Ozark Mack Trucks, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1974

212 N.L.R.B. 755 (N.L.R.B. 1974)

OZARK MACK TRUCKS, INC. 755
Ozark Mack Trucks , Inc. and General Drivers , Sales-
drivers, Warehousemen and Helpers , Local Union
245, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers
of America . Cases 17-CA-5776 and 17-RC-7307
August 6, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKiNS, AND PENELLO
On April 9, 1974, Adminstrative Law Judge Phil
Saunders issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
motion to correct certain inadvertent errors appearing
in the Administrative Law Judge's Decision.'
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
vers, Warehousemen and Helpers, Local Union 245, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, herein the
Union, a consolidated complaint against Ozark Mack
Truck, Inc., herein the Company or Respondent, was issued
on November 19 alleging violations of Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended. Re-
spondent filed an answer to the complaint denying it had
engaged in the alleged unfair labor practices. A hearing in
this proceeding was held before me, and both the General
Counsel and Respondent filed briefs.
Upon the entire record in this case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing.2
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Respondent is a corporation engaged in the retail
sale and service of automotive trucks and trailers from its
principal place of business located at Springfield, Missouri,
and in the course and conduct of its business operations
from this location the Respondent's gross volume of busi-
ness exceeds $50,000 per annum. In the course and conduct
of its business operations at its principal place of business
at Springfield, Missouri, the Respondent annually purchas-
es goods and materials having a value in excess of $50,000
directly from firms or enterprises located outside the State
of Missouri.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order of the Administrative
Law Judge and hereby orders that Respondent, Ozark
Mack Trucks, Inc., Springfield, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
IT IS FURTHER ORDERED that the Regional Director
for Region 17 open and count the challenged ballots
of Robert Collier, Jack Huffman, and James Poyner
and issue the appropriate certification.
' The requested corrections are fully supported by the record evidence.
therefore , we shall grant the General Counsel ' s motion and correct the Ad-
ministrative Law Judge 's Decision accordingly - in the first sentence of sec
111, change "$50,000" to '3500,000", in the last sentence of sec 111, par 1,
change "Walter" to "Robert"; in sec Ill, par 15 , change the phrase "the
truck engine still did pull as it should " to "the truck engine still did not pull
as it should "
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Judge. Based on a charge
filed on September 28, 1973,' by, General Drivers, Salesdri-
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on various dates in September
the Respondent's president, Walter Gilomen, interrogated
employees, solicited grievances, promised benefits, created
the impression of surveillance, and threatened employees
with discharge and loss of existing benefits because of their
activity on behalf of the Union. It is further alleged that on
September 24 the Respondent unlawfully discharged Wal-
ter T. Collier, Jack D. Huffman, and James D. Poyner.
As part of its business operations the Respondent main-
tains a service and parts department employing mechanics
and other people, and this case evolves out of effort by the
Union to organize the Respondent's employees in these
departments.
The Respondent came into existence and started its busi-
ness operations in March, 1971, and the business covers the
1 All dates are 1973, unless specifically stated otherwise
2 All credibility resolutions made herein are based on a composite evalua-
tion of the demeanor of the witnesses and the probabilities of the evidence
as a whole
212 NLRB No. 116
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complete spectrum of a truck dealership operations. It ap-
pears that when President Gilomen initially established this
business and first acquired his personnel, he relied for the
most-part on local people who had worked for a previous
Mack Truck dealer. Both Jack Huffman and Jim Poyner
were hired in April, 1971, and Bob Collier was hired in
February, 1972.
Gilomen stated that his goal when beginning this business
was an attempt to get the best qualified mechanics he could
find, and in order to do so paid a premium wage. It appears
that Gilomen had many years of experience with truck sales,
but only had occasional contacts with the service end of the
business and for these operations had to rely almost entirely
on his service manager-who ever that might be.
The business operations of the Respondent is divided into
three basic departments: (1) sales department; (2) service
department with a parts facility; and (3) an office personnel
department. Gilomen is in charge of sales, a service manag-
er is in charge of the servicing shop and the mechanics, and
an office manager is in charge of bookkeeping and office
personnel. It appears that the service manager was delegat-
ed considerable authority in the operation of the service
department due to Gilomen's limited background and expe-
rience in this area, and Gilomen said that he relied on the
judgment of the service manager as to how this department
should be operated.
Gilomen explained that the service department in any
new venture of this kind is initially expected to lose money,
but he said eventually the service department should pay the
overhead of the business, and when this department is func-
tioning properly it should operate at a rate of absorption of
at least 100 percent. The term "absorption" refers to the
amount of overhead that the service department absorbs
through its operation. Gilomen testified that even in the
second year of his operations the service department could
not carry the overhead, but he was able to continue in
business due to increased sales, and said that these same
circumstances and patterns continued during most of 1973
up until the expected fuel shortages reduced his sales.
