JLG Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1979

243 N.L.R.B. 540 (N.L.R.B. 1979)

DI)t('SIO)NS ()F1: NA FIO)NAL ILABOR RILAT IONS BARI)
JLG Industries, Inc. and Charles D. Kincaid. ('ase 6
CA 11024
Jul_ 18. 1979
I)F('ISION AND ORDER
BY MMBliRS JENKINS, MIURPIIY. AND) TIRtISI)AI.t
On March 30, 1979, Administrative Law Judge
Karl H. Buschmann issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in opposition to those exceptions.
Pursuant to the provisions of Section 3(b) of the
National abor 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
In November 1977, employee Charles Kincaid filed
an unfair labor practice charge against Respondent.
On December 22, 1977, at the conclusion of Kincaid's
merit review, Respondent's shift foreman stated to
Kincaid, "[Y]ou shouldn't go to outsiders for help
with problems concerning you in here with what we
tell you to do, where to go, and how to do it." The
Administrative Law Judge concluded, and we agree,
that "[t]he statement ... would be meaningless un-
less" the foreman "knew that Kincaid had indeed
sought outside help": i.e., if Kincaid had gone to the
Union. The Administrative Law Judge found, how-
ever, that the foreman's remark fell short of implying
any threats of adverse consequences, and he therefore
dismissed the 8(a)(1) violation. Contrary to the opin-
ion of the Administrative Law Judge, we find that the
foreman's statement tended to place a restriction on
Kincaid's union activities. As such, it clearly consti-
tuted interference with, and restraint of, Kincaid's ex-
ercise of his Section 7 rights and was therefore coer-
cive and in violation of Section 8(a)(l) of the Act.'
I Interstate Transport Securiry/Diviision of PJR Enterprises. Inc., 240
NLRB 274 (1979). We have taken this finding into consideration in deter-
mining whether Kincaid's discharge violated the Act as alleged. We find it
insufficient to alter our conclusion and finding, in agreement with the Ad-
ministrative Law Judge, that the General Counsel has failed to establish by
a preponderance of the relevant evidence that Kincaid was discharged be-
cause of his union activity, rather than for cause. Thus, we note the serious-
ness of the charged offenses (destruction of company property and theft}
relied upon by Respondent in discharging him; that asserted offenses led to
his prompt dismissal and occurred almost 3 weeks after the foreman made
the above unlawful statement the absence of evidence showing disparate
treatment for similar offenses; and, finally. that the violation finding merely
emphasizes the fact of Respondent's admitted union animus. rather than
adding a new dimension to the issue-such animus already having been
considered by the Administrative Law Judge in reaching his finding concern-
ing Kincaid's discharge, and again by us in affirming it.
The Remedy
I tlving found that Respondent has engaged in ccer-
tain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
ORD)ER
Pursuant to Section 10(c) of the National l.abor
Relations Act, as amended, the National l.abor Rela-
tions Board hereby orders that Respondent. JG In-
dustries. Inc., McConnellsburg, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interfering with employee efforts to engage in
union or other protected concerted activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its McConnellsburg. Pennsylvania, fa-
cility copies of the attached notice marked "Appen-
dix."2 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
signed by its authorized 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 customarily are
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
It IS FURIIE R (RI)I REI) that the complaint be, and
hereby is, dismissed insofar as it alleges violations of
the Act not specifically found herein.
2 In the event that this Order is enforced by a Judgment f a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Onder of the National
Labor Relations Board."
APPENDIX
NOTI('E To EMPIOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT interfere with employee efforts
to engage in union or other protected concerted
activity.
243 NLRB No. 92
54(
Jl( INI)t SIRIfS, IN(C
W'1 ili N)I ill av like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Acl.
.1J.( II S RI s, IN.
D)E(ISION
KARI II. BI s( IIMtN\. Administrati e Iaw .lucldge: T'his
case arose upon a charge filed on March 6. 1978. h ('harles
Kincaid and upon a complaint issued o, April 26, 1978.
against Jl.(i Industries. Inc.. Respondent. Ihe complaint
alleged that Respondent violated Section 8(a)(I). (3). and
(4) of the Act by discharging ('harles Kincaid. and that
Respondent violated Section 8(a)( I) of the Act hb instruct-
ing Charles Kincaid not to file charges or give testimony
under the Act or to seek the assistance of the UInion.
Respondent's answer, tiled May 8. 1978. as amended, ad-
mitted all jurisdictional allegations in the complaint, as well
as the ('ompany's discharge of Kincaid. hut it denied the
commission of any unfair labor practices.
A trial was held befbre me on December 6. 1978. in
McConnellshurg, Pennsylvania. Counsel for both parties
filed briefs. pon the entire record. including my observa-
tion of the witnesses and after consideration of the briefs
filed by counsel. I make the following findings of fact and
conclusions of law.
