Gateway Equipment Co.

National Labor Relations Board - Board Decisions

Jun 11, 1991

303 N.L.R.B. 340 (N.L.R.B. 1991)

340
303 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge inadvertently referred to the date of the Union’s demand for rec-
ognition as May 20, 1990, at the beginning of sec. II,C, of his decision. The
correct date, as he stated elsewhere in his decision, is June 20, 1990.
1 All dates are in 1990 unless otherwise indicated.
Gateway Equipment Co., Inc. and Local 513, Inter-
national Union of Operating Engineers, AFL–
CIO. Case 14–CA–20832
June 11, l991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 7, 1991, Administrative Law Judge David
L. Evans issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed cross-exceptions and an answer-
ing brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Michael T. Jamison, Esq., for the General Counsel.
John J. Gazzoli, Jr., Esq., of St. Louis, Missouri, for the Re-
spondent.
Harold Gruenberg, Esq., of St. Louis, Missouri, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
was tried in St. Louis, Missouri, on October 1 and 2, 1990.1
The charge was filed on June 21 and the complaint was
issued on August 16.
For about 18 years, the Union represented the backshop
employees of Bob Sharp, Inc. (Sharp), a St. Louis-area deal-
ership of (mostly) Ford-New Holland agricultural and indus-
trial tractors. On April 30, Respondent purchased Sharp and
hired some, but not all, of the backshop employees. On June
20, the Union requested recognition as the statutory collec-
tive-bargaining representative of the backshop employees, but
Respondent refused to grant such recognition. The complaint
alleges this refusal to be a violation of Section 8(a)(5) of the
Act.
There are three issues to the case: (1) There is a question
about how many employees make up the smallest appropriate
unit at the time of the demand for recognition. General
Counsel contends that there were five employees in the unit;
Respondent contends there were six. General Counsel’s com-
putation excludes one David Williams who was hired prin-
cipally as a truckdriver; Respondent would include Williams.
(2) There is also a question whether all former Sharp em-
ployees who were hired by Respondent should be counted as
presumptively represented by the Union. General Counsel
contends that one Robert Lindsey should be counted as a
former Sharp employee who was represented by the Union
when he was hired by Respondent; Respondent contends that
Lindsey had been permanently laid off by Sharp, so he
should not be counted as having been a predecessor’s em-
ployee when it later hired Lindsey. (3) Finally, General
Counsel contends that any computation of union majoriy sta-
tus should include one Mark Crow, a former Sharp employee
who, General Counsel alleges, was not hired by Respondent
for reasons that violated Section 8(a)(3) of the Act. Respond-
ent admits a refusal to hire Crow, but contends that the re-
fusal was for nonviolative reasons.
I. JURISDICTION
Respondent admits that Sharp was a Missouri corporation
which, until April 30, was engaged at a St. Louis-area loca-
tion in the nonretail sale and service of industrial tractors and
equipment and related products and that Sharp, during the
year ending April 30, in the operation of the business, pur-
chased goods and materials valued in excess of $50,000 di-
rectly from suppliers located at points outside Missouri. Re-
spondent further admits that at the same location, it has been
in the retail and nonretail business of selling similar equip-
ment since May 1, and it admits that it annually receives, in
the operation of the business, revenues in excess of
$500,000. On these admissions I find and conclude that at
all times material, Respondent has been, and is, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and the Union is a labor organization
within the meaning of Section 2(5) of the Act, as Respondent
further admits.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On July 5, 1972, the Union was certified by the Board as
the collective-bargaining representative of the employees in
the following unit:
All mechanics, mechanics helpers and apprentice me-
chanics; excluding all office clerical and professional
employees, guards and supervisors as defined in the
Act, and all other employees.
The unit description in the last contract between the Union
and Sharp is:
[A]ll employees at the Employer’s [shop] located in the
metropolitan area of St. Louis, Missouri, who are en-
gaged in the repairing, maintenance, transporting and
handling of construction equipment and materials of
any kind or type owned, stored, or leased by the Em-
ployer, except for salesmen office help, parts depart-
ment employees, superintendents, watchmen and por-
ters.
341GATEWAY EQUIPMENT CO.
2 Conway also refused to hire Simler, but this refusal is not alleged to be
violative.
3 A further factor detracting from the allegation that Crow was not hired in
order to prevent the Union from establishing majority status is that, before the
demand for recognition, Respondent offered employment to one Jeff Adams
knowing that Adams was a member of the Union at the time. Adams accepted
the offer, but changed his mind before reporting to work.
Sharp began negotiating with various prospective pur-
chasers of the business at the first of 1990. Michael Conway,
Glen Edwards, Jimmy Whitney, and Roy H. Whistler incor-
porated Respondent in April for the purposes of purchasing
Sharp. All four of these individuals had worked for Winning
Equipment Company (Winning), the principal competitor of
Sharp. Sharp was located in St. Louis County; Winning was
located in contiguous Jefferson County.
