Motor Service & Supply of Buffalo Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1969

174 N.L.R.B. 657 (N.L.R.B. 1969)

MOTOR SERVICE & SUPPLY OF BUFFALO 657
Motor Service & Supply of Buffalo Inc. and
International Union of Operating Engineers, Local
17C, AFL-CIO Cases 3-CA-3513 and 3-RC-4416
February 19, 1969
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for International Union of
Operating Engineers, Local 17C, AFL-CIO, and
said organization is not the exclusive representative
of the Employer's employees in the unit heretofore
found appropriate by the Regional Director for
Region 3, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
TRIAL EXAMINER'S DECISION AND REPORT
ON CHALLENGES TO BALLOTS
STATEMENT OF THE CASES
On October 21, 1968, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
proceedings, finding that the Respondent had not
engaged in certain alleged unfair labor practices and
recommending that the complaint herein be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. In addition, the Trial
Examiner, having found that employee Edward
Rocchio had been discharged for cause,
recommended in Case 3-RC-4416, that his ballot
not be counted. Thereafter, the General Counsel
filed exceptions to the Decision, and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
Although the Trial Examiner recommended that
the ballot of Rocchio not be counted, he made no
disposition of Case 3-RC-4416. We shall therefore
sustain the challenge to the ballot of Rocchio and
issue a Certification of Results of Election.
WILLIAM W. KAPELL, Trial Examiner: Case 3-CA-3513,
a preceding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was
heard in Buffalo, New York, on August 8 and 9, 1968,'
with all parties participating pursuant to notice on a
complaint= issued on July 17 by the Regional Director for
Region 3 of the National Labor Relations Board,
hereafter called the Board, alleging violations of Section
8(a)(1) and (3) by' Motor Service & Supply of Buffalo
Inc., hereafter called the Respondent. The complaint, in
substance, alleges that Respondent in violation of Section
8(a)(1) and (3) of the Act unlawfully discharged Edward
Rocchio and thereafter failed and refused to reinstate him
because of his union activities. In its duly filed answer,
Respondent denied any violations of the Act, admitted the
discharge of Edward Rocchio, and pleaded he was
discharged for cause.
In Case 3-RC-4416, a hearing was directed by an order
of the Regional Director, dated July 17, to resolve the
challenged ballot of Edward Rocchio at a consent election
held on May 24, which is sufficient to affect the outcome
of said election.' The hearing on said challenge was
consolidated with the hearing in Case 3-CA-3513 by an
order of the Regional Director, dated July 17.
All parties were accorded full opportunity to be heard,
to introduce relevant evidence, to present oral argument,
and to file briefs. Respondent and the General Counsel
filed briefs which have been duly considered. On the entire
record in the case, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. COMMERCE
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the challenge to the
ballot of Edward Rocchio filed in Case 3-RC-4416
be, and it hereby is, sustained.
At all times material herein, Respondent has
maintained its principal office and place of business in
Buffalo, New York, where it is engaged in the sale, rental
service, and repair of forklift trucks, and the sale of other
automotive products not connected with forklift trucks. In
the course and conduct of its business operations, during
' All dates hereafter refer to the year 1968 unless otherwise noted.
'Based on an original charge filed on May 22 by International Union of
Operating Engineers Local 17-C, AFL-CIO, hereafter referred to as the
Union, and amended charges filed thereafter on May 28 and July 12,
respectively.
'A challenge to the ballot of another employee , Donald W. Speck, was,
in effect, sustained when the parties stipulated (G.C. Exh . 3) that he was
terminated on May 22, and has not since been reemployed.
174 NLRB No. 104
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
the past year , Respondent purchased , transferred , and had
delivered to its Buffalo plant , goods and materials valued
in excess of $50,000, of which in excess of $50,000 were
transported to this plant directly from States in the
United States other than the State of New York.
