Dooley Equipment Corp.

National Labor Relations Board - Board Decisions

Sep 10, 1980

252 N.L.R.B. 88 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dooley Equipment Corporation and International
Union of Operating Engineers, Local 832, AFL-
CIO. Cases 3-CA-8884 and 3-RC-7354
September 10, 1980
DECISION, ORDER, AND DIRECTION
On April 10, 1980, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions, and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to
adopt his recommended Order,' as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied herein, and hereby orders that the Respondent,
Dooley Equipment Corporation, Rochester, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Add the following as paragraph l(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Creating the impression of surveillance of
our employees' union activities."
2. Add the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Expunge from the personnel file of Edward
Arnold all references to his discharge on October
31, 1978."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED in Case 3-RC-7354 that
the challenge to the ballot of Cesare Aiello be, and
it hereby is, sustained; that the challenges to the
ballots of Stephen Knorr, Edward Arnold, and
John Lanseer be, and they hereby are, overruled;
and that the matter be, and it hereby is, remanded
to the Regional Director for Region 3 for further
proceedings pursuant to our Direction herein.
DIRECTION
It is hereby directed that as part of the investiga-
tion to ascertain a representative for purposes of
I In accord with his dissent in Olympic Medical Corporation, 250 NLRB
No. 11 (1980), Member Jenkins would award interest on the backpay due
based on the formula set forth therein.
2 The Administrative Law Judge inadvertently failed to conform his
recommended Order to his findings. We will, therefore, modify his rec-
ommended Order and notice accordingly.
252 NLRB No. 20
collective bargaining among certain employees em-
ployed by Dooley Equipment Corporation, in the
unit set forth in section 12 of the Stipulation for
Certification Upon Consent Election, the Regional
Director for Region 3 shall, pursuant to the
Board's Rules and Regulations, Series 8, as amend-
ed, within 10 days from the date of this Direction,
open and count the ballots of Stephen Knorr,
Edward Arnold, and John Lanseer, and thereafter
prepare and cause to be served on the parties a re-
vised tally of ballots, including therein the count of
said ballots, upon the basis of which he shall issue
the appropriate certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
about their union activities.
WE WILL NOT create the impression of sur-
veillance of our employees' union activities.
WE WILL NOT threaten our employees with
discharge because they support a union, or
vote in a representation election.
WE WILL NOT discharge or otherwise dis-
criminate against our employees in regard to
hire or tenure of employment, or any term or
condition of employment, because they engage
in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their right to engage in
or refrain from engaging in any or all of the
activities specified in Section 7 of the Act.
WE WILL offer Edward Arnold immediate
and full reinstatement to his former job, or, if
that job no longer exists, to a substantially
equivalent job, without prejudice to his senior-
ity or other rights and privileges, and We will
make him whole for any loss of earnings he
may have suffered as a result of thediscrimina-
tion against him, plus interest.
WE WILL expunge from the personnel file of
Edward Arnold all references to his discharge
on October 31, 1978.
DOOLEY EQUIPMENT CORPORATION
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed by International Union of
88
DOOLEY EQUIPMENT CORP.
Operating Engineers, Local 832, AFL-CIO, referred to
herein as the Union, on January 11, 1979. The complaint
issued on February 7, 1979, alleging that Respondent in-
terrogated employees about their union activities, threat-
ened an employee with discharge if he voted for the
Union, and terminated employee Edward Arnold be-
cause of his union activities. The complaint was amended
at the hearing to allege further that Respondent con-
veyed to employees that their union activities were
under surveillance and threatened employees with dis-
charge and other reprisals if they continued to support
or discuss the Union. In its answer Respondent denies
the commission of any unfair labor practices.
In Case 3-RC-7354 a petition was filed on November
1, 1978, by the Union seeking an election among all me-
chanics and parts employees of Respondent. On Novem-
ber 28, 1978, the Regional Director issued his Decision
and Direction of Election, and on January 5, 1979, an
election was conducted among the employees in the ap-
propriate unit. The tally of ballots shows that of approxi-
mately 10 eligible voters, 3 voted for the Union, 3 voted
against the Union, and 4 cast challenged ballots. On Feb-
ruary 12, 1979, the Regional Director issued his order di-
recting hearing on challenges and order consolidating
cases and notice of hearing in which he consolidated the
challenges to the ballots of John Lanseer, Cesare Aiello,
Stephen Knorr, and Edward Arnold with the unfair
labor practices for purposes of hearing and decision.