FINDIN(i ()I FA( I
JLG Industries, Inc., is a Pennsylvania corporation with
its principal office and facility located in McConnellsburg.
Pennsylvania. The Company manufacturers and sells hy-
draulic lifts. It is admittedly an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Union, International Brotherhood of Teamsters.
Chauffeurs. Warehousemen. and Helpers of America. In-
dustrial and Allied Workers, Local Union No. 32. is admit-
tedly a labor organization within the meaning of- Section
2(5) of the Act.
In March 1977, the Union began an organizational drive
among several of the Company's 330 employees. On May
18. 1977, a representation petition was filed, and pursuant
to stipulation for certification upon consent election. an
election was held on July 14, 1977. in which the Union lost
the election. The Union filed objections to the election and
a rerun election was scheduled, but was subsequently with-
drawn by the Union.
Charles Kincaid, employed as a mechanic since June 5.
1972. played a leading role in the union drive. He had
signed an authorization card and distributed union cards to
about 19 of his fellow employees. He was a member of the
Union's in-plant organizing committee and had union stick-
ers affixed to his toolbox and welding hood. He attended
two in-plant committee meetings in April and four organi-
zational meetings in May and June. Three days before the
election, he handed out leaflets and wore a Teamster T-
shirt. Kincaid was regarded by David J. Goudreau. union
president. as one of five most active union supporters. Al-
though Ken Brumbaugh was the leader amon2 the union
adherents
Respondent generally admitted its opposition to the
UInion, and that it had conducted meetings during vwhich it
had expressed its iee.,s opposing the representation of its
production and maintenance emplosees b the 'nion.
Moreover. the record shows that in Ma5 or June. John I..
(Grove Respondent's president. approached Rex I)isens, an
employee. and asked about union stickers which were at-
fixed on the employee's helmet. When Dix.ens attempted to
offer an explanation about the union emblems. (irose pro-
ceeded to compare the Union to the Mafia and commented.
"hov can one man be so dumb?"
Respondent also expressed its antiunion position through
its plant supervisor Eugene Swope. when, on June 13. Kin-
caid and Swope met socially at the Masonic odge. )uring
the ensuing conversation. Swope slated: "''I wish tou hadn't
gotten involved with the Union. There's people that fro\wns
upon it." Similarly. shortl after the union election on July
14. Kincaid spoke with Ihomas Botscharow,. who later be-
came Kincaid's immediate supervisor, about the linion's
loss. Kincaid indicated that he sished for another job and
Botscharow replied: [Alfter this union business is over.
there is going to be general house cleaning in the office and
the shop area."
November 1977. Kincaid contacted the Union to com-
plain about being harassed by Foreman Fred Hlufflman and
about being singled out by Huffman for his failure to wear
safety glasses. The record shows that Hufflman had ordered
Kincaid on two occasions to wear safety glasses. T'he Union
promptly contacted the Board and filed an unfair labor
practice charge. The charge alleged as unlawful conduct
Botscharow's remark concerning the ('ompans's plans to
clean house. In a subsequent interview with a Board agent.
Kincaid also explained his accusations of- harassment in
connection with the safetr glasses. However, after plans fr
a rerun election set for December 8 were cancelled, the
Union also withdrew the unfair labor practice charges.
Respondent's conduct, which gave rise to the alleged
8(a)(1) violation occurred on December 22. 1977. in con-
nection with the semiannual merit review. Present at the
interview were Foreman Huffman and Supervisor Bot-
scharow who explained a written evaluation of Kincaid
(Resp. Exh. 2). The performance review assigned an overall
rating of only "fair" to his work and rated several areas of
his performance in greater detail. At the conclusion of the
oral interview. uffman observed, "you shouldn't go to
outsiders for help with problems concerning you in here
with what we tell you to do, where to go, and how to do it."
Although Kincaid testified that he never told anyone con-
nected with his Employer that he had earlier contacted the
Union or the Board. he assumed that Huffman's remarks
referred to this subject. and informed Botscharow of this
while they were both leaving the interview. On that occa-
sion Kincaid said that he had gone to the Board for his own
pl otection.
Respondent's conduct giving rise to the 8(a)(3) and (4)
violation related to an incident on January 9. 1978. when
Kincaid. for his personal use, fashioned a set of fireplace
tools out of company material. He had obtained the materi-
als from scrap and two slag hammers which, according to
541
I)I.( ISI()NS Ot) NA IO()NAI. A(BOR REIA I I()NS BO()ARI)
his testimony. "were laying on the floor close to the wall in
[his] work area behind two trash cans.'' In his words, the
condition of the slag hammers "was fair. 'lhe wasn't bad.