Gilomen testified that in efforts to bolster his service
department in 1972, he had talks with his service managers,
and also held shop meetings with his mechanics on various
occasions in an attempt to find out what was wrong. It
appears that Service Manager Charles Esteps quit in June,
1972, and Gilomen then employed two or three interim
managers before hiring George Hilditch-who was service
manager during 1973 and up to the time of the three dis-
charges here in question .3 There were also certain other
background developments in 1973 which should be men-
tioned. A new building facility was completed, and in
March all operations were moved to this new location. Also
in March, Orville Langford was hired as office manager.
Langford stated that when he took over the books they were
in a "deplorable condition," that no monthly reports had
been closed since December, 1972, and that Gilomen did
not receive any 1973 reports on the service department until
mid-March.
The service department keeps track of the amount of
3 Hilditch did not testify in the trial before me.
hours to be billed to a particular customer through a time
ticket system whereby the individual mechanics themselves
would note the amount of the time they worked on each job,
and then this information is attached'to the actual invoice
so a total billing could be prepared for each customer at the
end of the repair job. The Respondent maintains that under
this "old ticket" system only an employee's total time could
be ascertained on a particular job, and there was inadequate
space for any further breakdowns and it was impossible to
pinpoint whether or not any one mechanic was at fault for
low productivity on a particular job, or whether he might be
responsible for some possible defective workmanship. Gilo-
men testified that on the recommendation of Service Man-
ager Hilditch he ordered new time tickets in June or July,
but they were not delivered or used until late August. Re-
spondent maintains these new tickets provided additional
space so mechanics could write in their particular job func-
tion or operation which he performed, and permitted super-
visors to see exactly the work of each employee and the
individual amount of time involved on each job.
Gilomen said that in the summer of 1973, based on the
continual problems he was still having with the service de-
partment and mounting customer complaints, he finally de-
cided to devote more of his time to this department and in
July and August did so.
It appears from this record that Joe Busseel had been a
customer of the Company ever since 1971 and purchased
three trucks from Gilomen, but in 1972 started complaining
about being overcharged for labor on some of his repair
work, and in 1973 his overcharges were further aggravated.
Busseel said that in the first half of 1973 he paid Respondent
approximately $6,000 worth of personal service business not
counting accident business paid for by insurance.
It appears that Busseel had one accident in April 1973,
and other than $500 deductible, the damage was paid for by
insurance, but nevertheless, Busseel complained to Gilomen
about the repairs. Busseel testified that the truck involved
was in the Respondent's shop for 60 days and during this
period he visited the shop several times and in so doing
observed certain employees "not doing much of anything"
on his truck while they were waiting for parts, and he con-
cluded there was a great amount of wasted time that should
have been spent working on other jobs. He specifically iden-
tified dischargees Huffman and Poyner as those employees
wasting time.
In July, 1973, Busseel had a second accident and the truck
involved was in the Respondent's shop until the last of
August. Busseel stated that this truck was also covered by
insurance, but during the repairs he again visited the service
department and on one occasion noticed "there wasn't any-
thing going on" and that Poyner and Huffman were "on the
clock" while waiting for parts to arrive. Busseel concluded
that if the charges on these "insurance jobs" were any indi-
cations, the Respondent was also overcharging him on the
rest of his repairs not covered by insurance, and he then told
Gilomen he could not afford such charges and would not
be back. Busseel said that he was also upset by the fact that
he often had to return to Respondent's shop because the
trucks were not fixed right. Gilomen testified that his main
concern on one of the jobs for Busseel was that he lost
money on it because it took a total of about 350 hours to
OZARK MACK TRUCKS, INC.
make the repairs , and it was bid on for 220 hours . Gilomen
said he was also faced with losing a very good customer.
D. L. Barber brought his truck to the Respondent's shop
on April 20 for a repair job , and this truck was apparently
returned some 11 times in an attempt to correct the "jerk-
ing" problem . Barber testified that he also lost the use of the
truck for approximately 6 weeks which cost him $150 to
$200 per day in loss income . Barber stated that even after
all of the efforts and expense to correct the problem , he then
had to "retire" the truck, and it could be used only for light
hauling duty . since its original problem was never corrected.
Barber also had discussions with Gilomen after receiving his
bill, and in late June it was agreed that a $980 . 11 credit
would be given Barber on a total repair bill of just under
$3,000.
Gilomen said that Poyner was the leadman on the Barber
truck , and put in approximately 95 hours on this job. It
appears that the night crew put in some 16 hours and that
the total time on the job comes to 185 hours.