On April 13, Respondent gave Sharp a letter of intent to
purchase the business. Ford Motor Company became in-
volved in the process because, although Sharp could sell his
building, etc., he could not sell the franchise. The franchise
would go back to Ford; and Respondent was required to deal
with Ford to get the franchise for itself. On Friday, April 27,
the three parties reached agreement(s), and on Monday, April
30, the three parties met for final inventory and accounting
before final signatures. On that date, the business was closed
for that purpose. On Tuesday, May 1, Respondent opened for
business.
B. The Refusal to Hire Crow
Crow was hired by Sharp as a mechanic in September
1985, and he worked for Sharp through April 27. For the last
2 years of his employment, Crow was the shop steward for
the Union. There is no evidence that Crow was active as a
shop steward for the Sharp employees, exccept that in late
1987 he opposed Sharp’s cutting back to a 4-day workweek,
rather than laying off one employee. As a result, Lindsey
was laid off. There is no evidence that Sharp harbored any
animus toward Crow for this, or any other, activity as shop
steward. There is no evidence that Respondent had any
knowledge of this, or any other union activity, by Crow be-
fore Respondent refused to hire him.
Along with all the other employees Crow filed an applica-
tion with Conway on May 1. According to Crow, when
Conway gave him an application form, Conway told him to
fill it out and read an employee handbook, which Conway
also gave Crow. Conway further told Crow that he would re-
view his application and, if it appeared ‘‘favorable,’’ he
would call Crow in for an interview. Conway added: ‘‘Other
than that, Bob Sharp franchise is terminated and so is your
employment with Bob Sharp.’’ Crow asked Conway how
long it would take to find out if he had a job with Respond-
ent, and Conway replied that he had several applications to
review, and he would get back to Crow at some later point.
On May 18, by letter of that date, Conway informed Crow
that ‘‘the immediate position for which you have a applied
for [sic] has been filled.’’ After trying for 3 or 4 days, Crow
reached Conway by telephone. According to Crow, he told
Conway that he could not understand the rejection. Crow fur-
ther testified that Conway ‘‘just said my skills didn’t fit what
he needed.’’
There is no allegation that any other employee was denied
employment violation of Section 8(a)(3), and there is no evi-
dence of animus on the part of Respondent (or Sharp).
In this posture of the case, there has been no presentation
of a prima facie case of discrimination against Crow as re-
quired by Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (lst Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). For that reason, I would recommend dis-
missal of the allegation that Crow was denied employment
because of his union activities, or that he was denied em-
ployment in an attempt to avoid bargaining with the Union
as the collective-bargaining representative of the backshop
employees.
Moreover, assuming that a prima facie case under either
theory has been presented, Respondent has shown that it
would not have hired Crow regardless of his union activities
on behalf of the employees when employed by Sharp.
Bill Nack was the service manager for Sharp, and he was
the first of the backshop personnel hired by Respondent.
Conway consulted Nack about which of Sharp’s employees
should be hired. Nack and Conway testified that Nack told
Conway that all former employees had been good employees
except Murl Simler who was ‘‘a clown,’’ and Crow, who
had a ‘‘bad attitude.’’ Two of the employees whom Nack
specifically recommended to Conway were mechanics Char-
lie Previtt and Bob Lindsey. Conway hired Previtt on May
3 and Lindsey on May 9. Conway also consulted both of
these employees about Crow. According to the testimony of
Conway, and the testimonies of Previtt and Lindsey, both
employees told Conway that Crow had a ‘‘bad attitude’’ or
was otherwise difficult to work with. Conway further con-
sulted with Dan Anich who had been president of Sharp.
Anich told Conway, ccording to the testimonies of Conway
and Anich, that Crow, while being a good mechanic tech-
nically, had a ‘‘bad attitude.’’ Finally, according to Conway,
Bob Sharp also told Conway that Crow had a ‘‘bad atti-
tude.’’ (Sharp did not testify.)
Conway testified that he never asked any of these five in-
dividuals what they meant by ‘‘bad attitude’’ or ‘‘hard to get
along with,’’ and they did not say, but that he refused to hire
Crow because of these recommendations.2
General Counsel points out that useages of the terms ‘‘bad
attitude’’ and ‘‘troublemaker’’ have many times been held to
constitute evidence of animus by the Board. This is true;
however, the Board has never held that the use of the term
‘‘troublemaker’’ is presumptive evidence of discriminatory
intent, or evidence of animus, in a situation devoid of other
evidence of animus, as is the case here. Accordingly, I ad-
here to my conclusion, supra, that no evidence of animus to-
ward Crow has been presented, and I further conclude that
Respondent has proved that it would not have hired Crow re-
gardless of Crow’s union activities while Crow was em-
ployed by Sharp, and Respondent has proved that it would
not have hired Crow even if the Union’s majority status were
not in issue.3
Accordingly, I shall recommend dismissal of the allegation
that Crow was denied employment by Respondent in viola-
tion of Section 8(a)(3) of the Act.
C. Majority Without Crow
As of the Union’s May 20 demand for recognition, Re-
spondent had employed Charles Previtt, Robert Lindsey, and
David Ware as mechanics. By that date Respondent had also
hired as mechanics helpers Kevin Previtt (brother of Charles)
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 E. H. Koester Bakery Co., 136 NLRB 1006 (1962).