A hearing in the consolidated cases was held before
me in Rochester, New York, on July 11 and 12, 1979. At
the conclusion of the hearing the parties waived oral ar-
gument and were given leave to file briefs which have
been received from the General Counsel.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation engaged in the
nonretail sale and service of forklifts, material handling
equipment, and related products at Rochester, New
York. Respondent has annual direct inflow in excess of
S50,000. I find that Respondent is an employer engaged
in commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Status of Stephen Knorr
At the time of the events at issue herein Respondent
was headed by its President James Dooley, Jr. Reporting
directly to Dooley was its Operations Manager Ronald
Schollnick and Battery Manager Raymond Dano. Scholl-
nick also served as service manager. Respondent em-
ployed approximately four mechanics and a truckdriver
who reported to Schollnick as service manager, and a
battery repairman who worked under Dano. In addition,
Parts Manager Stephen Knorr and part-timers John Lan-
seer and Cesare Aiello reported to Schollnick. A clerk
divided his time between the service department and the
parts department.
In its answer Respondent admitted that Dooley,
Schollnick, Dano, and office secretary Barbara Baltzer
were supervisors and agents of Respondent. At issue is
the status of Stephen Knorr who Respondent contends
was a managerial employee or a supervisor.
Knorr was hired to work for Respondent in June 1978,
shortly after Schollnick became operations manager. At
the time of his hire, Knorr was told that he was being
hired as parts manager to replace a former parts manager
who had recently left. The duties of the previous parts
manager were to maintain the parts inventory at levels
necessary to meet customer needs, to buy parts from sup-
pliers at the best price available, to bill customers, to set
parts prices using discretion within certain guidelines, to
return unneeded parts for credit, to obtain warranty
credits, and to take, fill, and ship parts orders.
When Schollnick interviewed Knorr, he told him that
it would take a year to a year and a half for him to learn
the job, that he would work with Knorr for as long as
was reasonably necessary to train him, and that Knorr
would be in charge of the entire parts operation once his
training was finished.
At the time of the representation election in January
1979, Knorr was still in training, and Schollnick spent
approximately half of his time in the parts department,
where he oversaw Knorr's work.' Schollnick instructed
Knorr how to determine prices from published price
lists, using guidelines which depended on the identity of
the customer and the volume of his business with Re-
spondent. For customers for whom Knorr had no specif-
ic instructions Knorr usually charged list price, although
on occasion in response to telephone inquiries he quoted
higher prices if he thought the customer would accept
them. Schollnick generally reviewed and approved
Knorr's pricing of parts and parts orders placed by him
with suppliers, but Knorr did not always check with
Schollnick before quoting prices to customers over the
telephone.
Knorr was paid a weekly salary and was not required
to punch a timeclock after the first few weeks of his em-
ployment. 2 Knorr had some previous experience in in-
ventory control work and had worked on one previous
job for a short period buying and selling fasteners and
screw machine parts. However, he had no special educa-
tional background, and none was required for the job.
In deciding whether Knorr was a managerial employ-
ee at the times material to this case, Knorr's job title is
not determinative. Assuming that the duties and responsi-
bilities of a fully trained independently functioning parts
manager, such as Knorr's predecessor, would bring him
within the established definition of a managerial employ-
Schollnick testified that as of the time of the heraring Knorr's train-
ing had required more of his time and attention than he had anticipated
2 After the union activity started, Knorr decided on his own to resume
punching a timecard and was ordered to stop by Schollnick.
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ee,3 by the time of the representation election Knorr had
not assumed the full duties and responsibilities of the po-
sition, but remained a trainee working under close super-
vision from Schollnick and bound by pricing policy
guidelines, with little discretion to determine prices to be
charged or paid for parts or to determine departmental
policy. There was no formal training program and no
fixed period at the end of which Knorr was either to
assume full managerial duties or leave Respondent's
employ. I find that Knorr from the time of his hire
through the time of the election, when at least 6 months
of his training period remained, was not a managerial
employee.4
Apart from Knorr and Schollnick, the only other
person who worked in the parts department was Steve
Kandas, who divided his time between the parts depart-
ment and the service department. In the parts depart-
ment Kandas checked incoming parts orders as they
were received from common carriers, stocked shelves,
packaged outgoing orders, mailed them, and kept some
records. Knorr told Kandas what work needed to be
done, but did not tell him how to do it. 6
Kandas was Dooley's brother-in-law. He was initially
hired as a salesman. For a period of time before Scholl-
nick was hired he was put in charge of the service de-
partment. After Schollnick was hired, he worked half
time in the service department assisting Schollnick and
substituted for him when Schollnick was absent. Like
Knorr, Kandas was salaried and was paid more than
Knorr.