There were two service jobs in progress during September
which also bear directly on this case . These jobs were the
rebuilding of an injection pump for Erickson Transport,
and repairing a truck for Larry Holmes which was a major
engine job . The Erickson pump job came into the shop in
late August , and Collier was the prime employee on this job.
Collier acknowledged that when he first received the pump
it had "hardly" any miles on it, and that the customer mere-
ly wanted the pump "checked out" before putting it on a
new engine. It appears that after Collier's initial work with
the pump in early September it was returned to the customer
but a few days later Collier was instructed to go over to
Enckson 's shop in an attempt to correct the pump's mal-
functioning . Collier acknowledged that the timing phase
was wrong at the time and that the pump was then removed
and brought back to the Respondent 's shop . He admits a
mistake on his part in this second repairing operation by not
calibrating the pump . Later on Collier ran several calibra-
tions and replaced barrels and plungers , and stated that the
pump then appeared to be functioning properly so he in-
stalled it , but was told that the truck engine still did pull as
it should . In all Collier worked on this pump four different
times, but finally it had to be "retired" to the stock shelf and
could not be used on the Erickson truck. Gilomen testified
that this job entered into his decision to discharge Collier as
he faced a monetary loss and also the possible loss of a
customer . Gilomen said that he was unable to bill the cus-
tomer and that there was about 53 hours on the job or $636,
and he had to absorb the entire amount.
Gilomen further testified that injection pumps could be
exchanged with a St. Louis firm at an exchange cost of $285
and that a large investment was made by the Company in
fitting an injection pump room with equipment so that
pumps could be rebuilt on the premises , and he also said
that Collier had been sent to a special school in the spring
of 1973 in an attempt to learn more about pumps . Gilomen
than specifically mentioned three other injection pump re-
build jobs which all involved Collier-one performed on
May 5, another on June 18, and a third one on July 9 .4
Resp . Exh 4 , 5, and 6
757
Gilomen stated that Collier was aware of his objective to
stay within the $285 exchange cost , but on the three jobs just
mentioned there was a $1,194.62 customer cost on one
(Resp . Exh. 4), a cost of some $515 to the Company on
another (Resp. Exh. 5 ), and a further cost of some $525 to
the Company on the remaining job (Resp . Exh. 6). Gilomen
testified that these jobs and documentations of the costs
also influenced him in his ultimate decision to discharge
Collier.
The Holmes job was initially brought into the service
department on August 28, and Gilomen had stated that it
would take approximately 2 weeks to repair the damage
done to this truck . It appears that Larry Holmes had been
a customer of the Company for approximately 8 months
and other members of his family also used Mack equipment.
The damage to the truck in question was caused by a piston
blowing through the side of the motor , and which required
the installation of an entirely new engine Holmes stated it
was very important for him to get his truck back as soon as
possible in that he was hauling farm produce and was, at
that time , bringing in about $400 per day with it , and be-
cause of these circumstances he made visits to the shop and
periodically check on the progress of the job, and immedi-
ately noted the progress was very slow . Holmes testified that
as a result of the slow work on his truck he actually began
timing Huffman and Poyner who were working on it.
Holmes stated that in timing Huffman it was noted that he
worked only about 35 minutes out of an hour , and in timing
Poyner it was observed that he was off on other jobs so often
it was even difficult to get a timing on how much time he
spent on the Holmes truck . Holmes said he then realized he
was paying the total labor costs for these mechanics, but
they were really not working on his truck all the time.
The Holmes job was completed 1 week late, and he got
the truck on September 18. Holmes said that during this
one-week delay the market for his product began falling and
he realized he was going to take a loss. Holmes also testified
that the truck itself had not been repaired correctly, and it
gave him enough problems so within a few days he had to
bring it back to the service department for additional work.
The Company finally gave Holmes a credit for about $900
on his repair bill.
Gilomen testified that he investigated the delays in the
Holmes job and with the new time tickets, now used for the
first time , he could see there was excessive time building up
on the job and that his original estimate would not cover the
labor outlay being made . He also stated that his final analy-
sis showed that approximately 96 labor hours were spent on
the job while only 63 hours had been bid on it , and that the
employees who spent the most time on the Holmes' job were
Huffman and Poyner.
The Union initiated its organizational campaign among
Respondent 's employees during the latter part of August,
and on August 31 a meeting was held and authorization
cards were obtained from several employees including
Huffman, Collier, and Poyner. On September 4 the Union
sent a letter to the Respondent demanding recognition and
which was subsequently received by the Respondent on or
about September 6. On September 5 the representation peti-
tion in Case 17-RC-7307 was filed by the Union and which
culminated in a Board conducted election on September 27
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to an election agreement executed by Respondent
and the Union. The ballots of the three alleged discrimina-
tees herein and one other were challenged by the Company
on the basis that they had been lawfully terminated and
therefore could not vote.5
Following the receipt of the Union's demand letter, and
the letter from the Regional Office stating that a petition for
election had been filed and that notice must be posted,
which was done, Gilomen contacted his attorney and also
one of his competitors-Cummings Diesel-whose employ-
ees were covered by a bargaining agreement with the Team-
sters. Gilomen said that Cummings gave him a breakdown
of their labor rates, wage 'schedules, classifications, and
other information, and that he then contacted the Board's
Regional Office in Kansas City and discussed his situation
with an agent there.
