Esco Elevators, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1983

267 N.L.R.B. 728 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Esco Elevators, Inc. and International Union of Ele-
vator Constructors, Local 21. Case 16-CA-
9551
26 August 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 12 February 1982 Administrative Law Judge
Wallace H. Nations issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions, as further explained herein, of the Adminis-
trative Law Judge, and to adopt his recommended
Order, as modified.
The Administrative Law Judge found that em-
ployee Charles McKinney was discharged for his
union activities and activities toward improving the
safety and working conditions on the Employer's
jobs; and that the Employer's district manager,
Payne, seized upon the fight between McKinney
and employee Crouch as a convenient excuse for
firing McKinney. We agree.
Respondent contends that it discharged McKin-
ney for striking the first blow in a fight with fellow
employee Marshall Crouch. This argument, howev-
er, ignores several established facts. The record
shows, and the Administrative Law Judge found,
that Crouch was the instigator of the incident, was
spoiling for a fight, and engaged in two altercations
that afternoon in quick succession: first, with
McKinney, after Crouch had used abusive and
threatening language, and the other immediately
following with employee Stroud. During this
period, District Manager Payne was absent from
the office, but, upon being informed of the fights
on his return, replied that he "wondered when
these boys are going to grow up." Later in the
afternoon he asked employee Boring, "Who struck
the first blow?" but said nothing further. That
evening he went by Crouch's house to check on
his condition.
Thereafter Payne reported the matter to Vice
President Young who ordered Payne to conduct an
investigation. The following Monday Payne dis-
cussed the fight with Crouch. This discussion with
Crouch was the only investigation that Payne con-
ducted until after McKinney was fired. Payne did
267 NLRB No. 119
not discuss the matter with Stroud, or with
McKinney, the other participant.' Nor was
Crouch, who had engaged in two fights the same
day, ever disciplined in any way. To the contrary,
shortly thereafter Crouch was given a substantial
raise in pay.
The disparate treatment shown Crouch and
McKinney dates back to the expiration of the
union contract in June 1980, when Crouch was the
only employee who did not participate in a union-
sponsored "park and walk." At that time, when the
parties were at a stalemate in their negotiations,
and without a contract, the employees, most of
whom utilized their cars for company business and
were subsequently reimbursed, drove their vehicles
to work, parked them in the company lot, and re-
fused to use them on company business. McKinney
and a fellow employee, who drove company trucks
as a rule, refused to work unless they were permit-
ted to transport fellow employees to jobsites, but
Payne refused. This was McKinney's first public
exposure as Local president and spokesman and
Payne's first experience in dealing with McKinney
in that capacity.
The record further shows that Payne assisted
Crouch, whose work was termed "marginal" by
Service Supervisor Hueber, when Crouch had
trouble adequately performing on the job; and that
several times when Crouch could not be reached
during working hours Payne called Crouch at
home to indicate he was needed, and should be, on
the job.
The record is clear that McKinney was consid-
ered by Respondent to be an "undesirable employ-
ee" because of his union activities and his repeated
complaints about safety violations. 2 The fight be-
tween Crouch and McKinney provided Respond-
ent with a convenient excuse to rid itself of an em-
ployee whose union and protected activities had
become a definite annoyance.
i The Administrative Law Judge failed to make explicit his credibility
findings with respect to the conflicting testimony of McKinney and
Payne. It is clear. however, from a reading of the Decision that the Ad-
ministrative Law Judge implicitly resolved this conflict by discrediting
Payne's testimony that he received McKinney's version of the fight
before deciding to discharge him. We have carefully examined the record
and find no basis for reversing the Administrative Law Judge's credibility
findings.
2 In addition to the individual complaints made by McKinney with re-
spect to the safety problems at the Lakeland Manor jobsite, we note that
McKinney brought up the issue at a meeting of management and employ-
ees which was called to discuss problems servicemen were having. We
also note that McKinney raised the safety issue with representatives of
Union, and that one of these representatives also presented the safety
issue to Respondent. McKinney also testified without contradiction that
other employees went out to site, and that he was speaking on their
behalf. Also, McKinney had run for president of the Union on a cam-
paign platform which stressed improving safety conditions for employees
in the local.