Respondent admits, and I find, that at all times material
herein it has been engaged in commerce as an employer
within the meaning Of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that at all times material herein the Union has
been a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Background
Edward Rocchio was hired in October 1966, by John
Osberg, Respondent's parts manager. At that time
Anthony J. Palisano was the owner of the business and he
instructed Osberg to hire Rocchio after being impressed
by the way Rocchio approached Osberg for business while
in the employ of Tutton Electric Co. Rocchio was told
that they were going to teach him the business and make
a parts salesman out of him, a type of work which could
require considerable training before one could qualify as
an experienced parts salesman. Rocchio's duties included
picking up the mail in the morning at the post office,
distributing parts to the mechanics in the service
department and listing them on the repair orders, filling
orders from customers and packaging them for delivery,
mostly on the company truck or by United Parcel
Delivery, receiving deliveries and placing them in stock,
organizing any outgoing generators, starters, or clutches
for shipment, repairing starters on rush orders, and
making deliveries with the company truck on routes
prepared by Osberg. While making deliveries to
customers, Rocchio was instructed by Osberg to solicit
orders on parts in stock in an endeavor to create more
business for the Company. During the course of his
employment, he also made up three or four promotional
sales kits, which were not highly regarded , in an effort to
expand the sale of parts, a prime objective of the
Company. About 2 months after he was hired, he assisted
in taking inventory, but his work was so unsatisfactory
because of errors in arithmetic and mistakes in missing
shelves that he was advised he would not be asked to work
on future inventories.
About the end of January 1967, a new employee, a Mr.
Webb, was hired and Rocchio's duties changed somewhat,
but not substantially, in that he became assistant parts
manager. Webb set up inventory controls and worked at
the sales department counter, relieving Rocchio to the
extent that he was able to devote more time to outside
work, soliciting sales of parts. He called on the
Company's regular customers and also unsuccessfully
solicited business from friends and companies with whom
he previously dealt with on a personal basis, such as
gasoline and tire dealers, automotive repair shops, etc. In
March or April 1967, Rocchio was made parts sales
representative and was furnished with business cards
indicating that title. However, he continued to perform his
usual duties both in and out of the plant. Meanwhile, his
salary, which was $90 a week when hired, was increased
to $100 a week in January 1967, to $105 in January 1968,
and finally to $110 in April 1968. While working he wore
a uniform of blue pants and white shirt with the name
"Ed" inscribed on it.
Palisano sold the business to Dean M. Rockwell during
June 1967, but he remained in charge of the parts
department, services and sales, while Rockwell devoted his
time to developing new sales of Towmotor items.' In
December 1967, Palisano left the Company, and Rockwell
took over his duties. At the end of 1967 at the suggestion
of Towmotor, Rockwell made an analysis and review of
the sales and other departments covering the preceding 6
months, which revealed that the service department had
been losing a considerable amount of money. As a result,
the service and the parts departments were completely
separated. A further analysis for the months of January
and February 1968 was made of the counter-type sales
and sales of parts in connection with service work
performed on customers' equipment, which showed that a
certain amount of money was spent in trying to solicit
business through the parts salesman while better than a
good portion of the business was coming in through the
service shop. Following conversations with each
department head and representatives of Towmotor,
Rockwell decided to train additional people in the service
organization who could be of assistance to the service
department, and to allow the service manager to go out
on the road soliciting business from customers, both old
and new, not specifically for parts but for service and
parts as a package. As a result of the surveys and new
plans, Webb, although a competent worker, was
discharged because he was constantly late and excessively
absent from the job. During February, Rockwell decided
to replace Rocchio with the service manager, Tom Lutz,
who would be helped in or put in charge of soliciting new
business for about 4 hours a day on the outside. In
anticipation of the proposed change, an assistant of Lutz
was sent to the Towmotor school and Lutz was sent to the
Caterpillar school to train and prepare them for the
changeover.
B. The Union Campaign
In March, the Union began organizing Respondent's
employees. During the second week of that month,
Rocchio had supper at a restaurant with Osberg and a
Mr. Peabody, a friend of Osberg and part-owner of an
automotive bin service. In conversation, Osberg
commented that the only _way Rocchio could benefit from
the Union's advent, would be to transfer out of his
(Osberg's) department. Rocchio listened to the
conversation but said nothing.
On April 21, Rocchio heatedly complained to Rockwell
in rather foul language about the condition of the delivery
truck which he drove in the course of his work. The truck,
which was of rather old vintage and had previously
required frequent repairs, had been the subject of several
complaints by Rocchio. Rockwell made no comment but
directed Tom Lutz, the service manager, to inspect and
repair the truck and report back to him. Later that day,
after Lutz had reported to him about the condition of the
truck, Rockwell instructed Osberg to fire Rocchio for
having used intemperate language. Instead of firing
Rocchio, Osberg telephoned him at his home that night
and warned him that Rockwell would not tolerate his use
of profane language. On April 23, he gave Rocchio a
'Respondent was a franchised agent for Towmotor and the only place in
Buffalo and the immediate area in which genuine Towmotor parts were
obtainable
MOTOR SERVICE & SUPPLY OF BUFFALO
warning notice which stated that if he failed to stop using
foul language, he would be subject to termination of his
employment. Thereafter, Osberg noted an improvement in
the language used by Rocchio.