I find that Knorr's direction of Kandas was at most
routine and that there is no evinence that he possessed
supervisory authority. I find that at all times material
Knorr was an employee within the meaning of the Act.
B. The Beginning of the Union Activities and the
Alleged Interrogation
In the fall of 1978 6 one of Respondent's employees
became dissatisfied because Respondent had terminated
their medical insurance. Around the beginning of Octo-
ber, mechanic Edward Arnold visited Battery Manager
Dano at his home one evening on a personal matter.
Arnold was aware that Dano at one time had been a
union member and he asked Dano what union he had
been in, where its office was located, and who its busi-
ness agent was. Around that time driver Jeff Zornow
also questioned Dano about a union. Shortly thereafter
Dano told Dooley that there was some talk about a
union, that there were too many questions for it to be
coincidental, and that he might have a problem. 7
See Bell Aerospace, A Division of Textron. Inc., 219 NLRB 384 (1975).
Barnes and Noble Bookstores Inc., 233 NLRB 1326, 1341 (1977).
s Although Schollnick testified that Knorr had authority to transfer
Kandas from the service department to the parts department, his affidavit
stated that Knorr had no authority to transfer employees, and Kandas
testified that Schollnick told him where to work. I do not credit Scholl-
nick's testimony in this regard or his attempt to explain away his affida-
vit. To the extent that there is otherwise conflict between the testimony
of Knorr and Schollnick as to Knorr's duties I have credited Knorr.
a All dates referred to herein are in 1978 unless otherwise indicated.
Dano conceded telling Dooley this much, but denied that he told
Dooley who had spoken to him and testified that Dooley said little in
response. According to Dooley, before Schollnick was hired in April he
On October 24, Arnold, Zornow, Parts Manager Ste-
phen Knorr and battery employee Bradley Rist went to
the Union's hall and signed authorization cards on its
behalf. The next day Rist told Dano that they had signed
the cards. 8
On the morning of October 25 office secretary Barbara
Baltzer told Knorr that she knew who had signed the
union cards. Knorr asked her who had signed, and she
replied that four had signed, including Rist, Zornow, and
Alnold. She asked Knorr if he was the fourth. Knorr an-
swered that the fourth was Melvin Logan and not
Knorr. A few days later Baltzer again asked Knorr if he
was the fourth card signer, at this time Knorr told her
that he was.9
I find that Baltzer's statement to Knorr on October 25
that she knew who had signed union cards created the
impression of surveillance of union activities, and her
questioning of Knorr on October 25 and again 3 or 4
days later as to whether he had signed a card constituted
interrogation in violation of Section 8(a)(l) of the Act.' °
C. The Termination of Edward Arnold
On Monday, October 30, Schollnick told Arnold to
get two forklift trucks ready by the end of the day for
rental to Xerox Corporation, a major customer. Arnold
found numerous problems with the trucks and did as
much as he could to fix them in the alloted time. During
the afternoon he told Dooley and Schollnick that there
were problems with the trucks and that he did not think
they should be sent to Xerox. Schollnick told him to fix
them up as best as he could and Dooley said nothing."x
heard rumors that if Schollnick became operations manager a union
might come in, but heard nothing about union activity from then until
November 1. While Dano may have had reason to conceal what he told
Dooley, he had no reason to exaggerate or misrepresent it to the Re-
spondent's detriment. I have credited Dano that he told Dooley about
the employees' interest in the Union
8 Rist testified that he signed his card on October 12 and spoke to
Dano about a week later It appears however that all cards were signed
on October 24 and that Rist spoke to Dano on the next day. Dano con-
ceded that Rist told him that the men had signed cards the previous day
but denied that he told Dooley what Rist had told him As set forth
below, I do not credit Dano's denials that he told Dooley what he
learned from Rist.