728
ESCO ELEVATORS, INC.
Accordingly, we find, as did the Administrative
Law Judge, that, by discharging McKinney, Re-
spondent has violated Section 8(a)(1) and (3) of the
Act. 3
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 below, and hereby orders that the Respondent,
Esco Elevators, Inc., Fort Worth, Texas, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
discharge of Charles McKinney on 5 December
1980, and notify him in writing that this has been
done and that evidence of this unlawful discharge
will not be used as a basis for future personnel ac-
tions against him." 4
2. Substitute the attached notice for that of the
Administrative Law Judge.
See See aas d Slaats. Inc., 254 NLRB 888 (1981).
4Sterling Sugars, 261 NLRB 472 (1982).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise dis-
criminate against our employees in regard to
hiring or tenure of employment or any term or
condition of employment because they engage
in activities protected by Section 7 of the Na-
tional Labor Relations Act.
WE WILL NOT discharge our employees or
in any like or related manner interfere with,
restrain, or coerce employees in the exercise of
their rights to engage in or refrain from engag-
ing in any or all of the activities specified in
Section 7 of the Act.
WE WILL offer Charles McKinney immedi-
ate and full reinstatement to his former posi-
tion or, if that position no longer exists, to a
substantially equivalent position, without prej-
udice to his seniority or other rights and privi-
leges, and WE WILL make him whole for any
losses suffered by reason of our unlawful con-
duct, with interest.
WE WILL expunge from our files any refer-
ence to the disciplinary discharge of Charles
McKinney on 5 December 1980, and WE WILL
notify him that this has been done and that
evidence of this unlawful discharge will not be
used as a basis for future personnel actions
against him.
Esco ELEVATORS, INC.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge:
Upon a charge brought on December 8, 1980, by Inter-
national Union of Elevator Constructors, Local 21
(herein the Union), the complaint issued on January 16,
1981. The complaint alleges that Esco Elevators, Inc.
(herein Respondent), violated Section 8(a)(1) and (3) of
the Act by discharging its employee Charles McKinney.
A hearing was held on September 8 and 9, 1981, at
Fort Worth, Texas, and post-hearing briefs were re-
ceived from all parties.
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 Texas corporation with an office and
principal place of business located at Fort Worth, Texas,
and a branch office and place of business located at
Euless, Texas, where it is engaged in the manufacturing,
sale, and installation of hydraulic passenger and freight
elevators as well as the repair and servicing of elevator
installations when completed. During the past fiscal year,
Respondent received goods, materials, or services valued
in excess of $50,000 directly from suppliers located out-
side the State of Texas and sold products and/or per-
formed services valued in excess of $50,000 directly to
customers outside the State of Texas. I find that Re-
spondent is an employer within the meaning of the Act
and it will effectuate the policies of the Act to assert ju-
risdiction in this case.
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
International Union of Elevator Constructors, Local
21, is a labor organization within the meaning of the Act.
III. 'I'HE ALLEGEDI UNFAIR LABOR PRACTICES
A. Background Information
Charles McKinney began his employment with Re-
spondent in July 1974 and worked continuously until his
discharge on December 5, 1980, with the exception of
the period from May 3, 1977, until May 17, 1978. The
1977-78 break in service was a result of McKinney's res-
ignation to work for another elevator company. In May
1978, he applied for reemployment with Respondent and
was hired by Glenn Young, Respondent's vice president
of field operations, as a route service mechanic, which
entailed the inspection of existing elevators on customers'
property and making adjustments, corrections, and re-
placements of worn parts on a regular basis. On his
return to employment by Respondent in 1978, he was
under the supervision of Service Supervisor Larry Huber
and District Manager Jack Payne. At the time of his dis-
charge, his earnings were $11.14 an hour and his normal
workweek was Monday through Friday from 8 a.m. to 5
p.m. However, McKinney and other route service me-
chanics were subject to call outside of regular working
hours.
