M-B Co., Inc. Of Wisconsin

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 68 (N.L.R.B. 1988)

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