They wasn't real good, hut they was lair. They were
useable." lie denied that they were "practically brand new"
and conceded that he sought no one's permission to use
them. The replacement value of a slag hammer was esti-
mated at about $4. o make the shovel and poker, Kincaid
cut off the coil handle from the slag hammers, welded theml
to the fire place tools, and threw the remainder of the ham-
mers into the trash can.
In the past, there had been no objection by the ('ompany
to employees' making items for personal use, as long as they
did it on their own time and from scrap material. In the
past. Kincaid had made a dump trailer, a shovel plow. and
other farm tools in accordance with company policy. In this
instance, Botscharow, who had observed Kincaid cleaniig
the tools, even complimented him for his skill in being able
to fashion the items and voiced his approval when Kincaid
told him that he had gotten the handles off of' two slag
hammers he found laying against the wall.
Prior to leaving the plant, Kincaid. from a secretary in
the office, obtained a pass authorizing the removal of per-
sonal, saleable, and nonsaleable items. Ihe items were de-
scribed as "24 lbs. of scraps" and the box for "Purchase of
saleable company property" was marked. On his way out of
the plant, foreman Swope passed by, saw the tools, and
said: "That's a nice looking job."
On the afternoon of January 11, 1978. Botscharow told
Kincaid that Swope wanted to see him. Assembled in
Swope's office were Plant Manager George E. Smith, Per-
sonnel Director Richard Huff'. and Swope. Smith then pro-
ceeded to quiz Kincaid about the fireplace tools. Kincaid
readily conceded that he had made the tools 2 days ago.
When asked how he had obtained the handles. Kincaid re-
plied that he had gotten them from two old slag hammers.'
Smith then showed him the remnants of two slag ham-
mers-which apparently had been placed on Swope's desk
a day earlier by second shift Foreman Eugene Keehaugh
who had retrieved them from the trash cans - and inquired
from Kincaid whether those were the ones which he had
used. Although these hammers appeared in new or partially
new condition, Kincaid admitted that these were the ones.
The record contains the two hammers, as well as a new
one for comparison. In accordance with Respondent's testi-
mony, an examination of their condition shows that one of
the hammers appears as never having been used (Resp.
Exh. 6); the other one appears to have been slightly used
(Resp. Exh. 7). The General Counsel has not disputed this
evidence.
Following the brief confrontation involving Kincaid's use
of two slag hammers, Smith informed Kincaid that he was
discharged. Kincaid replied that he could not understand
that they would fire him over something like that without a
chance to make up for it or to pay for it. Although suggest-
I credit Swope's and Smith's estimony to the extent of Kincaid's use of
"old slag hammers," since that term is not far from the import of Kincaid's
own testimony, i.e., "slag hammers that I found laying along the wall in my
work area thal had been laying there for a week." or his description of1 their
condition. "IT]hey wasn't real good, but they was fair." or his denial that
they were practically brand new, and his opinion that they were discarded
ing that the (ompany might do something other than fire"
him, and explaining that he had gotten a pass, the coimpany
oflicials repeated that he was fired. W'hcn Kincaid returned
to his toolbox to clear out his belongings, he told Bot-
scharow that he had just been lired t(; which IBotscharow
expressed his surprise.
'Ihe Hourly F mployee's lIandbook of1' Jl(i Industries
prosides that: (Resp. xh. 4): "In general, the foillowing
violations are the principal ones which can result in dis-
missal for cause: I. I)ishonest or theft 2. I)eliberate de-
structiton or renoval of' conpan or fellow-eniployee prop-
ertN . . . . Nevertheless, the General ('ounsel argues that
the discharge w as motivated improperly.
Immr/'rc nc ( oitll prolcl It ra/is
Section 7 of' the National I.abhor ReKlations Act gives enm-
ployces the right to engage in concerted activities for the
purpose of' mutual aid and protection. An employee's ef:-
forts to seek the assistance of a labor organization concern-
int his working conditions tall squarely within the ambit of'
that protection. and a employer's interfierence with that
light violates Section 8(a)( 1) of the Act.
T'he record is clear that Kincaid had contacted the Ulnion
because he felt harassed, or as he explained later to his
supervisor, to have an "ace in the hole." T'he Union filed a
charge with the National l abor Relations Board and Kin-
caid cooperated with the investigator process of the Board
in anll interviewv with a Board agent. Even though Kincaid
clearly testified that he had not informed his Employer of
his actions in this regard and even though it was stipulated
on the record that the Board had not notified the ('ompan
of its investigation of' the charge, an inference is justified
that Iluffman's statement during the D)ecember 22 inter-
view with Kincaid had reference to his contact with the
Union. TIhe statement. "you shouldn't go to outsiders for
help with problems concerning you in here with what we
tell ou to do. where to go. and how to do it." would be
meaningless unless luffl'an knew that Kincaid had indeed
sought outside help.