B. McKinney's Union and Protected Activities
At all times pertinent, the Union was the certified bar-
gaining representative of the elevator field service em-
ployees (servicemen and repairmen) of Respondent as
well as other elevator companies in the area. The presi-
dent of Local 21 at the time of his discharge on Decem-
ber 5, 1980, was Charles McKinney, having served in
that capacity for approximately 11 months prior to his
discharge. Prior to serving as president of the Local,
McKinney had served 3 years as vice president, from
1977 to 1980, and had served on the executive board of
the Union between 2 and 3 years, encompassing parts of
1977, 1978, and 1979.
During the months immediately preceding his dis-
charge on December 5, 1980, two incidents occurred
which counsel for the General Counsel asserts form the
true basis for the decision to discharge McKinney.
The first of such incidents directly involved McKin-
ney's highly visible union activities. The collective-bar-
gaining agreement between Respondent and the Union
expired in June 1980 and, for a period thereafter, the par-
ties were stalemated in negotiations. The Union decided
to engage in a so-called part and walk. Respondent's em-
ployees, with a few exceptions, utilized their own vehi-
cles in their work. On a day in June 1980, the employees
drove to the Euless office of Respondent, parked their
cars in the parking lot, and refused to use them on com-
pany business. McKinney and a fellow employee named
Bobby Stroud had company trucks and were told by
District Supervisor Payne to utilize the company trucks
and go to work. McKinney asked Payne if he wanted
him and Stroud to deliver the other men to jobsites and
pick them up but Payne replied that he did not have to
work for the other men. At this point, Stroud and
McKinney refused to work and turned in the company
vehicles saying they would not work when fellow union
employees were being denied work by Respondent. This
action on the part of McKinney and Stroud upset Payne,
causing him to address the assembled employees in the
parking lot stating, "What are you guys? Just a bunch of
sheep? You're going to let some guy from the union hall
play God and tell you whether you can work or not?"
The second occurrence involved McKinney's concern
about the safety conditions at a job to which he was as-
signed, the Lakeland Manor job. It should be noted that
McKinney was shown to be very concerned about safety
conditions on the job for both himself and other employ-
ees. In fact, his campaign for president of the union local
was based in large part on a platform of improving
safety conditions for employees in the local. As perti-
nent, during the summer of 1980, McKinney called to
the attention of management of Respondent a potentially
dangerous situation at the Lakeland Manor facility. The
pump units on which McKinney was called upon to
work were installed too close to both the wall and the
ceiling to allow work to be performed on them without
the hazard of electrical shock. The degree of danger in-
herent in the Lakeland situation is not clear on the
record, though McKinney was, on one occasion,
shocked while working on the units and subsequently, as
a result of an OSHA inspection, certain remedial work
was done on the installation to make work safer.
McKinney first mentioned the Lakeland Manor situa-
tion in June 1980, while attending a company school,
complaining to both of his immediate supervisors, Larry
Huber and Jack Payne. During this meeting, McKinney
was told by Payne that something would be done about
the situation. Nothing was done immediately and, as
McKinney was required to service the Lakeland Manor
job two to three times a month, he continued to com-
plain to Payne or Huber consistently throughout the fall
of 1980. On each occasion in which a complaint was
filed with supervisors, McKinney was told that some-
thing would be done about the job though nothing was
done, until after an OSHA inspection following McKin-
ney's discharge in December 1980.
C. Respondent's Alleged Reason for McKinney's
Discharge
As part of Respondent's company procedures, it is cus-
tomary for its servicemen's timecards to be turned in to
the Euless office on Thursdays. However, as Thursday,
November 27, 1980, was a holiday, the employees were
to turn in their timecards on the preceding Wednesday,
November 26. In order to avoid the necessity of all em-
ployees delivering their cards to the Euless office on
Thursdays, it was at least an informal practice for the su-
pervisor to designate one or more of the employees to
rendezvous with the other employees, collect their cards,
and deliver them.