9 Knorr so testified. Baltzer testified initially that she overheard con-
versations in her presence among employees about forming a union but
that she never asked anyone who signed the cards and that no one volun-
teered to her whether they had signed cards. She later testified that she
asked how many had signed cards and that it was possible that she asked
who signed cards, but that she did not "interrogate" them. Baltzer denied
that she told Dooley at any time about her conversations with the em-
ployees about the Union. I credit Knorr and not Baltzer's equivocal
denial.
°0 Kraco Enterprises, Inc., 226 NLRB 22 (1976)
" I have credited Arnold as to when he was assigned to work on the
trucks and what he told Schollnick and Dooley. Schollnick testified that
he assigned Arnold to work on these vehicles on the previous Thursday
afternoon and told Arnold that he wanted him to put them into good op-
erating condition without giving him a time limit for completion of the
work. However, he also testified that he told Arnold that there was a
time problem, that he wanted him to be expedient, and that when a
Xerox official later called to complain about the condition of the trucks,
he told Schollnick that he needed the vehicles and that Schollnick had
promised delivery. S-hollnick testified further that before the vehicles
were delivered he spoke to Arnold several times and that Arnold indicat-
ed that he was making progress, finally stating that they were ready for
Continued
90
DOOLEY EQUIPMENT CORP.
Late that afternoon or early the next morning Zornow
delivered the two trucks to Xerox. Before making the
delivery, Zornow was required to fill out predelivery in-
spection sheets. 2 After checking the operating condition
of the trucks, Zornow asked Arnold what was wrong
with them and told him that they would not pass inspec-
tion. Arnold replied that he knew what was wrong with
them but that Schollnick wanted them sent to Xerox and
that he had done everything he could. Zornow noted on
the predelivery inspection sheets what was wrong with
the trucks and indicated that they were not in condition
for delivery. He then went to Schollnick and showed
him the sheets, which Schollnick signed, telling Zornow
to get the trucks out to Xerox. Zornow made the deliv-
ery. While defective, the trucks were operable at the
time of the delivery. 1
Soon after the trucks were delivered, an official of
Xerox telephoned Schollnick and Dooley to complain
that they were unacceptable and could not be used.
Dooley went to Xerox to look at the trucks and
Schollnick sent mechanic Staley there to work on them.
When Dooley returned in midafternoon, he discussed the
matter with Schollnick, and Schollnick told him that he
would handle it.
At around 4 p.m. Schollnick called Arnold to his
office and told him that Dooley had received a call from
Xerox and was "hotter than hell" about the trucks that
Arnold sent out. Arnold responded that he had told
Schollnick that they were not really ready to go, and
Schollnick replied that as far as he was concerned
Arnold was a slipshod mechanic. Arnold asked what that
meant, and Schollnick said that he was not going to
work there anymore. Arnold asked if he was laid off,
and Schollnick said he was fired. Arnold became angry
and told Schollnick that he could fire him for any other
reason but that it was untrue that he was a slipshod me-
chanic. Schollnick made no response, and Arnold left.'4
delivery. Dooley was not asked about any conversation with Arnold
about the trucks. I have not credited Schollnick because it is apparent
from his own testimony that there was a promised delivery date and that
he gave Arnold a time limit for completion of the work notwithstanding
his denial. As for what Arnold told Schollnick about the condition of the
trucks before delivery, not only did Dooley fail to contradict Arnold,
but, as set forth below, Schollnick, did not convincingly rebut Zornow's
testimony as to his report to Schollnick of the condition of the trucks
before delivering them.
12 According to Zornow, Schollnick had stressed the importance of
filling out this form to him. Dooley testified that these sheets were used
until Respondent moved to a new building in April 1979, but that the
sheets were not retained after deliveries were made. Schollnick testified
that the sheets were not in use when he started to work for Respondent,
that they were used only occasionally thereafter, and that he did not
insist on their use. Schollnick did not indicate any reason for using the
sheets only with respect to some deliveries, and I have credited Zornow
that he was required to use them regularly.
13 Zornow so testified. Schollnick testified that he had no specific rec-
ollection whether or not the predelivery inspection sheets were used for
these vehicles, that to his knowledge he did not see such forms for them,
but that he was not saying that they did not exist. He was not otherwise
asked whether Zornow spoke with him about the condition of the trucks
before delivering them. I have credited Zornow.