On April 23, the Union filed a petition seeking
certification as the bargaining representative of
Respondent's employees. On May 7, the parties and their
attorneys met at the Board offices to discuss the nature
and composition of the appropriate unit for purposes of
bargaining representation. Respondent objected to the
inclusion of Rocchio in the appropriate unit on the ground
that he was a salesman. Also, in further discussion of
Rocchio, either Rockwell or his attorney, Mr. Diefendorf,
expressed their approval of the manner in which he was
performing his job. On May 9, the parties and their
attorneys again met at the Board offices. Rocchio also
attended this conference and sat with the union
representatives 5 A Stipulation for Certification upon
Consent Election was signed at this conference providing
for the appropriate unit,' and the election was set for May
24. At about that time or somewhat later, Respondent
prepared a list of eligible voters, which did not include
Rocchio's name.
C. The Discharge of Rocchio
On May 21, Leo Croszkowski, a driver for Buffalo Dye
Company, one of Respondent's important customers,
called at Respondent to pick up a part. He appeared in a
rather upset condition because his boss was in a hurry to
obtain the part and he had to make the pickup so late in
the day, close to his quitting time. Upon being asked who
was running the parts department at his Company,
Croszkowski replied that it was Staley,' who didn't know
what he was doing. Rocchio then stated that Staley
couldn't find his way out of a whorehouse.8 After
Croszkowski departed with his pickup, Osberg mulled
over the incident and decided to fire Rocchio. Later that
afternoon he wrote out an order discharging Rocchio, had
the front office make out his checks, and gave them to
Rocchio, who upon asking whether he was being laid off
or fired was told that he was fired. Osberg then prepared
a memo to Rockwell concerning the discharge, listing the
reasons as follows: A continued poor attitude towards
Osberg and his work, his continued but infrequent use of
bad language, his defamation of a customer in the
presence of a witness, and his ignoring the request from
Buffalo Dye to make deliveries to them earlier in the day
thereby straining their relationship.
'Rocchio had also been seen by Rockwell on a prior occasion during the
preceding month at a restaurant in the company of Union representative
Tom Hopkins
"`Including all employees employed at the Employer 's 1109 Niagara
Street operation including all mechanics , maintenance employees , drivers
and parts department employees , Excluding all salesmen, all office clerical
employees and all guards , supervisors and professional employees as
defined in the Act "
"The record reflects that Staley, the foreman at Buffalo Dye, had
previously requested , rather than complained to, Rocchio to make his
delivery of parts earlier in the day to avoid some inconvenience arising
from late afternoon deliveries Although Rocchio advised him to call
Osberg about making such arrangements, Staley waited until he received a
call from Osberg a day or two later on May 21 in connection with some
other matter before conveying his request to Osberg about earlier
deliveries.
'This finding is based upon the testimony of Osberg. Croszkowski
testified that he didn't recall whether Rocchio used any foul language, but
wouldn 't swear to it, and Rocchio did not testify about the incident
D. Conclusions
659
In order to sustain a discriminatory discharge, it is
incumbent on the General Counsel to show by the
preponderance of the evidence that Respondent had
knowledge of or was aware of Rocchio's union activities
or sympathies, and that the discharge was motivated by
antiunionism. As related above, Rocchio was seen by
Rockwell in the company of a union representative at a
restaurant during the Union's organizing campaign and
again at the conference at the Board offices when he sat
with the union representatives while the consent election
agreement was signed. I find that these circumstances
were sufficient to impress upon Rockwell that Rocchio
was a union adherent and sympathizer, if not more. The
proof of antiunion motivation poses a far more difficult
problem. In carefully scrutinizing the record, I find that,
aside from the Board conferences attended by the parties,
the only reference to the Union occurred during the
conversation between Osberg and Peabody while they
were having supper with Rocchio. However, the
conversation was, at most, only a friendly conversation
between friends, and did not in any manner reflect a
feeling or expression of union hostility; nor did Rocchio
participate in the conversation. In fact, the record does
not disclose the slightest trace of hostility towards the
Union.