On Wednesday, November 26, Supervisor Payne in-
structed McKinney to go to a service location and assist
fellow employee Marshall Crouch on a job. McKinney
proceeded to the jobsite. Upon arriving there at approxi-
730
ESCO ELEVATORS, INC.
mately noon, McKinney observed Crouch and another
helper preparing to leave the location. Crouch and
McKinney discussed the timecard situation and it was
agreed upon by them that as Crouch was returning to
Euless, in any event, that he would meet McKinney at a
selected location and pick up his timecards as well as the
cards of other employees who were working at that lo-
cation. Both Crouch and McKinney testified that they
proceeded in separate vehicles to the agreed-upon loca-
tion. However, for the reasons which are not clear in the
record, neither Crouch nor McKinney saw each other at
the location and after waiting for each other for a period
of time proceeded independently to the Euless office,
both apparently frustrated and angry over what they felt
was the inconsiderate treatment of one by the other.
McKinney arrived at the Euless location with fellow
employees Bobby Stroud and turned in his tickets. Short-
ly thereafter, Crouch arrived at the office and turned in
his tickets. Although both employees saw each other in
the portion of the office where the tickets were to be
turned in, neither spoke to the other. Thereafter, as
McKinney and Stroud were preparing to leave the prem-
ises, departing through the parts department, they were
approached by Crouch. Crouch demanded to know
where McKinney had been, referring to their earlier
mixup in their agreed-upon rendezvous. The exact words
utilized by Crouch are in dispute, though it is clear that
the tone and manner of the demand was abusive and
threatening. A brief argument ensued with tempers ap-
parently rising on both sides. As a result of this argu-
ment, a fist fight ensued which, though brief in duration,
was evidently intense with both men suffering facial lac-
erations. As most fights do, this one ended with neither
party being seriously injured and McKinney went to a
restroom to clean up. During his absence, Crouch and
Stroud then engaged in a brief struggle which ended
almost as soon as it had begun.
Respondent bases part of its defense in this proceeding
on its assertion that, in the incident between McKinney
and Crouch, McKinney struck the first blow. McKinney
contends that he threw the first blow in self-defense but
management did not learn of this until after his dis-
charge. No matter who threw the first blow in the fist
fight, it is clear that employee Crouch was the instigator
of the incident and was evidently spoiling for a fight as
he variously engaged both McKinney and Stroud.
Almost immediately after the two scuffles, all three in-
volved employees, Crouch, Stroud, and McKinney de-
parted the Company's premises with their differences ap-
parently settled. Aside from the participants, only one
employee, the Company's then parts man Ray Boring,
observed the fist fight.
During the fight, Supervisor Payne was absent from
the office. Thereafter, near closing time, Payne returned
and was told about the fight by his secretaries and parts
man, Boring. Upon being informed of the fight, Payne
commented, "Oh hell, when are these boys going to
grow up?" Boring testified that Payne "just kind of
laughed about it," and later asked, "Who struck the first
blow," but asked nothing else concerning the incident.
That evening, Payne went by Crouch's house to check
on his condition and discussed the fight briefly with him
at that time. Thereafter, Payne reported the incident to
his supervisor, Young, who directed Payne to conduct
an investigation of the matter. After Payne had made an
investigation he was to report the results to Young.
On the following Monday morning, Payne again dis-
cussed the fight with Crouch and was given a detailed
description of the fight from Crouch's standpoint. From
this discussion until after McKinney was fired, Payne did
nothing more to learn about the incident. On the follow-
ing Wednesday, December 3, 1980, McKinney was
called into the office and learned that Jack Payne
wanted to meet him at the Lakeland Manor jobsite about
8 o'clock, Friday morning. Accordingly, on Friday,
McKinney went to the Lakeland Manor jobsite and met
Payne who had arrived with another employee, a com-
pany salesman. Payne and McKinney went to the eleva-
tor area of Lakeland Manor where McKinney showed
Payne the safety problem and again urged that it be cor-
rected. During this conversation, Payne became angry
with McKinney and suggested that they go to a restau-
rant and have some coffee. Payne, McKinney, and the
salesman then went to a nearby restaurant where, imme-
diately upon arrival, Payne excused himself to make a
telephone call. Payne testified that he merely called his
office asking for messages and denied talking to his su-
pervisor, Young. On the other hand, Young testified that
Payne called him on that morning and reported that his
investigation of the fight indicated that McKinney had
started it and threw the first punch. Young testified that
he then gave Payne authorization to terminate McKin-
ney. Payne testified that he did not need authority from
Young to fire McKinney but that he had received such
authority some 2 days earlier in a conversation about the
fight with Young. Young had no recollection of that
conversation at all.