" Arnold and Schollnick both testified to this conversation Their tes-
timony is not in conflict except as to the place of the conversation and
whether Arnold said that he had told Schollnick the trucks were not
ready to go. I have credited Arnold.
After Arnold had gathered his tools, he saw Scholl-
nick in a hallway and told him he should not have fired
him for the quality of his work. Schollnick made little
response, and Arnold said that firing him would not do
any good because it was too late and "We have already
signed the cards." Schollnick did not respond. '
Staley worked at Xerox for 2 or 3 days until both
trucks were repaired. He ordered a number of parts for
them, but made the repairs without the parts, as they
were not immediately available. He completed work on
one truck by the end of his first day. The other took an
additional day or more to finish. 16
The General Counsel contends, contrary to Respond-
ent, that Respondent knew of Arnold's union activities,
that it had union animus, and that it discharged Arnold
for his union activities and not poor workmanship.
With respect to knowledge, the evidence shows that
the battery supervisor, Dano, was made aware of the em-
ployees' and specifically Arnold's interest in a union a
few weeks before the union activity started and that he
reported the employees' interest to Dooley. In addition,
Dano and Baltzer learned that cards were signed and
who signed them. Although they denied passing that in-
formation on to Dooley or Schollnick, it is not likely
that after having initially told Dooley of employees' in-
terest, Dano neglected or chose not to tell Dooley when
the interest was converted into action. Likewise, it is un-
likely that Dooley's secretary, Baltzer, actively inquired
into the identity of the card signers but then kept the in-
formation to herself. Moreover, between October 24 and
October 31 Arnold and Zornow solicited Kandas and
two mechanics in the shop to join the Union and to visit
the union hall to learn what the Union had to offer.
Given the small size of the shop, the identity of Kandas,
and the likelihood that Dano and Baltzer transmitted
what they knew, I find the inference warranted that the
knowledge of the union activities and the identity of
those who signed cards was transmitted to Dooley and
Schollnick before October 31. 1 do not credit the testi-
mony to the contrary. 17
Is Arnold, Zornow, and Schollnick were in essential agreement as to
this conversation. except that Schollnick testified that after Arnold's last
remark he told Arnold that he did not know what he was talking about. I
have credited Arnold
16 Staley testified in substantial detail as to what was wrong with the
trucks, in contrast to his statement in his affidavit that he could not recall
what was wrong with them. Staley also testified that he was sent to
Xerox early in the morning on October 31, leaving the shop at about 8
a.m. Either Staley is in error in this regard or he was sent before any
complaint was received from Xerox about the trucks. I have concluded
that Staley's recollection was not strong and that his testimony was col-
ored by a desire to demonstrate support for his employer.
17 There is disputed evidence as to whether in addition a letter from
union counsel requesting recognition was received by Respondent on the
morning of October 31, before Arnold's discharge. According to Zornow
and Knorr, Baltzer showed them the letter at about 11 that morning
when it bore no date stamp on it. According to Baltzer, she received the
letter on November I and stamped it immediately on receipt in accord
with her consistent practice. According to Dooley, he first saw it on No-
vember 1. While the date stamp is not conclusive, I have some doubt as
to the accuracy of the recollection of Zornow and Knorr that it was Oc-
tober 31 rather than November I when the letter was shown them, par-
ticularly as Arnold did not file his charge until more than 2 months later
and he significance of the exact date did not become important until
Continued
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apart from Baltzer's interrogation of Knorr before Ar-
nold's discharge, as found below, about a week before
the election Schollnick made explicit threats to Knorr.
These threats establish Respondent's hostility to the
Union. 18
With respect to the cause of Arnold's discharge, Re-
spondent introduced evidence as to Arnold's work
record to support its contention that he was discharged,
for poor workmanship. Schollnick testified to four in-
stances in which Arnold was responsible for unsatisfac-
tory repairs. Of these, however, it is clear from Scholl-
nick's testimony that one, alleged poor work on a bucket
loader, did not become known to Respondent until after
Arnold's discharge. In addition, it appears from the testi-
mony of Staley, who was clearly not hostile to Respond-
ent, that with respect to a second, a repair for Lakeland
Concrete, the nature of the problem and the insufficiency
of Arnold's repair did not become known until after Ar-
nold's discharge. The remaining two instances described
by Schollnick occurred at least 2 months before Arnold's
discharge. One involved a steering problem on a custom-
er's forklift which Arnold worked on without success,
until the cause of the problem was discovered with Sta-
ley's aid. The other incident involved a brake repair by
Arnold about which the customer continued to complain
until Staley located the cause of the problem and elimi-
nated it. Schollnick discussed the problems on each of'
these jobs with Arnold. 9
There is no dispute that on October 31 the Xerox
rental units were delivered while still in need of repair.