The General Counsel, however, contends that the
grounds stated by Respondent for the discharge were
specious and pretextual, and when viewed in the light of
the timing of the discharge, an inference arises that it was
motivated by antiunionism. In considering these
contentions, I am not unmindful that Respondent was
unsuccessful in establishing that Rocchio was responsible
for any diminution of sales because no records were kept
to indicate such a result, or that his late afternoon
deliveries to Buffalo Dye prompted a serious complaint
which strained the relationship between it and
Respondent.' However, the objection to Rocchio's use of
profanity appears to be based on a legitimate and
plausible, if not an incontestable, ground for his discharge.
He was warned on April 21, as the result of an incident
involving profanity, that his continued indulgence in such
language subjected him to the risk of discharge. That risk
materialized on May 21, when he again resorted to the
use of objectional language. While it could be argued that
obscene language is commonly used by male employees,
possibly to a greater extent in the type of business
involved herein than in more genteel occupations, yet an
employer can insist upon observance of his own standards,
provided they are not discriminatorily applied. There is a
complete absence of any evidence to prove that
Respondent engaged in discriminatory conduct prior to
Rocchio's discharge, which could have adversely affected
his rights to some extent. The absence of such evidence
suggests that Respondent may have been motivated by
something other than union considerations. Both Osberg
and Rockwell asserted several times in their testimony
that Rocchio did not reflect the image that they desired to
project for the Company, and it is also apparent that
Rocchio's use of foul language affected that image to
'The General Counsel also cites the omission of any reference in
Osberg's memo to the managerial decision to replace Rocchio as
additional support for an inference of union animus . It could be just as
strongly contended that Osberg was voicing only those grounds for firing
Rocchio over which he personally exercised jurisdiction.
660 DECISIONS OF NATIONALLABOR RELATIONS BOARD
some extent . It was suggested that a change in ownership
of the business from Palisano to Rockwell raised ethnic
considerations concerning the image of the Company,
which adversely affected the retention of Rocchio as an
outside man. Realistically viewed and deplorable as it
might be, such considerations in the business world are
not unknown in affecting personnel changes to harmonize
with the building of a new desirable company image.1' In
an attempt to overcome Respondent's expressed or
undisclosed reasons for firing Rocchio, the General
Counsel stresses the timing of the discharge. This
circumstance raises some suspicion concerning the cause
for his discharge , especially in view of the fact that on the
whole his work appeared to be satisfactory ," However, it
is elemental that "Management can discharge for good
cause, or bad cause, or no cause at all . It has, as the
master of its own business affairs, complete freedom with
but one specific , definite qualification It may not
discharge when the real motivating purpose is to do that
which Section 8(a)(3) forbids ." Portable Electric Tools,
Inc v. N.L. R.B., 309 F.2d 423, 426 (C.A. -7).
Furthermore , "When the Board could as reasonably infer
a proper motive as an unlawful one , substantial evidence
has not proved the Respondent to be guilty of an unfair
labor practice ." N.L.R.B v. Fox Manufacturing Co., 238
F.2d 211, 214 (C.A. 5).
Viewing the evidence in its entirety , and even assuming
weaknesses inherent in the grounds attributed for
"Consistent with this suggested change of image , Respondent had Lutz
and another employee take traming courses to prepare them to take over
the outside selling work.
"I find the rationale of N.L R B. v. Great Dane Trailers , Inc., 388 U.S
26, inapplicable to the facts in the instant case. See Ottaway Newspapers,
169 NLRB No 156, fn 8.
Rocchio's discharge and its suspicious timing, I find and
conclude that the General Counsel failed to establish by
the preponderance of the evidence that Rocchio's
discharge was motivated by union animus. I, accordingly,
shall recommend that the complaint herein be dismissed in
its entirety.
IV. THE CHALLENGED BALLOT OF ROCCHIO, CASE
3-RC-4416
In view of my finding that Rocchio was discharged
prior to the election for nondiscriminatory reasons, it
became unnecessary to determine whether or not he
should have been included in the appropriate unit. His
discharge per se rendered him ineligible to vote, and,
accordingly , I recommend that his ballot be discarded.
Upon the foregoing findings of fact and upon the entire
record in Case 3-CA-3513, I make the following:
CONCLUSIONS OF LAW
1. At all times material herein , Respondent has been
engaged in commerce as an employer within the meaning
of Section 2(6) and (7) of the Act.
2. At all times material herein, the Union has been a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the complaint in Case 3-CA-3513 be
dismissed in its entirety.