Wisconsin Motor Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1968

171 N.L.R.B. 1431 (N.L.R.B. 1968)

WISCONSIN MOTOR CORPORATION
Wisconsin Motor Corporation and William F. Brun-
ton, Jr. Case 30-CA-652
June 17, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On February 23, 1968, Trial Examiner Paul E.
Weil issued his Decision in the above -entitled case,
finding that the Respondent had not engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that the complaint be dismissed in
its entirety , as set forth in the attached Trial Ex-
aminer 's Decision . Thereafter, the Charging Party
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the Respondent filed a
brief in opposition to the exceptions.
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
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 the case , and hereby
adopts the findings ,' conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
' We nereby correct the finding in the Trial Examiner 's Decision to con-
form with the record evidence that Charging Party Brunton commenced
work for the Respondent on February 20, 1967, and not , as the Trial Ex-
aminer inadvertently stated , on June 20, 1967.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On a charge filed
on September 19, 1967, by William F. Brunton, Jr.,
a complaint was issued on November 29, 1967,
pursuant to which the above-entitled proceeding
was heard at Milwaukee , Wisconsin, on January 3,
1968. The sole issue presented is whether the
1431
Charging Party was discharged in order to
discourage union membership in violation of Sec-
tion 8 (a)(3) and ( 1) of the Act. By its answer
Respondent admitted the jurisdictional facts and
that Brunton had been discharged , but alleged that
he was discharged for cause . All parties were
present at the hearing and had an opportunity to
call witnesses and interrogate them , to present
documentary evidence , and to argue on the record.
The parties waived oral argument; the General
Counsel and Respondent filed helpful briefs which
have been duly considered.
Upon the entire record, from my observation of
the witnesses , and in consideration of the briefs, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation, is engaged
in Milwaukee and West Allis, Wissconsin, in the
manufacture of air-cooled engines. During the last
calendar year preceding the issuance of complaint,
Respondent sold and shipped from its plants in the
State of Wisconsin products valued in excess of
$50,000 to points outside the State of Wisconsin.
Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, and its Locals, 75 and
283, are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Charging Party Brunton had formerly been em-
ployed at American Motors' plant in Milwaukee,
Wisconsin, at which the employees in the bargain-
ing unit are represented by UAW, Local 75. At the
time of his discharge Brunton was a chief steward
for that local on the night shift at American Mo-
tors . He was discharged on June 3, 1966, for
reasons that apparently had to do with his steward-
ship.
On February 14, 1967, Brunton applied at
Respondent 's plant for employment . He was inter-
viewed by Jack Decker , a personnel supervisor.
Brunton filled out an application form which pro-
vided , among other things, for the applicant's em-
ployment record . The instructions on the form are
as follows : "Account for all time for the past 10
years whether working or not . Give complete
names and addresses . If self-employed , give firm
name and one business reference ." Brunton listed
171 NLRB No. 135
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his employment at Cook Coffee Company com-
mencing June 21 , 1966, and stated that his reason
for leaving was "advancement ." Immediately below
that listing he listed Speedy Service ( father 's busi-
ness ), "Date Started 5/21/56 , Date Left 6 / 18/66."
The reason for leaving , "Just enough work for
father ." Brunton testified that he did not list his
period of employment at American Motors because
an unfair labor practice charge and an arbitration
were then pending regarding his discharge from
that plant . He also testified that Decker asked him
if he would be willing to take a physical examina-
tion, at which point he told Decker , " Well you real-
ize that all my former employers are not listed on
this application ." Decker , according to Brunton,
said , " That 's all right."
Brunton was thereafter hired and commenced
work on June 20, 1967 . His work career seems to
be unexceptionable in that it is clear that he was an
excellent employee, and in the 3 months that he
was employed was given three raises in pay.
Brunton testified that during his employment
with Respondent he was recognized by a number of
employees as a man who had been prominent in
union circles at American Motors . He testified that
he told those people that he didn 't want any
problems, that he just came to Respondent to work
and make a living , and that he didn't want any
publicity.
Personnel Manager Lukasik testified that on May
15 he was informed by Brunton 's foreman , Howard
Brown , that " the general scuttlebutt in the depart-
ment , as he had been hearing it, was that Mr. Brun-
ton had been involved in some incident and that he
had heard the name American Motors mentioned."