The question is, however, whether Arnold was responsi-
ble for the failure to repair them before delivery or
Schollnick bore the responsibility by insisting on their
delivery despite information from Arnold and Zornow
that they were not ready. For reasons set forth above, I
have found that Arnold was given only I day to work
on the two trucks, that Schollnick and Dooley knew of
his inability to complete the repairs, and that Schollnick
approved the trucks for delivery despite this knowledge.
Yet despite the fact that the repairs had not and could
not have been completed before delivery, Schollnick
then. I do not rely on their testimony in this regard. Similarly, I do not
rely on Zornow's testimony as to remarks by Dooley which he over-
heard in the locker room about Teamsters union activity. Insofar as ap-
pears there was no Teamsters activity at the shop, it is likely that
Zornow did not fully understand whatever it was that he heard. I note,
however, with reference to Dooley's credibility in general that Baltzer's
testimony as to what Dooley said to her on receiving the petition is in
sharp contrast to his display of solicitousness to her sensitivities at the
hearing when he expressed reluctance and then voiced an apology to
Baltzer for quoting in her presence crude language used by Arnold on
the day of the election. His reluctance and apology seem clearly to have
been for effect.
l8 In view of this evidence, I find it unnecessary to consider further
Dooley's hostile behavior toward Arnold on the day of the election
when Arnold appeared at the plant in order to vote.
t9 Arnold conceded that there were problems on these jobs which
Schollnick discussed with him but testified that Schollnick did not criti-
cize his work. Schollnick testified that he attempted to speak to Arnold
about these jobs but that Arnold did not take criticism graciously. In re-
sponse to a leading question he testified that he talked to Arnold about
his conclusion that Arnold had not done the work properly. However,
when asked specifically what he said to Arnold, Schollnick testified only
that he asked Arnold why he was having problems with these repairs,
why they were taking so much time, and how they could correct them,
consistent with Arnold's testimony. I credit Arnold.
placed the entire responsibility on Arnold after Xerox
complained. 20
Whatever the shortcomings in Arnold's work on the
two prior jobs, it is clear that Schollnick did not deem
these incidents as sufficient cause to terminate or disci-
pline him. The Xerox incident furnished no additional
cause. Rather it appears that Schollnik deliberately either
placed Arnold in a position of vulnerability by insisting
on delivery of the trucks before they were ready or after
insisting on their delivery to meet the customer's dead-
line sought, when the customer complained, to hold
Arnold responsible for reasons unrelated to Arnold's
workmanship. In either event I find the inference war-
ranted that Schollnick's true reason was the recent union
activities in which Arnold played an active role. I find
that Arnold's failure to complete the repairs on the
Xerox rental units was not the cause of his discharge but
was used by Schollnick as a pretext to rid Respondent of
Arnold for his union activities and that his discharge vio-
lated Section 8(a)(3) of the Act.
D. Alleged Threats by Scholnick
A week or two before the January 5, 1979, election
Schollnick asked Knorr to accompany him to look at a
new building which Respondent was constructing. As
they were returning Schollnick stopped the truck and
told Knorr "You have to stop stabbing me in the back
with all this Union bullshit and everything. You came to
me when you needed a job and I hired you. I am not
going to stand for it .... If you don't like it, you can
just leave, because I am going to fire you and you are
not going to vote, whether the Union gets in or not. If I
hear anymore of this Union business or if I hear you dis-
cussing this conversation with anybody outside, between
us, that I am going to have you fired; and that includes
not telling the Union lawyers or the Union or anybody."
Schollnick also told Knorr that he would fire him if he
voted in the election and that he would fire him for or-
dering thousands of wrong parts or any other exaggera-
tion that he wanted to come up with. Knorr said nothing
in response. 2 '
20 That Arnold could not have completed the repairs in one day was
confirmed by Staley's report to Schollnick on the day of Arnold's dis-
charge that extensive additional work was needed which Staley could not
complete in one day.
