. s The Company also operates a shoe manufacturing facility at Sheboy- gan, Wisconsin , which is not involved in this case 69 B. The Hiring and Layoff of Dennis Strout' Dennis Strouf graduated from high school in the spring of 1986.5 At about that time he mentioned to his father, Richard , that he would like to go to work for the M-B Company Dennis went to the Company and took a series of tests administered to applicants for permanent jobs. He did not do very well on the tests in early August and had an interview with General Manager Brunner. The latter told him that based on his test scores and lack of experience he would not be considered for permanent employment After this, the Company received the 30 Air Force sweepers and had to consider how they were going to get them cleaned up before the snow came to New Hol- stein About the same time, Richard Strouf approached Brunner and appealed to him to give Dennis a job. In view of the need to get the sweeper job done, Brunner agreed to hire Dennis on a temporary basis.6 Dennis Strouf reported for work on September 6. He was joined by another temporary employee, David Kirsch, and by several employees from the Chilton plant. Dennis worked for about 2 months at cleaning parts on sweepers, operating a forklift under leadmen Stanley Bruckner, and, for a time, operating a drill press in the machine shop under the direction of Jim Weber. On Thursday, November 7, Dennis had a conversation with Brunner who informed him that he was being laid off be- cause of a lack of work. The layoff was effective imme- diately, and Dennis left the plant. C. The Contract Negotiations As had been noted, the testimony in this case indicates that the Company and the Union had an ongoing rela- tionship going back to the 1940s. The contract between the parties effective during early 1986 was due to expire on October 31. About 3 weeks before this expiration date the parties commenced negotiations for a new agree- ment As indicated, the company committee consisted of Attorneys Dales and Brunner, and for the Union, Jerome Bruckner, Gudex, and Richard Strouf. Bruckner acted as chief spokesman on the union side, but the other two committee people also joined in the discussions. There were extended discussions on economics, including a wage package, and on the Company's profit-sharing plan. There were differences in the testimony of Brunner and, Richard Strouf about the emotional level of these discus- sions. Brunner recalled the parties as being "emotional" or "animated," but could not recall what Strouf and Gudex described as shouting and table-pounding. I cannot say that the characterizations by any of these wit- nesses rose to the vituperative or frenzied level of many such situations I have heard about and some in which I have actively participated. The union representatives were disappointed, even angry, at•what they described as There are no substantial issues of fact on the chronology of Dennis Stroufs relations with the Company This statement of facts is taken from the testimony of Dennis and Richard Strouf and Thomas Brunner s All subsequent dates are in 1986 unless otherwise noted. s Art 11, sec 4 and art IV, sec 4 of the parties November I. 1986 contract provides for the hiring, lay off, transfer, or discharge of tempo- rary employees 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD no progress on economic issues . Richard Strouf, particu- larly, was concerned with possible duplicity in the Com- pany's reservation, or accrual, of moneys from the profit- sharing plan to cover anticipated expenses. But there were no threats, no wild scenes, and no walkouts con- nected with any of these meetings. After several meetings, a mediator was called in and, eventually, a last offer was made by the Company. The proposal was taken back by the union bargaining com- mittee to the membership and was there rejected. How- ever, because of an unusual union rule7 a strike vote failed, and, in that circumstance, the contract "won by default,"9 and was executed by the parties. D. Cosgrove's Speech and Alleged Threats to Employees Terrence J. Cosgrove is the president and sole owner of the Company. On the day after the contract was ac- cepted by the Union (despite its being unsatisfactory) Cosgrove testified that he heard talk from company em- ployees that "the Company won again." Cosgrove became angry at this talk because, in his words, he had been trying for 3 years to get people "focused to the marketplace and literally knocking the hell out of our competitors." In order perhaps to refocus the people who were saying that the Company had won in the ne- gotiations he summoned all the employees to a meeting at the Chilton plant. There does not seem to be any substantive disagree- ment on what Cosgrove said. He was angry, as he admit- ted, and he was talking to the employees against the advice of Dales, his attorney. He used no text nor had he made notes on what he was going to say . Cosgrove him- self had no real idea what he said,9 but he did not dis- agree with testimony on the talk by Brunner or Micheal Gudex. Richard Strouf substantially agreed with this tes- timony, adding his recollection that Cosgrove said some- thing about moving operations if the employees had gone out on strike. Cosgrove recalled that he said that if they had had a strike he would have taken the Air Force con- tract and moved it somewhere else.' O In another matter, Steven Mittag, who was a proba- tionary employee in October 1976, testified that at the end of October he was asked by Wally Gebhardt, man- ager of production inventory control , if he would cross the picket line if there was a strike vote. Mittag asked what would happen if he did not and according to Mittag, Gebhardt replied that because he was not pro- tected by the Union, if he refused to cross the picket line for 3 working days, he would be terminated by the Com- pany. Gebhardt did not testify but Tom Brunner, who was present at the conversation between Gebhardt and Mittag, testified that Mittag had asked about crossing a r Either under its constitution or bylaws , the record is not clear 6 These were Brunner's words The use of the word "won" became significant later. 