On the morning of September 7, Gilomen had a meeting
with his day shift employees including the three alleged
discriminatees herein. Gilomen told those present that he
had received a letter from the Union advising him a majori-
ty of the employees wanted "to go union," and he then
asked the assembled employees if this was true. In response
Gilomen got "the yeas and nays from both ends of the
room," but testified that the "noise" for the Union was off
in the "right hand side of the room" and that was where
Collier, Huffman, and Poyner were seated. Gilomen told
the employees that he had compared their salary scale with
the wages paid at Cummings, his competitor who had a
bargaining agreement, as forestated, and if the Respondent
agreed on a contract some of his mechanics would take a
"reduction" or "cut" in pay. During this meeting Gilomen
also inquired as to why the employees wanted a union, and
this was followed by a discussion about retirement and
insurance programs and various other working conditions
and complaints.
The Respondent argues that this encounter with the
Union was Gilomen's first experience with any organizing
campaign and, therefore, he sought the advice of others, as
previously noted herein, and then followed it. The Respon-
dent also relies on a statement by Gilomen during the meet-
ing on September 7 to the effect that "he was not against
the Union."
It is well established Board and court law that in de-
termining whether an employer's conduct amounts to inter-
ference, restraint, or coercion within the meaning of Section
8(a)(1), the test is not the employer' s intent or motive, but
whether the conduct is reasonably calculated or tends to
interfere with the free exercise of the rights guaranteed by,
the Act. It is further well recognized that the illegality of
such inquiries and remarks are not cured by the casual
nature of the conversation or the personal relationship of
the parties thereto, nor by the employee rejection of such
questions or statements.
The foregoing statements that have attributed to the Re-
5 At the time of the election there were I I eligible voters-3 cast ballots
for the Union, 3 cast ballots against , and 4 ballots were challenged The
challenged ballots, of course, are sufficient in number to effect the results of
the election The fourth challenged ballot was that of Newton Gibson, but
upon investigation it was determined by the Board's Regional Office that
there was insufficient evidence to sustain an allegation that Gibson was
discruninatonly discharged
spondent include instances of interrogations as to whether
the Union represented a majority,6 why the employees
wanted a union, and a threat of reduction or cut in wages
if the Union was successful: All of which, under these condi-
tions, reasonable probability, purposes, setting, and se-
quence of events here, have the effect of interfering and
restraining the employees and constitute violations of Sec-
tion 8(a)(1) of the Act.
On September 19 discriminatees Collier, Huffman, and
Poyner were notified by George Hilditch, Respondent's ser-
vice manager, that Gilomen wanted to meet with them.
Gilomen began his conversation by accusing Collier of de-
liberately "sabotaging" or "screwing up" the fuel injection
pump on the Erickson job, as aforestated, and also informed
him that he believed Collier had deliberately engaged in
such conduct because of "this damn union thing." Gilomen
then accused Huffman and Poyner of spending too many
hours on Larry Holmes' truck on which they had recently
worked, as previously indicated herein. Later on in this
meeting of September 19 according to the credited testimo-
ny of Collier and substantially corroborated by the testimo-
ny bf 'Huffman and Poyner, Gilomen made the following
statement to them: "You guys know that if you go union
that you are going to get a cut in wages. I am not paying
over scale and paying for all those damn fringe benefits.
Sometimes I just get so damn disgusted up here that I am
thinking of clean sweeping the place and hiring all new
guys." 7 The foregoing statements credibly attributed to Gi-
lomen again threatened a reduction in wages or economic
reprisals, and also contained a clear threat of discharge
because of union activities, and I so find.'
Gilomen testified that on September 21 he called a mana-
gerial meeting with Service Manager Hilditch and Office
Manager Lanford, and the meeting specifically concerned
Huffman, Collier, and Poyner. Gilomen said he questioned
Hilditch as to the accuracy of the job records accumulated,
and was told they reflected a true picture. As to the meeting
on September 21, Office Manager Langford testified, in
part, as follows:
Q. Was there any reason discussed at the Friday
meeting why they were tentatively scheduled for dis-
charge?
A. Yes. It was a very hard decision to be made. I
personally have been in the position of management
for years. I hate to ever let anyone go. I think all of us
hated the idea that the action had to be taken.