Lukasik told Brown that he would check into it,
pulled Brunton 's file, and determined that Amer-
ican Motors was not listed as a prior employer,
whereupon he instructed a clerk to telephone
American Motors to determine if Brunton had been
employed there . He testified that he received back
from the clerk a form which indicated that Brunton
had been employed at American Motors and that
he had been discharged , with a notation: "away
from job without permission , rules violation. Is a
capable man. No other information available,
records are in his files . The case is up to arbitra-
tion."
Lukasik called Brunton , together with his shop
steward and the chief steward , into his office and
asked him if he had been employed at American
Motors . Brunton admitted that he had , whereupon
Lukasik asked why he had not stated this on his ap-
plication . Brunton answered , "you would not give
me a chance if I had" and explained that he had a
problem at American Motors and if he had listed
this employer he did not believe that Respondent
would have given his application any consideration.
Brunton 's version of the conversation is
somewhat different . He states that he explained
that he had a case pending with the Labor Board
and an arbitration and that there was no final deter-
mination . Brunton appealed to Lukasik not to
discharge him, pointing out that he had an excellent
record with the Company , but Lukasik was ada-
mant that Brunton must be discharged because he
had falsified his application . Brunton told Lukasik
that he had told Decker when he was interviewed
that all his former employers were not listed and
that Decker said it was all right, but Lukasik did
not reply . At this point the chief steward appealed
to Lukasik to reinstate Brunton as a probationary
employee but Lukasik said that he would not do so,
although perhaps in 90 days he would give him con-
sideration if he filed a new application . Brunton
asked for a hearing under the grievance proceeding
set forth in the contract , and his chief steward said
he had another matter to attend to and that he
would call Brunton.
On May 19 the "hearing " was held with Brunton
represented by the Union 's president , Zagorski,
Chief Steward Helton , Vice President Kramer, and
Recording Secretary Cholonder.
At this meeting, according to the testimony of
Brunton , he reiterated that he had informed Decker
when he was hired that he had not listed all his
former employers and pleaded to be reinstated,
pointing out that his work was satisfactory, he had
been given raises, and he was no detriment to the
Company . Lukasik , speaking for the Company,
maintained his position that Brunton should remain
discharged . Nothing further came of the meeting.
When Brunton was discharged he went back to
his department to check out. At this point he was
accosted by his supervisor, Harold Crosby, who
asked him what had happened . Crosby testified that
he had already learned from the steward that Brun-
ton had been discharged . In response to Crosby's
question , Brunton said that he had been discharged
because he had falsified his application and said
something to the effect that a couple days he had
asked for afternoons off because he had worked at
American Motors and he had something doing over
there . Sometime later that day another employee,
Alois J. Dombrowski , asked Supervisor Crosby
what had happened to Brunton and, according to
Dombrowski 's testimony , Crosby answered that
Brunton's application had nothing to do with his
discharge . "It was just an excuse to get rid of him
because they had found out he was a union agitator
or a troublemaker for the Union . He had worked at
American Motors before he came to Wisconsin
Motors and he had caused a wildcat strike or two
over there . We don 't want him pulling that-here."
Crosby denied making this statement to Dom-
browski , although he admitted that he told some
employees , possibly including Dombrowski, that
Brunton had been discharged for falsifying his ap-
Elication. I was unimpressed with Crosby 's denials,
is demeanor on the witness stand was not reassur-
ing to me. On the other hand, I credit Dombrowski
who is no longer employed by Respondent and ap-
WISCONSIN MOTOR CORPORATION 1433
peared to testify candidly. However, Brunton did
not take the witness stand to rebut the testimony
given by Crosby about the postdischarge conversa-
tion. Accordingly, I presume that it was substan-
tially truthful.
Discussion and Conclusion
The sole issue is whether Brunton was discharged
because he had falsified his application or because
Respondent had learned of his union leadership at
American Motors and perhaps of his participation
in a wildcat strike and decided to get rid of him lest
he caused trouble at Respondent's plant. The major
hurdle the General Counsel has to cross is the
evidence testified to both by Personnel Manager
Lukasik and by Chief Steward Helton that the
Company's policy was to discharge any employee
who falsified his application . On cross-examination,
Brunton testified that during a recess in the
"hearipg" President Zagorski told him that he didn't
have a case and that the Company had discharged
people in the past for falsifying their employment
applications . (At this point in his testimony Brun-
ton stated, "This is what he stated, but I didn't falsi-
fy nothing , I omitted.")