21 Shortly before this incident Knorr, who was salaried, asked Barbara
Baltzer to prepare a timecard for him and he started to punch the time-
clock as he had for the first several weeks of his employment. When
Schollnick saw the card, he ripped it up, told Knorr that he was not
going to vote in the election, and that no one had said he could punch
the clock. According to Knorr, the visit to the new building and the
above-described conversation took place an hour later. Schollnick testi-
fied that he was upset when he saw the timecard and ripped it up, telling
Knorr that he was management and not someone who punched a time-
clock. However, Schollnick was not asked about the visit to the new
building and only denied generally that he had any discussion with Knorr
about unions. From Schollnick's testimony as well as Knorr's it appears
that Schollnick was upset with Knorr because he viewed his punching of
the timeclock as inconsistent with Respondent's position that he was
managerial. Clearly Schollnick's concern was not a matter of abstract
principle but was tied to the pending election. Knorr's testimony is un-
contradicted that within an hour of the conversation about the timecard
Schollnick asked Knorr to accompany him on a visit to the new building,
and I credit Knorr that Schollnick used this visit as an opportunity to tell
Continued
92
DOOLEY EQUIPMENT CORP.
I find that Schollnick threatened to discharge Knorr
for engaging in union activities or voting in the election
thereby violating Section 8(a)(l) of the Act.
IV. THE CHALLENGED BALLOTS
Having found above that Edward Arnold was discri-
minatorily discharged and that Stephen Knorr was an
employee within the meaning of the Act, I find that they
were eligible voters whose challenged ballots should be
opened and counted.
There remain for consideration the ballots cast by
John Lanseer and Cesare Aiello.
Lanseer and Aiello were both employed full-time as
welders by Eastman Kodak. Each performed work for
Respondent as they were needed and available evenings
and weekends. Lanseer started to work for Respondent
in 1969 and Aiello around 1974. Respondent paid both
on an hourly basis for work performed, although on one
or two-occasions Lanseer was paid by the job rather
than by the hour. They performed their work in Re-
spondent's shop and utilized Respordent's equipment.
Usually they were assigned heavy welding for the repair
of forklifts which Respondent's other mechanics did not
do. As necessary, they also dissassembled and reassem-
bled forklifts in need of welding, and in that work they
sometimes worked with Respondent's other mechanics.
Usually they worked alone and often without supervision
present. Lanseer and Aiello were paid either in cash or
by check and on occasion Respondent repaid loans for
them rather than paying them directly. Respondent did
not deduct social security or income taxes from their
payments, and they did not receive any fringe benefits. 2 2
Respondent's records of payment to Aiello show that
in calendar year 1977 Aiello received only four checks.
One in January, two in April and one in October, with a
total payment for the year of $284.50. In calendar year
1978 Aiello received single checks in February, March,
April, May, September, and October and two checks in
July. His total 1978 compensation was $602.25. At the
time of the hearing, Respondent paid Aiello $7 an hour.
Respondent's records of payment to Lanseer show
more substantial work on his part in 1978. Although he
received no payments between June 22 and November
28, 1978, in November Respondent made a loan payment
in Lanseer's behalf in excess of $2,000, and it appears
that the payment reflected the accumulation of Lanseer's
earnings between June and November. Lanseer received
one or more payments each month from January through
June and an additional substantial payment in December.
His total compensation in 1978 from Respondent was
$3,382.67.
The questions to be answered are whether Lanseer
and Aiello were independent contractors and, if not,
whether as part-time employees they had sufficient com-
munity of interest with Respondent's full-time mechanics
to be included in the bargaining and worked with suffi-
cient regularity to be eligible to vote.
Knorr what would happen if he sought to vote as a bargaining unit em-
ployee. I do not credit Schollnick's general denial.
aa Lanseer testified that he was offered insurance benefits about 5
years earlier but turned them down because he had insurance from his
full-time employment.