Q. And what was the reason?
A. The reason for discharge?
6 The Board in Struksnes Construction Co, Inc, 165 NLRB 1062 (1967),
held "Absent unusual circumstances, the polling of employees will be viola-
tive of Section 8(a)(1) of the Act unless the following safeguards are ob-
served (1) the purpose of the poll is to determine the truth of a union's claim
of majority, (2) this purpose is communicated to the employees, (3) assur-
ances against reprisal are given, (4) the employees are polled by secret ballot,
and (5) the employer has not engaged in unfair labor practices or otherwise
created a coercive atmosphere."
' Gilomen said that this was the first opportunity he had to use the infor-
mation collected by the new time tickets as the Holmesjob had been tabulat-
ed, and he wanted to find out if there were any "sensible answers" for the
delays Gilomen adnutted a remark to Collier about being too busy "worrying
about the union" to do his job properly on the Erickson pump.
OZARK MACK TRUCKS, INC. 759
Q. That is right.
A. It was simply a matter of keeping the front doors
of the business open and keeping the customers we had
and try and get new ones. We were getting a very bad
reputation servicewise.
Q. Was there any other reason discussed?
A. No, Sir, no other reason came up . It was solely
a business proposition.
Gilomen acknowledged that he was still uncertain as to
exactly what could be done since he was in the middle of
an organizational campaign, and due to the fact that an
election had been scheduled on September 27. Gilomen
testified that based on this concern he again conferred with
his corporate counsel, and also conferred with an agent of
the Board's Regional Office. Gilomen said it was then de-
cided to let the alleged discriminatees go, but over the week-
end he let the matter stand.'
Gilomen testified that on Monday, September 24, he re-
ceived reports from the shop that Collier was "walking
around in circles" instead of working and that Larry
Holmes was on his way back with his truck for more repairs,
and with these additional factors he finally decided to dis-
charge the three and that Hilditch and Langford agreed
with him. The alleged discriminatees were told that they
were costing the Company too much money and in these
respects the Erickson, Barber and Holmesjobs were specifi-
cally mentioned.
The Respondent maintains that it is also significant to be
aware of the changes which have taken place in the service
department since September 24, and at the hearing present-
ed certain evidence in respect thereto. There was testimony
that Larry Holmes did bring his truck back after it had been
initially repaired, and on at least one occasion after the
discharges of Huffman, Collier, and Poyner so that a new
mechanic worked on the truck. Holmes said he was then
well satisfied and the truck performed as it should. D. L.
Barber also said that he experienced good results after Sep-
tember 24. Paul Baum, a mechanic and union supporter,
testified that since the discharge of the discriminatees the
service department had one of its best months in October,
and said that the shop was putting out a lot of work and with
not too much coming back. The record contains a few other
instances of work done prior to the discharges and suppos-
edly similar work subsequent to the discharges, but the lat-
ter all showing a reduced number of hours to make the
repairs.
Following the three discharges here in question, Gilomen
8 In addition to specific repair jobs already noted herein-Gilomen also
mentioned several other jobs involving the discriminatees and on which he
relied in reaching his decision to discharge them One such job was per-
formed by James Obenshais in early May, and Huffman and Collier account-
ed for 112 of the 130 total hours Gilomen said he had to absorb a loss of
some 58 hours. Gilomen testified he also got the results of a job involving
a truck belonging to Wades Poultry which was almost completed by Septem-
ber 24, and stated this work was done by Paul Baum and was the first engine
overhaul he could remember where the Company made a profit He said that
usually such major jobs had been given to Collier or Huffman Gilomen also
mentioned the repair work in February to Bill Monsel's tractor and that he
had to absorb $800 loss on it He said Huffman had some 94 hours of this
job and Collier about I I hours
called a meeting of employees on September 26, the day
preceding the Board's election in the representation case.
Paul Baum testified that during the course of this meeting
Gilomen informed employees that he was consulting outsid-
ers about a pension plan the employees had expressed an
interest in at the September 7 meeting, and that Gilomen
also again informed his employees that the Teamster con-
tract with Cummings was paying less wages to their me-
chanics than he was paying. After the meeting of September
26 was concluded, Baum then initiated an individual con-
versation with Gilomen concerning the Respondent's rea-
sons for discharging Collier, Huffman, and Poyner. Baum
stated that during the course of their conversation Gilomen
told him he believed that Collier had been the instigator of
the Union's organizational effort and Gilomen's reasoning
in this respect was based upon his assertion that Collier had
tried to get his secretary, Anita Brownfield, to join the
Union.9 Gilomen then showed Baum certain time tickets
and records supposedly revealing the excessive length of
time it had taken the alleged discriminatees on their repair
jobs
A few mechanics in the shop also related their first-hand
experiences and knowledge of the working habits of the
three dischargees. Paul Baum stated that he had worked
directly with Collier on a head gasket job and in which
Collier's failure to follow his advice resulted in wasted labor
time. Collier, however, was senior to Baum. Charles Jarrett,
a mechanic and working foreman in the service department
related in his testimony the uncooperative attitude ex-
pressed by Huffman, Collier, and Poyner with regard to his,
Jarrett's, assertion of authority. According to Jarrett, Huff-
man moved at his own pace, Collier took his own time, and
Poyner would continually "ride the clock" after he had
finished a job in an attempt to avoid being reassigned to a
new one.10
Final Conclusions
As pointed out, the Respondent has assigned economics
as its reason for the discharge of the three discriminatees
herein, namely that they were spending entirely too much
time on various customer repair jobs, and with a resultant
loss of business. However, I find these reasons to be pretex-
tual and that the real motivating cause for the discharges
were union activities.