5 The Union’s position is a relevant consideration under Marks Oxygen Co.,
147 NLRB 228 (1964); however, the Union has not indicated that it would
not represent a unit that includes the truckdriver, and it probably would have
been willing to do so if the result on Crow had been different.
6 General Counsel refers only to relative skills as a distinction between the
classifications.
7 The issue of Lindsey’s status as an ‘‘old’’ employee is rendered moot after
the decision on Williams. However, see Derby Refining Co., 292 NLRB 1015
(1989).
8 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 objec-
tions to them shall be deemed waived for all purposes.
and Buddy Hobbs, and it had also hired as a truckdriver
David Williams.
The demand for recognition specified as the requested
unit:
mechanics, mechanic helpers and mechanic apprentices
in the employ of your company.
The issue that first arises is whether the smallest appropriate
unit that includes those employees would necessarily include
the truckdriver; if so, the Union could not have possessed
majority status on the date of demand.
While the dealership was owned by Sharp, Williams was
used for an undetermined period of time to pick up and de-
liver parts and equipment. During those times, he was not
considered to be a member of the unit by Sharp and the
Union. When Williams was absent, or not employed, Sharp
had used contract delivery services for pickup and delivery
functions.
Conway testified that during negotiations with Sharp,
Sharp told him that Gateway would need a truckdriver.
Conway spoke to Nack about this, and Nack recommended
that Williams be hired. Conway interviewed Williams on
May 3, and he hired Williams on May 7. When he was
hired, Williams told Conway that he wanted eventually to
become a mechanic, and Conway told Williams that ‘‘we do
try to promote from within, and if that was what he wanted,
we would see if we could get him toward that direction’’ and
that Williams may be reclassified within 6 months (which
would be 1 month after the instant hearing).
Williams did not testify. Conway testified that Williams
picks up parts and picks up and delivers new and rental
equipment (tractors, graders and such), and he works around
the shop. Williams’ shop work consists of maintaining the
delivery truck that he drives (checking and changing the oil,
checking the tires), cleaning equipment with the steam hose,
assembling attachments (such as backhoes and loaders) and
bolting them to tractors or graders, helping the mechanics in
their work from time to time, and ‘‘just about anything [else
that] we want him to do.’’ The mechanics, at one time or
another, will do the same shop work that Williams does, in-
cluding the cleaning work. Williams works from 7:30 a.m.
to 4:30 p.m., the same hours as the mechanics; his wage rate
is $9 per hour the mechanics are paid $14.80. On cross-ex-
amination, Conway acknowledged that Williams does no en-
gine work.
There was no rebuttal of this testimony by Conway and
Nack.
Like the mechanics, Williams reports directly to Nack.
Nack was asked what percentage of his time Williams spends
driving the delivery truck. Nack replied: ‘‘I would say ap-
proximately 50 percent. There are some days that he doesn’t
drive at all.’’ Nack further testified that Williams maintains
a set of tools at the shop, although the inventory is not as
extensive as that of the mechanics.
If the truckdriver were not included in the unit, he would
be completely without representational rights, an assuredly
undesirable result. Although the truckdriver was not included
in the certification, and his representational rights appear to
have been ignored by the Union and Sharp in the past, there
is certainly no binding authority that holds that the truck-
driver shall forever remain unrepresented, no matter who his
employer may be or what work the truckdriver may do.
Although the Board will not always require the placement
of a truckdriver in a more comprehensive unit,4 it will do so
if the community of interest between a driver and the pro-
duction and maintenance employees is strong enough, even
if the involved union objects.5 In Calco Plating, 242 NLRB
1364 (1979), the employer was in the business of repairing
and replating automobile bumpers. The Board, over the
union’s objections, included the employer’s local pickup and
delivery driver because the drivers spent a substantial amount
at the plant working with, or in proximity to, the production
employees, they did some production work, and the produc-
tion employees regularly did work performed by the drivers.
The drivers and production employees were subject to the
same disciplinary rules, but they were under separate imme-
diate supervision.
Like Calco, there is substantial contact between the two
classifications, and some overlapping of job functions. More-
over, in this case the driver and the production employees
are under the same immediate supervision, a factor missing
in Calco. Although there is a substantial difference in the
wage rates, all disciplinary rules and all other benefits, as
stated in the employee manual that was distributed to all ap-
plicants, are identical.6
Because of these factors, I find and conclude that there is
a community of interest between the truckdriver and the pro-
duction employees that requires inclusion of the truckdriver
in any unit of mechanics employed by Respondent.
With the inclusion of the truckdriver classification in the
smallest appropriate unit, it is clear that the Union was not
a majority representaive of Respondent’s employees at the
time of the June 20 request for bargaining. That is, under the
law of sucessorship, the Union, at most represented Charles
Previtt, Ware, and Lindsey,7 not Williams, Hobbs, and Kevin
Previtt.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended8
ORDER
The complaint is dismissed.