Clarklift of St. Louis, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1981

259 N.L.R.B. 12 (N.L.R.B. 1981)

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 withcharge 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 havedividual, 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 Troutmanwant 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 Browningabout the phone call shortly after it occurred Browning
serting estimated time on the work orders which wasserting 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 wit e ses , 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-ould not allo hi to take his ife 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 participatedin the activities and made the statements attributed toWhittingham. 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 alsoI i most, if n t all, of Nowak's activities came o 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.