In the instant case there is abundant evidence, including
admissions by Respondent, that it was aware of the three
discriminatees' union activities and their support for the
Union, nor has Respondent specifically asserted a contrary
claim. As indicated earlier herein evidence of knowledge
concerning the discriminatees' activities was initially gained
as a result of the Respondent's unlawful interrogation of its
employees, and 5 days before their discharges Gilomen
again specifically mentioned and noted their union activity
9 Collier acknowledged that he had spoken to Gilomen's secretary con-
cerning the Union
is In September Gilomen had classified Huffman and Collier as "A" me-
chanics on certain documents sent to the Board See G C Exh 3 and 4
Gilomen knew that an A mechanic was a first line journeyman who did not
require supervision or help, but testified he had received such information
from Cummings and was merely passing it along
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he met with the three discriminatees on September
19.11
There is a good deal of testimony in the record bearing
on the constant and continual difficulties with the service
department ever since its inception, and statements by Gilo-
men that for a long time the department had needed and
required his attention. However, a close examination of this
record reveals that it was not until the advent of the Union
before Gilomen actually got seriously involved with the
service department.
Gilomen was asked why the excessive delays and other
complaints against the three discriminatees did not raise
doubts at an earlier time. In response to this question Gilo-
men claimed that it was not until the Respondent initiated
the use of new time tickets in late August that he was able
to determine the three discriminatees were the cause of the
service department's problems.
A comparison of Respondent's new time tickets (Resp.
Exh. 9), with the old time tickets (Resp. Exh. 8), reveals that
the only material difference is that the new forms allow
additional space for the individual mechanic to specify
more exactly what work he has performed on a particular
job, and possibly the new tickets would also enable manage-
ment to trace more accurately which mechanic on a given
job was responsible for faulty workmanship or unnecessary
delays. However, the General Counsel further points out
that the old time tickets provided all the necessary informa-
tion, and his valued argument in this respect is as follows:
"The Respondent's old time ticket forms recorded the
amount of time spent by each man in the same manner as
the new forms. And one, at a glance, as Gilomen so aptly
demonstrated on the witness stand, may examine the old
tickets and achieve a fairly reliable estimate as to just exact-
ly who worked on a particular job and the approximate
number of hours. This is only reinforced by Gilomen's testi-
mony that he had to be familiar with the amount of time
spent on individual jobs in order to resolve or settle custom-
er accounts where cost to the customer was at issue. Fur-
thermore, Gilomen acknowledged that one could always
have questioned the mechanic working on a particularjob
concerning his work, even under the old time ticket system.
This belies Respondent's contention that the new tickets
were needed to evaluate an employee's performance."
Robert Collier was employed by the Company in early
1972, and worked under five service managers and on one
occasion was even asked by Gilomen if he wanted to be the
service manager. Collier specialized in pump services and
repairs, and apparently had no worked returned to him until
the Erickson pump job and up until the advent of the Union
no one in management had been critical of his work. The
Company also designed a special pump room at consider-
able expense for Collier to work in, and in the spring of 1973
he was sent to a special school at Company expense for
additional training. These factors and circumstances show
that Gilomen and the various service managers had consid-
erable confidence in his ability, and it seems highly unlikely
to me that his work would suddenly deteriorate so rapidly
as to warrant his termination. Collier's discharge during the
11 Gilomen admitted that when he left the meeting on September 7, he
knew that Collier, Huffman, and Poyner were for the Union.
late afternoon on September 24 also came as a surprise to
him since earlier in the day Gilomen had talked to him
about going to a tractor branch in St. Louis and working
with them in their pump room.