Ilowever, I cannot agree with the G(eneral C'ounsel that
this statement alone or in the context of' the totality of all
circumstances, including the clear showing of this Employ-
er's union animus, amounts to a iolation of Section 8(a)( )
of' the Act. To make out a violation of Section 8(a)( I) under
these circumstances there has to be evidence of at least an
implied or implicit threat, and the cases relied upon by Re-
spondent recognize this requirement. In my opinion, Huff-
man's remark fell short of' implying any threats of adverse
consequences. Accordingly I dismiss the allegations of an
8(a){ I ) violation of' the Act.
71The discharge of Kincaid
Section 8(a)(3) of the Act prohibits an employer's dis-
crimination with regard to hire or tenure of employment to
discourage membership in any labor organization.
It is also well established that an employer has a right to
take disciplinary action against his employees to promote
order and efficiency in the plant. Iowever, if a discharge
542
JIG INI)tISIRIIiS, INC
"for cause" is mainl', motivated bh antiunion consideration.
it violates Section 8Xa)(3). for the question is: What was the
real reason behind a discharge 2
In the case at hand, the record shows and Respondent
has admitted the union animus. In addition, the record has
fully established Kincaid as a union activist. Although not
the most prominent of the union adherents. Kincaid was at
least among the top five union supporters. As a result, the
issue surrounding Respondent's true motivation in the dis-
charge of Kincaid is concededly not an easN one). Mindful
of the requirement that the burden of proof rests on the
General Coun:el, I must conclude that a thorough and con-
sidered review of the record evidence does not support his
position. The General Counsel has not really disputed that
this employee had indeed destroyed company propert,. and
that his conduct in removing the handles from comipany
property to build fireplace tools for his own use can fairlI
be considered as theft, although the value of the material
used may have been low. Moreover. I do not fully agree
with the General Counsel's assessment of Kincaid's appear-
ance of honesty and frankness towards his employer. To be
sure, he did not hide the items from them, and he had ob-
tained a pass, but when asked where he had gotten the
handles, he carefully concealed the fact that the slag ham-
mers were in new or almost new condition. lie merely ex-
plained that the coil handles came from two slag hammers
which had been laying behind the trash cans for a week.
The general impression of such a remark is that these ham-
mers had been discarded. There is no question that a toler-
ant company policy. giving employees permission to tash-
ion useable items for personal use out of scrap material
with company tools and on company property had been
abused. Kincaid had made liberal use of this company pol-
icy in the past and was obviously familiar with it. It goes
without saying that dishonesty. theft, and destruction of
company property are among the most serious infractions
of any company policy. even though the value of the par-
ticular item may be slight.
2 My analysis herein i equalls aipphlcable it the 8(aH4) allegation
Bolh sides submilled erN persualrse briets
While I agree with the General (Counsel that the (ompa-
n's sanction. i.e.. the discharge of an employee, under
these circumstances appears unduly harsh, particularly
since the items were of such low alue. and since Kincaid
prcitously had not received any disciplinary warnings or
suspension. the record does not support a tinding of; an
disparate treatment. Respondent's list of warnings. suspen-
sions. and discharges from 1975 to 1978 (i(. Th. 3)
shows the number and identits of emplo ees who ere dis-
ciplined during these yars. While the iGeneral (Counsel
points to two employees who receiled a 3-day suspension
for destroying compan property and others aho ere not
discharged even though they had committed other infrac-
tions oft compan} policy. there is no e idence thalt destruc-
tion of property and theft bh others had been condoned or
treated ith more smpathy than in this case. But there
were examples of one employee who was discharged for
wrecking a company truck andi not reporting the accident.
and another discharge because of unauthoried absence
and damage to comnpany equipment.
(Considering that Kincaid was not the most prominent of
the union activists, and that the (jeneral Counsel has not
shown any disparate treatment or similar offenses. and fur-
ther considering the relatively serious charges in ol ed
here. I cannot find that union considerations were the true
motive behind this dischargee
CO ()N(I SIt)NS )i l.A)
I. J G Industries. Inc.. is an employ'er engaged in com-
merce within the mean;ing of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters. (hautleurs.
Warehousemen and Helpers of America. Industrial and Al-
lied Workers ocal nion No. 32 is a labor organizalion
within the meaning of Section 2(5) of the Act.
3. 1 he (General (ounsel has tliled to sho b a prepon-
derance of the eidence that Respondent Jl.(i Industries.
Inc., violaled Section 8Xa)( I ). (3), or (4) of the Act.
IRecommiended Order or dismissal mitted from publi-
cation.]
543