The General Counsel contends that Brunton did
hot in fact falsify his application , relying on Brun-
ton's testimony that after filling out his application
he told the personnel supervisor that he had not
listed all his jobs. The personnel supervisor denied
any recollection of the conversation but stated that
if he had been so informed he would have inquired
as to other jobs that were not listed and made a
note of them. The appearance of the application
form , covering as it does Brunton 's period of em-
ployment with American Motors with the entry that
he had been employed by his father for a 10-year
period , is completely consistent with Brunton's ap-
parent purpose in leaving any mention of American
Motors off of his application and inconsistent with
any attempt allegedly made by him to inform the
Company that he had done so. Even if he had made
the statement that he says he made , a normal per-
son would assume that he meant by that, that he
had been employed by other firms prior to the 10-
year period that he was employed by his father.'
General Counsel sees additional corroboration to
Brunton's story in the decision of the Appeal Board
of the State Unemployment Commission which
states in pertinent portion,
Although the employee did not list one of his
previous employers on his work application to
the employer, he so informed the employer's
representative who hired him. It does not ap-
pear, therefore, that he violated any published
rule of the employer or in fact misled the em-
ployer by his answers on his application form.
Therefore, his actions did not constitute a wil-
ful or wanton disregard of the employer's in-
terests or of his duties and obligations to the
employer.
Respondent explains this finding, stating that the
initial determination of the Commissions deputy
denied benefits on the ground that the employee
was discharged for misconduct and the employee
appealed. Respondent contends that at no time
prior to the appearance of Brunton at the unem-
ployment compensation hearing did he ever make a
statement that he had informed the personnel su-
pervisor that he had worked for other employers,
and that accordingly they did not appear to contest
the appeal, believing that the documentary
evidence of his application sufficed to establish
their defense.
The General Counsel also contends that the
statement by Supervisor Crosby to Dombrowski
constitutes an admission by Respondent that Brun-
ton was discharged for the unlawful reason alleged.
I am not convinced that Supervisor Crosby had any
knowledge that this was the reason for the
discharge. On the contrary it appears that he did
not even know that Brunton was to be discharged
until after the event, when he was told first by the
steward and then by Brunton. While he may very
well have surmised that this was the reason, based
on his own knowledge of Brunton 's union status at
American Motors, and thus gave his conclusion to
Dombrowski as a fact, I see no reason to believe
that he was privy to any information that gives
reliance to his expression.
As I see it, the Company strongly disapproves of
falsification of an employment application, not an
unusual viewpoint , I'm sure . There is no evidence
that any employee who ever falsified an application
was not discharged and there is evidence that the
Union's president, a long-time company employee,
was of the opinion based on some knowledge that
the Company invariably discharged persons who
falsified their application. The quantum of evidence
required to override what clearly appears to be
cause for discharge does not appear to be satisfied
in this case. I do not believe that Brunton in fact
told the personnel supervisor that he had left off
the information that belonged on his application, or
that when he was discharged that he stated to Lu-
kasik that he had done so. Whether or not the
Company knew anymore than was reported to it on
the memos quoted above by Lukasik's clerical em-
ployee does not appear. The General Counsel asks
me to infer that the Company knew of Brunton's
activities at American Motors, to infer therefrom
that Respondent was concerned that he would be a
thorn in Respondent's side, with union activity, and
to leap from that inference to an inference that this
gave rise to a decision on the part of Respondent to
discharge Brunton. There is no evidence of union
animus in the record. It is clear that the Union is
' Brunton is shown on his application as being 35 years old at the time of
this incident.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and has been the representative of the employees
for some 30 years and the record reveals that there
is a union-security contract and a checkoff. Brun-
ton was afforded union representation by shop
stewards, area stewards , the chief steward, and
union officers at every step of the proceeding.
I cannot embark upon this train of inferences. I
find that the General Counsel has not sustained the
burden imposed by the statute of presenting sub-
stantial evidence on the record sufficient to warrant
overriding the clear cause for discharge, admittedly
present and relied upon by Respondent. Ac-
cordingly, I recommend that the complaint be
dismissed in its entirety.
RECOMMENDED ORDER
It is hereby recommended that the complaint
against Wisconsin Motor Corporation be, and it
hereby is , dismissed.