Collier readily admitted that the Erickson pump job
"bugged" him, and that he even called the special school he
had attended to make inquiries, but was never able to get
a definite answer. While Collier may have spent too many
hours working on the Erickson pump job, he was continual-
ly instructed by Hilditch to do so, and it is also noted that
following his discharge Collier went to work for Erickson
Transport Co., the owner of the pump here in question.12
While the Company introduced exhibits concerning
Collier's performance on three other pump jobs during the
summer of 1973, as detailed earlier herein, they were all
done during a time span which shortly followed Collier's
return from a training school course sponsored by the man-
ufacturer of the pump, and before this hearing these particu-
lar jobs had never been mentioned. With respect to the
Barber job, mentioned to Collier when he was discharged,
it is clear from the record that this job did not involve more
than a few hours' work by Collier and can have no real
bearing on his discharge.
Jim Poyner was hired by Gilomen in April, 1971, and
worked continually thereafter for the Company. When he
was discharged on September 24, Gilomen asked him if he
remembered the job on the Holmes and Barber trucks, and
told Poyner that on the latter job he had improperly in-
stalled the rear end. Poyner immediately explained to Gilo-
men that he was not responsible for the rear-end work on
the Barber truck since the night crew had made this particu-
lar installation and that he had only put in the front rear
end.13 In his testimony D. L. Barber corroborated the fact
that the night crew had installed the rear-rear end on his
truck, and said that other mechanics in addition to Poyner
had also worked on his truck.
There is no question that the service department, and
Poyner in particular as leadman, experienced considerable
problems in attempts to repair the Barber truck and that a
final adjustment of some $980 had to be made. However,
during the interval spent on the Barber truck-from April
20 to about the first of June (6 weeks), and considerably
before the advent of union activities-no one in manage-
ment was in any way critical of Poyner's work. It is further
noted that the Barber truck here in question was about 11
years old and probably had a million miles on it, and that
on frequent occasions when the truck had to be returned to
the shop, as aforestated, Barber often discussed the prob-
lems with Service Manager Hilditch. Poyner spent only
about 15 hours on the Holmes truck and considering the
extensive repairs this amount of time can hardly be deemed
excessive.
Jack Huffman was hired in 1971 and usually was assigned
major motor repair jobs. On one occasion Huffman was
rehired by Gilomen. Gilomen testified that he talked to
Huffman many times about his excessive hours and that he
12 On the day following the occasion when Gilomen had accused Collier
of "sabotaging" the Erickson pump-Collier was advised by Service Manag-
er Hilditch that he did not believe Collier's conduct had in any way been
deliberate.
13 This truck has a "rear-rear end" and a "rear end."
OZARK MACK TRUCKS, INC.
had also mentioned the Busseel job to him. Huffman stated
that at the meeting with the three discriminatees on Septem-
ber 19, Gilomen specifically brought up the Holmes job, but
he then explained to Gilomen why he had spent about 80
hours on this job. Huffman told Gilomen that he first had
to line up the bearings with a very close tolerance, that he
had to put on a heavier pump drive which required pulling
the front off the engine, that he had to put on a "ESI kit"
and to do this he had to build another engine stand, that he
had to install new brake lines, and said that there were many
other things he had to do in installing the new engine. He
then explained to Gilomen that he also had to carpet and
air condition the cab of the Holmes truck, and the air-
conditioner had to be completely overhauled before it could
be installed and since the air-conditioner was not designed
for this particular type of truck, special cuttings and fittings
had to be made. A careful review of this record in relation
to Huffman's efforts to repair the Holmes truck, as high-
lighted above, hardly substantiates any finding or conclu-
sion that Huffman spent excessive time on the job, and
during the actual repair period no one in management said
anything critical to Huffman about his efforts or worktime
There is no credited testimony in this record that Gilo-
men ever complained to Huffman about any excessive time
on the Busseel jobs. From time to time Busseel had a lot of
work done, as detailed earlier herein, but most of the serv-
ices provided by the shop in 1973 were extensive and major
repair jobs covered by insurance and running into several
thousands of dollars, and of course, there is always the
possibility that Gilomen's losses on these jobs resulted from
faulty bidding on the number of hours required to make the
repairs, rather than on the time wasted by his mechanics.
In the final analysis, it is quite obvious that Respondent
was well aware of the work habits of the three discrimina-
tees long before the discharges herein. Moreover, if
Respondent's business was as financially precarious as indi-
cated during the months preceding the discharges, it is high-
ly unlikely Gilomen would have tolerated such a condition
for so long a period of time. With the construction of a new
building in 1973, the payment of premium wages, and num-
erous other expenditures mentioned herein, this record
strongly suggests that Respondent's financial condition was
not as precarious as indicated, nor is it likely that the situa-
tion in the service department suddenly became so intolera-
ble that Respondent found it necessary to fire three of its
most experienced employees and particularly when skilled
mechanics are very hard to find, as specifically noted by
Gilomen.