After the phone conversation, Payne returned to the
table and immediately requested that McKinney resign
from the Company. When McKinney declined to resign,
Payne fired him. To this point in the conversation, no
mention had been made of the fight between McKinney
and Crouch. McKinney then brought up the subject of
the altercation and for the first time gave Payne his ver-
sion of the incident. At no time during this conversation
did Payne mention any other incident involving McKin-
ney. Approximately a year prior to the fight with
Crouch, McKinney had been involved in an altercation
with Ray Boring, a witness to the fight and a current
management employee with Esco. This scuffle had been
observed by Young, who after breaking up the two men
advised McKinney that he should not fight. However,
neither McKinney nor Boring was given any formal rep-
rimand or discipline as a result of the Boring incident.
After Payne's conversation with McKinney at the restau-
rant ended, Payne had the salesman accompany McKin-
ney to the company truck where he drove McKinney to
a relative's house and returned the truck to the Compa-
ny.
The other participant in the fight, Crouch, was not
disciplined in any way. In fact, shortly thereafter, he re-
ceived a substantial salary increase. He is still employed
by Esco.
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the evidence supports the General Coun-
sel's position that McKinney was fired for his union ac-
tivities and activities toward improving the safety and
working conditions on the Company's jobs. It appears
equally clear to me that Payne simply seized upon the
fight between McKinney and Crouch as a convenient
reason to rid himself of McKinney. The lack of any com-
prehensive investigation into the fight before the termi-
nation, the disparate treatment given McKinney as com-
pared with Crouch, and the timing and location of the
discharge support this conclusion. Moreover, even after
the discharge, when the complete facts about the fist
fight came to light, no disciplinary action whatsoever
was taken against Crouch. I find that the record indi-
cates union animus on the part of Respondent and a
strong animus by Payne toward McKinney because of
his union and related safety activities. Consequently, I
find that his discharge was for these reasons and not the
reason advanced by Respondent. Accordingly, I find
that Respondent has violated Section 8(a)(1) and (3) of
the Act.
IV. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that Respondent
be required to cease and desist therefrom and to take
certain affirmative actions designed to effectuate the poli-
cies of the Act.
As I have found that Respondent has unlawfully dis-
charged Charles McKinney, Respondent shall be re-
quired to offer to him immediate and full reinstatement
to his former position or, if that position no longer exists,
to a substantially equivalent position without prejudice to
his seniority or other rights and privileges and shall make
him whole for any losses that he may have suffered by
reason of the discrimination against him. All backpay
due under the terms of this Order shall be computed,
with interest, in a manner prescribed in F. W Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).'
CONCI USIONS OF LAW
i. Esco Elevators, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Union of Elevator Constructors, Local
21, is a labor organization within the meaning of the Act.
3. By discharging Charles McKinney because of his
union and protected activities in the advancement of
safety conditions on the job, Respondent has engaged in
unfair labor practices affecting commerce within the
See, generally. Ist Plumbing Co.. 138 NLRB 716 (1962).
meaning of Sections 8(a)(1) and (3) and Section 2(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 2
The Respondent, Esco Elevators, Inc., Fort Worth,
Texas, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against its
employees in regard to hiring, tenure of employment, or
any term or condition of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action, which it is
found, will effectuate the policies of the Act:
(a) Offer Charles McKinney immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges and
make him whole for any losses that he may have suf-
fered by reason of the unlawful conduct involved herein,
in the manner set forth in the section of this Decision en-
titled "The Remedy."
(b) Post at its place of business in Fort Worth, Texas,
copies of the attached notice marked "Appendix." s3
Copies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Preserve and make available to the Board or its
agent, upon request, all records necessary to analyze the
amount due in the effectuation of this remedial Order.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply.
2 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 find-
ings, 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.
3 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."
732