From notations on the checks given to Lanseer and
Aiello as well as the lack of deductions for social secu-
rity and income taxes it appears that Respondent treated
them as subcontractors for bookkeeping purposes. How-
ever, that fact is not determinative of their status in this
proceeding. 23 That determination depends on whether
Respondent reserved the right to control both the results
to be achieved by them and the means to be used in
achieving them.2 4 Here the facts show that Lanseer and
Aiello are skilled welders who perform their welding
work essentially without any direction. However, in as-
sembling and disassembling vehicles they take direction
from Schollnick and occasionally work with other me-
chanics. They do not determine when they will work but
come to work as requested and needed by Respondent
and utilize Respondent's shop and equipment. Both have
full-time employment elsewhere, and there is no evi-
dence that they make themselves available to perform
welding by the job for enterprises other than Respond-
ent. I find that Lanseer and Aiello were employees of
Respondent within the meaning of the Act.2 5 Further-
more, based on the nature of the work performed by
them, the place of performance, their supervision, and
the fact that they occasionally work with Respondent's
mechanics, I find that they are properly included in the
unit with Respondent's mechanics.
In the case of Lanseer, Respondent's pay records indi-
cate that he worked regularly throughout the year
before the election and received substantial earnings up
to the election. I find that Lanseer was a regular part-
time employee and was eligible to vote.
As for Aiello, in 1977 he worked only 3 months and
received insubstantial earnings. In 1978 Aiello worked
more hours, but most of his work was performed during
the first half of the year. In similar situations the Board
has used as a formula for determining eligibility whether
or not an employee had worked a minimum of 15 days in
the calendar quarter immediately preceding the eligibility
date. 26 During the months of September and October
Aiello's total earnings from Respondent were S73.50, and
he had no earnings in the months of August, November,
or December. Even assuming an hourly rate substantially
less than his $7 rate at the time of the hearing, it appears
that Aiello worked no more than 15 hours during this
period. I find in these circumstances that Aiello did not
work with sufficient frequency during the quarter pre-
ceding the November 25 eligibility date to be eligible to
vote in the election.
Accordingly, I recommend that challenges to ballots
of Knorr, Arnold, and Lanseer be overruled, that the
challenge to the ballot of Aiello be sustained, that the
Regional Director open and count the ballots of Knorr,
Arnold, and Lanseer, and that he issue a revised tally of
2s Fraley & Schilling. Inc., 211 NLRB 422 (1974).
24 City Cab Company of Orlando, Inc..' Yellow Cab Company of Orlando
Inc. d/b/a Yellow Cab Co. and Dixie Cab Co., 232 NLRB 105, 107 (1977).
25 Cf Local Union 224 and Local Union 830, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefirting Industry, etc. (Ber-
nard Pipe Line Company), 152 NLRB 902, 904, fn. 6 (1965)
2 Manncraft Exhibitors Services Inc., 212 NLRB 923 (1974), Daniel
Ornamental Iron Co.. Inc., 195 NLRB 334 (1972).
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots and such certification as thereafter may be appro-
priate.
V. THE REMEDY
Having found that respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully dis-
charged Edward Arnold, I shall recommend that Re-
spondent be ordered to offer him immediate and full re-
instatement to his former job, or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to her seniority or other rights and privileges. I shall fur-
ther recommend that Respondent be ordered to make
him whole for any loss of earnings he may have suffered
as a result of the discrimination against him by payment
to him of the amount he normally would have earned
from the date of his termination until the date of Re-
spondent's offer of reinstatement, less net earnings, to
which shall be added interest to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 27
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Dooley Equipment Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Union of Operating Engineers, Local
832, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating an employee as to his union activi-
ties and by threatening an employee with discharge if he
continued to support the Union or voted in a representa-
tion election, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(1) and 2(6) and (7) of the Act.
4. By discharging Edward Arnold because of his union
activities, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) and
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 28
The Respondent, Dooley Equipment Corporation,
Rochester, New York, its officers, agents, successors,
and assigns, shall:
27 See also Isis Plumbing & Heatag Co., 138 NLRB 716 (1962).
68 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
I. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities.
(b) Threatening employees with discharge because
they support a union or vote in a representation election.
(c) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment, because they
engage in union activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Edward Arnold immediate and full reinstate-
ment to his former job, or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a
result of discrimination against him 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 pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rele-
vant and necessary to a determination of compliance
with this Order.
(c) Post at its Rochester, New York, place of business
copies of the attached notice marked "Appendix." 29
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
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.
29 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
94