One other facet of this case should also be noted. To fully
accept the Respondent's defenses for the discharges, I
would have to conclude that similar reasons for these sud-
den terminations simultaneously existed for all three of
these long-time employees, because, in essence, the Respon-
dent is saying that they all goofed and at practically the
same time. I would also have to conclude that the sudden
and abrupt terminations of all three, without any warnings
or criticisms prior to September 29, had nothing to do with
their open support for the Union even though the Board
election was just around the corner, and 5 days before the
discharges Gilomen had let it be known in his meeting with
the discriminatees that he was thinking of hiring "all new
761
guys." On the basis of this record and on the demeanor of
the witnesses who appeared before me, I am not prepared
to make such a conclusion, and accordin ly have found
discriminatory discharges in all instances.'
IV THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. A broad cease
and desist order is warranted in view of Respondent's dis-
criminatory conduct and other violations.
It has been found that Respondent unlawfully discharged
Robert Collier, Jack Huffman, and James Poyner on Sep-
tember 24, 1973. It will therefore be recommended that
Respondent offer them immediate and full reinstatement to
their former positions, or if such positions no longer exists
to a substantially equivalent position and without prejudice
to their seniority or other rights and privileges, and to make
them whole for any loss of earnings they may have suffered
as a result of the discrimination against them, by payment
of a sum equal to that which they would normally have
earned, absent the discrimination, from the date of the dis-
crimination to the date of Respondent's offer of reinstate-
ment, with backpay and interest computed in accordance
with the Board's established standards.15 It will be further
recommended that Respondent preserve and make avail-
able to the Board, upon request, all payroll records, social
security payment records, timecards, personnel records and
reports and all other records necessary and useful to de-
termine the amount of backpay and the right to reinstate-
ment under the terms of these recommendations.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Robert Collier, Jack Huffman, and
James Poyner on September 24, 1973, thereby discouraging
membership in the Union, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing their em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices wtihin the meaning of Section
14 I attach little significance to any events that may have taken place in the
service department subsequent to these three discharges It could be argued
that Larry Holmes may well have experienced satisfactory results after a new
mechanic worked on his truck because Huffman and Poyner did a good job
to start with Furthermore, there is actually no established standards on
which to make comparisons between different jobs because of so many
unknown factors, and even thought initially they may have had some basic
similarities
15 F W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co,
138 NLRB 716 (1962)
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 16
The Respondent, Ozark Mack Trucks, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating or polling its employees,
and making inquiries as to their reasons for wanting the
Union.
(b) Threatening reduction in wages.
(c) Threatening discharges because of union activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations,
including the above-named organization, to bargain collec-
tively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Offer to Robert Collier, Jack Huffman, and James
Poyner immediate and full reinstatement to their former
jobs or, if such jobs no longer exists, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the discrimi-
nation against them in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records, and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its place of business in Springfield, Missouri,
copies of the attached notice marked "Appendix." 17 Copies
of said notice, on forms provided by the Regional Director
for Region 17, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places, where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
16 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 findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
17 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act not specifi-
cally found herein.
IT IS FURTHER RECOMMENDED that the ballots of Collier,
Huffman, and Poyner be opened and counted, and if the
revised tally of ballots in Case 17-RC-7307 shows that the
Union has received a majority of valid ballots cast, a Certifi-
cation of Representation shall issue.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate or poll our employ-
ees nor make inquiries as to their reasons for wanting
the Union.
WE WILL NOT threaten our employees with economic
reprisals or reduction in their wages because of union
activities.
WE WILL NOT threaten our employees with discharges
because of activities for the Union.
WE WILL NOT discharge or otherwise discriminate in
regard to the hire and tenure of employment or any
term or condition of employment of our employees
because of their membership in and activities on behalf
of the Union herein or of any other labor organization
of their choice.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization, to form, join or assist labor organiza-
tions, including the Union herein, to bargain collec-
tively through a bargaining agent chosen by our
employees, to engage in concerted activities for the
purposes of collective bargaining or other mutual aid
or protection, or to refrain from any such activities.
WE WILL OFFER to Robert Collier, Jack Huffman, and
James Poyner their former jobs, or if such jobs no
longer exists, tQ substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and WE WILL pay them for any loss of pay
they may have suffered by reason of our discrimination
against them together with interest thereon.
OZARK MACK TRUCKS, INC
(Employer)
Dated By
(Representative) (Title)
OZARK MACK TRUCKS, INC. 763
This is an official notice and must not be defaced by or covered by any other material . Any questions concerning
anyone . this notice or compliance with its provisions may be direct-
This notice must remain posted for 60 consecutive days ed to the Board 's Office . 616-Two Gateway Center, Fourth
from the date of posting and must not be altered , defaced, at State , Kansas City, Kansas 66101, Telephone 816-374-
4518.