9 Cosgrove was angry, but there is no indication that his talk was ram- bling or incoherent Despite his anger and the absence of text or notes, he obviously had thought about what he was going to say 10 In his brief, counsel for the General Counsel moved to amend the complaint to allege this remark as a violation of Sec. 8(a)(I). For the rea- sons given below, I deny the motion to amend the complaint picket line and Gebhardt told him that if he did not cross the line, his absences could be considered to be unex- cused absences. There was no evidence that unexcused absences by probationary employees constituted a cause for discipline or discharge. E. Summary and Conclusions 1. The discharge of Dennis Strouf Based on the entire record in this case, I conclude that the General Counsel has failed to establish that the Com- pany objected to or resented the Union, or that Brunner or any other company official resented the conduct of Richard Strouf during the 1986 negotiations. This Company, according to Richard Strouf's own tes- timony, had had continuous relations with the Union since the 1940s. Michael Gudex and Jerome Brocker stated that the Union had filed no grievances during at least the 3 years before this hearing. Taking Richard Strouf's and Michael Gudex's testimony at its face value, it does not appear that Richard's conduct at the bargain- ing table, or the Company's response, gave rise to any indication that the Company resented that conduct. Indeed, it would be strange if a series of meetings on a collective-bargaining agreement did not produce some shouting, tablepounding , or other manifestations of impa- tience. Rarely do such displays leave any lasting effects. The evidence in this case does not point to a different conclusion. The question of Richard Strouf's urging rejection by the membership of the proposed agreement is not, in my opinion, significant. Nor was this action by Richard con- nected by the General Counsel to Cosgrove's speech to the employees. There is no indication here, as alleged by the General Counsel, of falsification of Dennis Strouf's employment records by leadman Stanley Bruckner. Bruckner im- pressed me as a cautious but candid witness . I credit his evaluations of Dennis Strouf as an employee and I be- lieve that his judgment in determining whether to retain Dennis or David Kirsch was an honest judgment based on his view of the best interests of the Company. I do not agree with the General Counsel that I should take the absence of the drill press leadman, Meyer, and production inventory control manager, Gebhardt, as es- tablishing the General Counsel's position on Dennis Strouf's discharge, or the Company's motivations in ef- fecting Dennis' layoff. There is no indication that either Meyer or Gebhardt would not have responded to the General Counsel's subpoenas or testified as he now as- serts they would have. From these findings it is clear that the General Coun- sel has not established a prima facie case that Dennis Strouf was laid off (or discharged) because of the Com- pany's animus toward the Union or toward his father. Further, it is also clear that Dennis was not a good or a diligent employee and that his selection of layoff was based on a proper comparison between himself and M-B CO David Kirsch.'' See, e.g., Wright Line, 251 NLRB 1083 (1980). 2. The Mittag situation I think Mittag was an honest witness, but bearing in mind that he had worked only a few days before the stnke threat arose, I feel that he was apprehensive and perhaps not exactly sure what was being said to him when he asked about crossing a picket line. I credit Brunner's version of what Gebhardt said to Mittag. In that statement I find no threat, but merely a recitation of a company policy which was not further explained in the record. 3. Cosgrove's speech I cannot read into Crosgrove's speech either a threat to close the plant, or any other coercive statement What he said, and there is no serious disagreement on that, was that he might have moved some work if there had been a strike. I find no threat or violation of law in that speech, and I find no connection between the speech and layoff 11 I do not credit Dennis' denials of derelictions alleged by leadman Stanley Bruckner I found Bruckner to be a forthright and credible wit- ness, and I found Dennis to be indifferent as well as forgetful This de- meanor indicated to me that he expected to be believed no matter what he said 71 of Dennis Strouf. The General Counsel's motion to amend the complaint to allege this speech as containing a violation of Section 8(a)(1) is denied. CONCLUSIONS OF LAW 1 The Company, M-B Company, Inc of Wisconsin, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, District 150, International Association of Machinists and Aerospace Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has not committed any unfair labor practices under the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The complaint is dismissed. 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses