Stockton Kenworth Co.

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 800 (N.L.R.B. 1975)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stockton Kenworth Co. and International Association
of Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 190, Local Lodge No. 428. Case
20-CA-9904
November 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On August 11, 1975, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Stockton Ken-
worth Co., Stockton, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (C.A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held on June 3, 1975, is based upon an
amended unfair labor practice charge filed by the above-
named labor organization on March 12, 1975, and a
complaint issued on April 21, 1975, on behalf of the
General Counsel of the National Labor Relations Board,
which, as amended at the hearing, alleges that Stockton
Kenworth Co., herein called the Respondent, has engaged
I Respondent 's principal witnesses , President Walters and Service
Manager Winters, in general , were not convincing witnesses when they
testified about the events leading up to and surrounding the decision to
discharge Althiede. I have considered that Winters shortly prior to the
hearing was demoted by Respondent and chose to quit his employment,
221 NLRB No. 147
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the National Labor Relations Act, herein
called the Act. Respondent filed an answer to the amended
complaint denying the commission of the alleged unfair
labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses,' and having considered the
posthearing briefs submitted by the parties, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, Stockton Kenworth Co., is a California
corporation with its principal place of business in Stockton,
California, where it is engaged in the nonretail sale and
servicing of new and used trucks. During 1974 Respondent
purchased and received goods and materials valued in
excess of $50,000 directly from suppliers located outside
California. Respondent admits that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 190, Local Lodge
No. 428, herein called the Union, is admittedly a labor
organization within the meaning of Section 2(5) of the Act.
III. THE QUESTION PRESENTED
The question to be decided is whether Respondent
discharged employee Ted Althiede because he filed a
grievance With the Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent sells and services new and used trucks. The
employees who service the trucks - the shop and parts
department employees - have been represented by the
Union and covered by a collective-bargaining agreement
since 1966. The alleged discriminatee, Theodore Althiede,
started work for Respondent in August 1966 and was
discharged on October 7, 1974. Althiede was the Union's
leading adherent among the employees employed by
Respondent. During contract negotiations in 1968, 1971,
and 1974, Althiede was the employee who represented the
other employees on the Union's negotiation committee and
during the strike which arose over the most recent contract
negotiations Althiede was the union picket captain at the
Respondent's premises. Also, other employees would seek
out Althiede if they had any questions concerning the
terms of the collective-bargaining agreement. Respondent
knew that Althiede was the most active of its employees in
his support of the Union. The president and general
nevertheless, my impression of Winters, as well as Walters, was that neither
one was interested in testifying truthfully but solely in advancing the
interest of Respondent Althiede impressed me as an honest and reliable
witness
STOCKTON KENWORTH CO.
manager of Respondent, Leon Walters, knew of Althiede's
involvement in the several collective-bargaining negotia-
tions and that he had served as the union picket captain.
The sole evidence adduced by the General Counsel to
demonstrate that Respondent was hostile toward the
Union or toward Althiede because of his union activity
pertains to his discharge in 1968, a 1967 dispute over call-in
pay between Walters and Althiede, and Walters' 1971
remarks to Althiede about a nonunit employee who was
doing unit work. I shall discuss these events seriatim.
During the 1968 contract negotiations, Althiede left work
to attend either a negotiation meeting or a meeting of the
union negotiators. Walters was not in the shop at the time,
so, Althiede notified the shop foreman that he was leaving,
explained the reason for his absence, and asked the
foreman to tell Walters he would return as soon as the
meeting finished. Althiede at the time was in the process of
preparing a repair estimate for a customer and left before
completing it. Walters, when he learned that Althiede had
left the shop without finishing the estimate, immediately
phoned Althiede at the Union's office and asked him about
the estimate. When Althiede stated he had left without
completing this work, Walters indicated he was unhappy
with Althiede because he had not completed the estimate
prior to leaving the shop and told him he was discharged.
Althiede filed a grievance over the discharge and thereafter
was reinstated by Walters as part of the 1968 contract
settlement between Respondent and the Union. In my
view, this incident illustrates only that Walters lost his
temper over Althiede's leaving work without finishing the
work he was performing. ,,It does not demonstrate that
Walters punished or was angry with Althiede because he
left work to attend a negotiation or a union meeting.
In 1967 Walters told Althiede to leave the other,
employees alone and not tell them that the Respondent,
under its contract with the Union, was required to pay
them 4 hours' call-in time on weekends and holidays.
Walters offered to bet Althiede that the contract did not
require this payment. Althiede told Walters to speak to the
Union's business representative. All this illustrates is that
Walters and Althiede engaged in a dispute over the
meaning of the collective-bargaining agreement, it does not
show that Walters was hostile toward Althiede, because of
his union activities.
In 1971, a janitor employed by Respondent, Gomez,
whose work was not covered by the collective-bargaining
agreement was assigned work covered by the agreement.
He occasionally helped mechanics. This was a violation of
the bargaining agreement and an employee - not Althiede
- complained to the 'Union. The Union's business
representative complained to Walters. Walters went to
Althiede and asked for the name of the person who had
told the Union about Gomez' helping the mechanics.
Walters told Althiede that he would physically beat up this
person since it was a dirty trick to play on Gomez. Althiede
stated that if it would make Walters feel better he could
start swinging at Althiede. Walters ignored Althiede's
remark and replied that Althiede should tell the Union's
business representative to keep away from the shop and the
2 All dates hereafter, unless otherwise specified, refer to 1974
3 At times Althiede's premium pay fell below 10 percent but was
801
employees. This episode, in my view, indicates that Walters
was angry with the Union's business representative for not
allowing him to use Gomez to perform mechanic's work
and indicates that he believed that Althiede was the one
who had told the Union about the matter and was angry
with Althiede. However, the incident is of no value in
evaluating Respondent's motivation in discharging Alth-
iede 3 years later in view of its remoteness.
To sum up, Respondent when it discharged Althiede in
October 1974 had a long collective-bargaining history with
the Union, knew that Althiede was the most active of its
employees in his support for the Union, but had not
engaged in the type of conduct toward Althiede or others
which would demonstrate that during the time material to
this case-October 1974-that it was looking for an excuse
to discharge Althiede because of his union activities.
B. Althiede's Grievance
The most recent negotiations over the terms of a new
bargaining agreement between Respondent and the Union
reached an impasse in June 19742 at which time Respon-
dent's employees, including Althiede, struck in support of
the Union's bargaining position. The strike lasted from
July I to August 27, when a new agreement was reached.
Prior to the strike several of the Respondent's employees,
including Althiede, had received premium pay, a higher
hourly rate of pay than called for by the collective-
bargaining agreement. The highest premium paid was 10
percent above the contractual hourly rate and was paid to
Althiede, along with about six or seven others, from the
time Althiede started working for Respondent.3 When
asked to explain how it was determined whether an
employee would receive premium pay, Walters testified
that premium pay was based "upon the attitude, perfor-
mance of, the productivity of the employee, and the profit
of the employer."
Following the most recent contract negotiations which
concluded in late August when the employees returned to
work they discovered that Respondent had eliminated their
premium pay. Althiede, upon the receipt of his first
paycheck which indicated his loss of premium pay, grieved
over the matter to the Union's business representative,
Robert Durham. Durham believed the grievance was
meritorious and processed it under the grievance-arbitra-
tion procedure contained in the recently negotiated
bargaining agreement. On September 27, he visited Walters
in an attempt to resolve the grievance informally. Durham
told Walters about the grievance and in support of the
grievance directed Walters' attention to section 3 of the
contract which at paragraph 4 states:
No employee shall have his rate of pay reduced as the
result of the signing of this agreement. No herein
shall prohibit the paying of a higher rate of pay at the
discretion of the employer.
Walters' and Durham's interpretation of this provision
differed. Walters took the position he had the discretion to
discontinue paying premium pay. Durham claimed that the
increased when he complained
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicable provision prevented Walters from reducing the
pay of the employees. During this conversation, Walters
testified, he told Durham that an employee "just don't
automatically fall into a category that I'm worth 10
percent. Your ability always has to be proven," and that
premium pay "is something you have to earn."
Unable to resolve Althiede's grievance informally, on
Monday, September 30, Durham, by letter, informed
Walters that he was filing a grievance on behalf of Althiede
charging the Respondent with violating paragraph 4 of
section 3 of the collective-bargaining agreement by
discontinuing Althiede's premium pay.4 Walters presuma-
bly received this letter on or about Tuesday, October 1, or
Wednesday, October 2. Althiede was initially notified of
his discharge on Friday, October 4, and discharged on
Monday, October 7.
C. Althiede's Employment History
Respondent's business is housed in two buildings
adjacent to each other. In the main building or truck shop
general truck repair work, including engine and transmis-
sion work, is done. Also, prior to the 1974 strike, the body
work was performed in the truck shop. The other building,
the trailer shop, is where truck trailers are built from the
ground up, as well as painted and repaired, and machine
work is performed and where, after the 1974 strike, the
body work was transferred.
Althiede, a journeyman mechanic, was a jack of all
trades for Respondent. He was proficient in performing
general repairs, engine and transmission work, body and
fender work, frame work, welding, brake work, electrical
work, machine work, and air-conditioner repairs. Before
the 1974 strike 'Althiede worked almost exclusively in the
trailer shop, but shortly after the end of the strike
Respondent moved the body shop from the trailer shop
into the truck shop and as a result Althiede spent about
one-third of his time during his last 3 weeks of employment
working in the truck shop and the remaining two-thirds in
the trailer shop.
The person who has been the immediate supervisor in
the trailer shop since 1972 is Foreman Bill Chrisman who is
admittedly a statutory supervisor.5 Chrisman's boss, at the
time of the discharge, was the Respondent's service
manager, Homer Winters. Winters, the service manager
since February 1974, also occupied the position of
immediate supervisor over the truck shop. Simply stated
Foreman Chrisman was Althiede's foreman from 1972
until his discharge except for the 3-month period in late
1973 and early 1974 when Winters substituted for
Chrisman who was on vacation and except for the 3-week
period after the 1974 strike when Althiede worked under
Chrisman's supervision two-thirds of the time and under
Winters the remaining one-third of the time.
It is admitted that in Althiede's 8 years of employment
no one from management including General Manager
Walters, Foreman Chrisman, or Service Manager Winters
4 An impartial arbitrator was thereafter selected by the Respondent and
Union. He heard the grievance and on May 21, 1975, denied it.
5 Chnsman was Althiede's immediate supervisor at all times from 1972
except for a period of 3 months from November 1973 through January 1974
when Winters substituted for Chrisman who was apparently on an extended
ever criticized the quality of his work or his productivity
nor , did management among themselves ever speak
critically about Althiede's work performance.
D. Althiede's Discharge
On Friday, October 4, at the end of the workday, as he
was leaving, Althiede, as described herein, was told by the
Respondent's service manager, Homer Winters, that he
was discharged.6 Winters told Althiede his work was falling
down, it was not up to par, that because of this he was "all
through" and the employer would not need his services any
longer. Winters then referred to four specific jobs that
Althiede had recently worked on, which for the sake of
convenience I shall refer to hereafter as the Casey,
Marchesotti, Used Truck, and Northern Forest jobs.
Regarding the Northern Forest job, Winters told
Althiede that it had taken him 60 hours to finish this job.
Althiede replied that this was not correct inasmuch as there
were five persons, including himself, that had worked on
the job and he was not responsible for that portion of the
60 hours attributable to the four other mechanics who had
worked on the job.
Regarding the Marchesotti job, Winters told Althiede
that an air-conditioner which he had recently repaired was
on its way back into the shop for repairs. Althiede replied
that since there was no indication of what was wrong with
the air-conditioner it was impossible for him to defend
against the accusation of wrongdoing until he found out
what had caused the air-conditioner to malfunction.
Regarding the Used Truck job, Winters told Althiede
that this job, which involved the repair - of a truck air-
conditioner had taken too long. Althiede replied that when
Winters assigned the job to him Winters knew that the air-
conditioner was an old one which needed much work and
also knew that it was impossible for anyone to have done
the work faster than Althiede had been doing.
Regarding the Casey job, a job which involved the repair
of a dump truck hoist which had been returned by the
customer for repairs after being repaired by Althiede,
Althiede told Winters that Foreman Chrisman and he had
discussed the job and that Chrisman had given him specific
instructions on what to repair and that the two of them had
made the repairs.
Winters listened to Althiede's explanations, described
above, in silence. Winters did not indicate that Althiede's
explanations were false or that he did not believe Althiede
or otherwise indicate why he believed that Althiede,
despite his protestations, was in error on the four jobs.
When he finished with his explanations and when Winters
made no rejoinder, Althiede declared that he could not
understand how Winters could discharge him for unsatis-
factory work since his work had remained the same'
throughout his 8 years of employment and had always
been satisfactory. Winters at this point retracted Althiede's
discharge and told him that he had 1 more week to
vacation.
6 Althiede's and Winters' version of their October 4 conversation
conflicts in certain significant respects. As I indicated previously, Althiede
impressed me as the more trustworthy witness. Accordingly, I have credited
his version.
STOCKTON KENWORTH CO. 803
improve his work and to report for work as usual on
Monday, October 7.
On October 7, Althiede arrived for work and was met by
Winters who, without explanation, told Althiede he was
discharged and directed him to take his tools and leave the
premises.
On October 9, Winters, by letter, notified the Union that
Althiede had been terminated and enclosed a one-page
document which contained the "reasons" for the termina-
tion. The one-page enclosure mentions four jobs on which
Althiede's work was unsatisfactory: the Casey, Marchesot-
ti, Used Truck, and Northern Forest jobs. In essence the
enclosure states that the Casey and Marchesotti jobs had
returned to the shop after Althiede had made repairs;
Althiede had taken an excessive amount of time complet-
ing the Used Truck job which still was incomplete; and
regarding the Northern Forest job that he had taken
excessive time to "mount" lumber bunks, had taken 6
hours on October 4 to perform certain work, had
incorrectly mounted a "Cab guard," as well as the lumber
bunks, and had neglected to attach certain bolts,
E. An Evaluation of Respondent's Reasons for
Noting Althiede of His Discharge on October 4
The reasons advanced by Winters for notifying Althiede
on October 4 that he was discharged are in substance (1)
the quality of his work was unsatisfactory which caused
customers to return it to the shop, and (2) he took too long
to finish his assignments. The sum total of Winters'
complaints pertain to four jobs, namely, the Casey,
'Marchesotti, Northern Forest, and Used Truck jobs. I shall
set out and evaluate the evidence pertaining to Winters'
complaints about Althiede's work on these jobs.
The Casey job, which came into the'trailer shop on
September 9, involved the repair of a truck. The work
order written by Foreman Chnsman states "check & repair
small stage on hoist."'The work order indicates that of the
11 hours spent working on the truck Chnsman spent 1 and
Althiede 10. It is undisputed - based on Althiede's
credible testimony which is undenied - that when this
truck came into the shop Chrisman instructed Althiede to
pull the stage on the hoist out of the truck and check the
seals and that with Chrisman's help Althiede did this, and
they found the seals were in satisfactory condition.
Chrisman then decided that perhaps the hoist was buckling
so the two of them worked on the bottom of the stage at
which point Althiede observed some wear on the top of the
small stage and brought it to the attention of Chrisman.
Chrisman decided that this should be left as is - not
repaired - since in his view it would not interfere with the
operation of the truck's ramp. The 'truck was returned by
the customer on October 1 and the work order written by
Winters states, "repair cylinder so bed will come down."
Althiede was assigned the. job and found that the problem
was the fact that the top of the small stage had a worn spot.
This was the condition which Althiede had earlier reported
to Chrisman as described above. Now, Althiede went to
Winters and advised him of the'problem. Winters did not
indicate to Althiede he believed Althiede was at fault. And,
as found above, when Winters on October 4-for the first
time indicated that Althiede was at fault, Althiede
truthfully informed him that it was Chrisman's error since
Chrisman had worked with him on the job and Althiede
had followed Chrisman's orders in repairing the truck.
Winters had no reason to disbelieve Althiede's ^ truthful
explanation yet he admittedly made no,effort to investigate
the matter - talk with Chrisman - and was unable to
convincingly explain at the hearing why he did not verify
Althiede's explanation. Based on the foregoing, I find that
Althiede was not responsible for the comeback of the
Casey truck and that, Winters at no time, thought that
Althiede's work on this truck was unsatisfactory.
The Marchesotti, job involves the repair of a truck air-
conditioner which the customer initially brought into the
shop for repairs on September 17. Althiede, who made the
repairs, followed the normal procedure used in the shop to
repair air-conditioners. He took, the air-conditioner apart
except for the pumps which he tested. Althiede made the
necessary repairs but did not touch the pumps because
they tested out as satisfactory. The next day, September 18,
Winters testified that the truck's driver phoned and
complained that the air-conditioner was not working.? The
air conditioner was returned to the shop at the time of
Althiede's discharge and repaired following his discharge
by Foreman Chnsman who discovered the pumps "blew
up." When Althiede shortly after his termination asked
Chrisman, who at the time was working on the particular
air-conditioner, what was wrong with it, Chrisman told him
that the pumps "blew up" and in substance told Althiede
that it was not Althiede's fault. Nor, in my opinion, did
Winters ever believe that Althiede was responsible for this
comeback. The repair of air-conditioners. is a specialized
task, performed in Respondent's shop by two persons,
Althiede and Foreman Chrisman. Winters admittedly was
ignorant when it came to repairing air-conditioners.
Nevertheless, Winters would have, me believe that, even
before the air-conditioner was returned to the shop and
rechecked, he concluded Althiede was in. the wrong. This
despite the fact that there is not one shred of evidence that
Winters in the past had ever had any complaints about
Althiede's work on air-conditioners. Moreover, Winters'
strange conduct subsequent to ,the return of this: air-
conditioner, indicates that he was never concerned about
Althiede's work but was simply seizing upon this comeback
as an excuse to use to discharge Althiede. Winters admitted
that he never even checked with Chrisman to determine
what was wrong with the air-conditioner or, more
specifically, whether in fact Althiede was at fault in the
matter. Based on the foregoing, I find that Althiede was
not responsible for the Marchesotti comeback and that
Winters never thought that Althiede's work in connection
with this job was unsatisfactory.
Regarding the Used Truck job, this job involved the
repair of an air-conditioner in a truck owned by- Respon-
dent, which truck Respondent was reconditioning for
resale in its used truck lot. The job of repairing this air-
7 This testimony, 'which is not corroborated, is extremely suspect September 1'8, the truck was not returned to the shop for repairs until some
Winters, as I have indicated previously, generally impressed .me as a 2 weeks later and at no time prior to October 4 did Winters ever indicate to
dishonest witness. Although the driver allegedly spoke to Winters on Althiede that the air-conditioner was coming back for repairs.
-804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditioner was assigned to Althiede by Winters several
weeks ' prior to his discharge. Althiede had not completed
the job when he was discharged. Winter's when he assigned
him the job told Althiede that-the air-conditioner probably
had, not worked in a couple of years. Althiede discovered it
was in -,temble condition. The pump was without belts, the
mounting bolts Were broken off in the compressor housing,
the insulation 'in the evaporator compartment needed to be
reglued , and the condenser fins were all flattened out in the
front. The most time-consuming part of this job was the
200 condenser fins' which had to be stood 'on edge. The
very nature of the repairs made the job an extremely time-
consuming one. Moreover, the job was delayed by the
Respondent's practice of using this type of-work as a fill-in
between customers' repairs. Consistent-with Respondent's
practice involving repairs on trucks which it is recondition-
ing for its own sale; Althiede was continually pulled off this
job whenever a customer came in with a job. Under the
circumstances , the 'fact that Winters never indicated to
Althiede that he was taking too long to finish this job is
understandable since Althiede's time on this job was not
excessive.' Winters, 'admittedly without experience 'and
otherwise ignorant about the repair of air-conditioners, at
the hearing testified Althiede took too long on this job. He
was unable, however, to give an' explanation for his basis
for this conclusion- when the'age and condition of the air-
conditioner was taken into account, but, testified, "t know
how long I Teel that a man should take to repair an air
conditioner." When it was pointed out that Althiede had to
stand on edge 200 condenser fins, Winters admitted that he
did not know how long this would take but, apparently
realizing that this would take'an extraordinary amount of
time , testified 'that there were only` about 100 condenser
fins that needed fixing not 200. When asked how long it
would take on 'the_ average to stand on edge 100 condenser
fins Winters evaded the question and finally testified,, "I'm
not convinced that-there were any collapsed grills [referring
to the' :condenser fins] on the air conditioner." Upon
further questioning , however, Winters testified he had
never , even' seen - the air-conditioner involved and, had no
knowledge as to the number of condenser fins which
needed'to' be repaired.' This is incredible. Winters'would
have me believe that he came to the conclusion that
Althiede was taking an excessive amount of time on this
job even though ' Winters had never even observed the
nature : of the ,repairs. That Winters' contention Althiede
took too' long on this job is a fabrication is 'further
demonstrated by his'admitted failure to speak to Althiede
about the length of time he was taking and his inability to
explain" why, if he was concerned over the length of time
the job was taking, he never mentioned the 'matter to
Althiede. His explanation, "I like to wait until I get all the
facts before' I "talk to a' man about his' work and know to
what I am referring," is, incredible since admittedly
Winters never even took The time to look at the, air-
conditioner involved.- Moreover, it would seem in this type
of a situation, considering his lack of knowledge about air-
conditioner repairs, that Winters, if he was'°concerned
about Althiede's work, would have spoken to Althiede
about , the ,matter. ,Based on the foregoing,, I find that
Althiede did not take an, excessive amount of time to repair
the Used Truck air-conditioner and'that Winterswas never
concerned that Althiede was taking too long on this job.
Regarding the Northern Forest job, this involves
conduct by Althiede which Winters testified triggered his
conversation with Althiede- on October 4 at which 'time
Winters initially notified Althiede of his discharge. In
connection with this project, Respondent was transferring
lumber bunks from one truck to another. Lumber bunks
are metal , 2- by 2-inch square, and 8-feet long, and
mounted crossways on the frame 'of a truck: They carry
lumber. Respondent had promised the customer, Northern
Forest Products, that the lumber truck would be completed
on October 4. The result was a last-minute rush to ensure
timely delivery. Winters testified that based upon his
personal observation of Althiede's work on October 4 that
all Althiede did in 6 hours was install a muffler guard and
two ratchets and two hooks, nothing else.'Althiede testified
that in addition to 'this work he welded four of the bunks to
the frame. Winters testified that these bunks were welded
by Althiede the previous day. Of the two witnesses, as
indicated previously, Althiede impressed me as an honest
witness, whereas Winters did not; accordingly, I Accept
Althiede's testimony and find that Althiede did not take 6
hours to install a muffler guard and two ratchets, and two
hooks or that Winters believed this was the case, I further
find that Althiede in connection with thisjob did not take
an excessive, amount of time'to "mount" the lumber bunks
nor did Winters believe this was the case. In this
connection, Althiede credibly testified that there were
approximately four other employees who did this work,
thus, the length of time it took to accomplish this job - 60
hours - was not the fault of Althiede. When Althiede gave
this explanation to, Winters on October 4, as I have
described Above, Winters did not, challenge its ' correctness
nor did Winters at the hearing refute this explanation'
F. An Evaluation of Respondents Reasons for
Deciding on October 5 To Discharge Althiede
The testimony of the president of Respondent, Walters,
and its service manager, Winters, is to the effect that the
triggering cause of Althiede's discharge occurred on
Saturday, October 5, when the Northern Forest Products
lumber truck was returned to the shop with certain 'defects
in the workmanship which, as described 'below, were
attributed to Althiede. Winters told Walters that Althiede
was responsible for the errors and also told 'him about
Althiede's poor performance in connection with the Casey,
Marchesotti, and Used Truck jobs, and the length of time
he had taken on the Northern Forest job. Winters
supposedly also informed Walters that he felt Althiede was
unhappy because his premium pay had been discontinued
and that he had spoken to Althiede about his poor work,
but that Althiede, rather than acknowledge the need for
improvement, had maintained that his work was satisfacto-
ry. Walters, upon receipt of this, information, told Winters
to discharge Althiede. '
The defective' workmanship on th e Northern Forest
Products truck, attributed to Althiede, which Winters and
Walters allegedly observed on Saturday, 'October 5,
allegedly consists in essence of the, following: (1) the cab
guard was mounted 5 inches too far to the rear; (2) the
STOCKTON KENWORTH CO. 805
lumber bunks were not mounted square with the frame;
and (3) the bolts had been left out of the cross-member that
had the "shocks" mounted to it. The testimony of Walters
and Winters about what occurred and what they observed
was wrong with the Northern Forest Products truck on
October 5 is not corroborated. Althiede, who was not
present at the shop on that date since it was not a workday,
testified that when he was assigned to this job he was
instructed to remove the lumber bunks and the cab guard
from the customer's old truck and install them on a new
truck without any specific instruction as to where the cab
guard was to be mounted. Accordingly, he removed the
bunks and set them on the new truck as close as possible to
the setting that they had been on in the old truck. As far as
he observed, the cab guard was installed correctly.
Likewise, Althiede is unable to imagine that the bunks
were not mounted square with the frame. He credibly
testified that when he installed the bunks he measured each
one individually and cross-checked his measurements and
observed they were mounted square with the truck's frame.
Finally, Althiede admits that in the rush of things to
complete the truck on October 4 that he forgot to put the
bolts in the cross-member to which the "shocks" were
mounted.
I reject the testimony of Winters and Walters concerning
what occurred on October 5. Their testimony was
uncorroborated8 and was without other support in the
record and, as I have indicated previously, they impressed
me as dishonest witnesses. Moreover, the story given the
Board by Walters in his prehearing affidavit, which he
swore to, convinces me that Walters' and Winters'
testimony was manufactured from whole cloth. The
affidavit which describes what occurred which motivated
Walters to instruct Winters to discharge Althiede is
completely at odds with Walters' and Winters' testimony
advanced at the hearing.9 The affidavit in pertinent part
reads:
A lot of people had begun to complain about Althiede's
work by the end of September. About September
[blank], Winters had talked with me about Althiede's
work; Winters told me that Althiede was costing the
firm hundreds of dollars in work that had to be redone
at no charge. Although Winters has the authority to
hire and fire on his own, he did consult with me about
Althiede's discharge. I told Winters that if Althiede
continued to do poor work, we would have to fire him.
On October 4, I directed Winters to warn Althiede if
'his work did not improve, he would be fired; then on
Monday, October 7 Winters told me that Althiede said
he was doing the best he could, so I told Winters to
discharge Althiede immediately.
,Contrary to Walters' sworn affidavit neither in Septem-
ber nor at any other time had anyone complained about
Althiede's work, nor did Winters ever complain to Walters
that Althiede was costing the company hundreds of
dollars, nor, in response to Winters' complaint, did Walters
tell Winters that if Althiede continued to do poor work that
8 The customer (Northern Forest Products) was not called upon to
corroborate their testimony concerning the state of the customer 's truck on
October 5, nor did Respondent produce work records to substantiate the
Winters should discharge him. To the contrary, the
testimony of both Winters and Walters is to the effect that
Winters never complained about Althiede to Walters until
October 5, at which time Walters directed Winters to
discharge Althiede.
Contrary to Walters' sworn affidavit Walters on October
4 did not direct Winters to warn Althiede that if his work
failed to improve he would be discharged. Admittedly,
Walters never spoke to Winters about Althiede until
October 5.
Contrary to Walters' sworn affidavit it was not on
Monday, October 7, that Winters told him that Althiede
rather than acknowledge that his work needed to improve
had stated he was doing his best. This alleged conversation
between Walters and Winters , according to their testimo-
ny, occurred on Saturday, October 5, when the Northern
Forest Products truck was returned. This inconsistency is
extremely relevant in assessing the reliability of Walters'
and Winters' story concerning mistakes, they attribute to
Althiede, brought to their attention when the Northern
Forest Products truck came back on October 5 which
started the chain of events which resulted in the decision
being made on that date to discharge Althiede. Walters'
affidavit places his conversation with Winters which led to
Althiede's discharge as occurring on Monday, October 7,
rather than Saturday, October 5. And, the whole tenor of
the affidavit is that nothing happened on October 5 which
influenced the decision to discharge Althiede.
For all of the foregoing reasons, I am convinced that the
testimony of Walters and Winters pertaining to events
which supposedly occurred on October 5 was a fiction
manufactured in an effort to cloak Respondent's real
reason for deciding to discharge Althiede. I find that their
testimony about what occurred that day is false.
G. Ultimate Findings
The General Counsel's position is that the evidence
establishes that the reasons advanced for Althiede's
discharge are a sham and that Althiede was discharged
because he engaged in union activities , particularly
because he filed a contractual grievance with the Union
over the Respondent's discontinuation of his premium pay.
Respondent takes the position that , even assuming that its
reasons for discharging Althiede do not withstand scrutiny,
the General Counsel has not proven a violation of the Act
because evidence is lacking to show unlawful motivation,
that is, there is no evidence of any other unfair labor
practices committed by Respondent or evidence of union
animus.
In my opinion , in agreement with the General Counsel,
the record demonstrates that in discharging Althiede the
Respondent was motivated by the fact that he grieved to
the Union over his loss of premium pay. In reaching this
conclusion, I have been influenced by the following
circumstances:
1. The timing of the discharge. Althiede was discharged
hard on the heels of Respondent's knowledge that he had
claimed defective workmanship.
9 Walters was unable to convincingly explain the blatant inconsistencies
between his testimony and his sworn affidavit.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grieved over his loss of premium pay and that the Union
intended to take the grievance to arbitration.
2. The reasons advanced by Respondent for discharg-
ing Althiede are false, they were fabricated to cloak the
real reason for the discharge.
3. In Althiede's 8 years of employment neither the
quality of his work nor his productivity was ever criticized
nor did members of management among themselves ever
speak critically about his work performance. 1,0
Despite this admitted lack of criticism about Althiede's
work performance for over an 8-year period, Walters and
Winters, during the hearing, attempted to portray Althiede
as a poor producer who took too long to finish his
assignments . Walters, however, was forced reluctantly to
admit that Althiede was never a "speed ball" but that
nevertheless this fact did not concern-Walters who paid
Althiede premium pay and testified that he regarded him
as a "very excellent" employee. Nor was Walters able to
convincingly explain why, if he felt Althiede was not
performing, satisfactorily, he never spoke to him about the
matter . Winters, at the hearing, depicted Althiede as a
"border line" employee who was "dogging it" and who
took an excessive time to complete 50 percent of his jobs
and who left his work station for no good reason. Winters,
like Walters, was unable to convincingly explain why, if he
was unhappy with Althiede's work, he never spoke to other
members of management about Althiede or spoke to him
personally. Winters testified he did not speak to either
Foreman Chrisman or General Manager Walters about
Althiede's poor productivity because he wanted to docu-
ment his case against Althiede. This is incredible because
in another part of his testimony Winters testified he kept
no documentation of Althiede's alleged poor productivity.
Moreover, the only jobs that Winters identified at the
hearing on which Althiede took too long were two in
number - the Used Truck and Northern Forest jobs -
hardly an indication that Althiede, as Winters phrases it,
was "dogging it." Finally Winters' explanation of why he
never warned Althiede personally about his poor prod-
uctivity - a man with Althiede's experience and knowl-
edge does not have to be warned - is equally as incredible.
4. Respondent during Althiede's 8 years of employ-
ment regarded him as a valued employee. This is evidenced
by the fact that Shop Foreman Chrisman asked Althiede to
instruct employees in their work and at all times during his
employment Althiede was paid premium pay, that is, his
hourly rate of pay was above the contractual rate of pay,
and he was one of about six or seven employees receiving
10 The sole, evidence that supervision, among themselves, spoke of
Althiede's work critically is the testimony of Office Manager Whitaker and
Service Manager Winters that within 1 week of Althiede's discharge that
Winters indicated to Whitaker he had a problem with Althiede which he
was documenting Both witnesses when they testified about this conversa-
tion were vague about the date. Winters was very vague and uncertain
about this conversation At first 'he testified, "I believe I probably
mentioned [the problem] to [Whitaker]," and dated it, in response to a
leading question , as taking place in September Whitaker was unable to
recall the date placing it as occurring within I week or 10 days of Althiede's
discharge Walters, however, testified that on either October 3 or October 4
Whitaker told him that Winters had mentioned he was dissatisfied with
Althiede Based upon my impression of Winters and Whitaker, I tend to
doubt that their description of this conversation was candid In any event,
as indicated by Walters' testimony, and the inability of Whitaker to date the
conversation with any degree of certainty, I find the conversation with
the highest premium pay. Respondent paid premium pay
based upon an employees attitude, work performance, and
productivity."
5. Althiede was the first nonprobationary employee
ever discharged by the Respondent.'
6. Respondent treated Althiede differently than other
employees in the manner it handled his situation when it
supposedly became dissatisfied with his work. In 1974
Winters was unhappy with- the work of mechanic Hollman
and, rather than discipline Hollman without any warning,
Winters sent two letters to the Union which in detail
described Hollman's failings. Winters' treatment of Alth-
iede stands in sharp contrast. He was abruptly notified of
his discharge without any prior oral Warning or criticism let
alone a written warning.i2
To recapitulate, I am of the opinion that the sham
reasons advanced by Respondent for discharging Althiede
establish that a motivating force in Respondent's action
was its desire to discharge Althiede because he filed a
grievance with the Union over' the discontinuation of his
premium pay. In the circumstances of this case, such an
inference seems appropriate under the rationale of the
court in Shattuck Denn Mining Corporation v. N.L.R.B.,
362 F.2d 466, 470 (C.A. 9, 1966):
Nor is the trier of fact . . . required to be any more naif
than is the judge. If he finds the stated motive for a
discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal - an
unlawful motive - at least where . . . the surround-
ing facts tend to reinforce that inference ... .
Here, the "surrounding facts" preponderate in favor of a
finding that the Respondent in discharging Althiede was
motivated by the fact that he grieved to the Union over the
discontinuation of his premium pay. The discharge
occurred hard on the heels of the Respondent's knowledge
that Althiede had filed the grievance and the Union
intended to press it through arbitration. Althiede was a
valued employee of 8 years' tenure whose work perfor-
mance had' never been criticized. He was the first
nonprobationary employee discharged by Respondent and
in discharging him Respondent treated him differently
than employee Hollman whose work was unsatisfactory yet
was first given a written warning rather than abruptly
notified of his discharge as was done in Althiede's case.
When all these surrounding circumstances are juxtaposed
Whitaker, during which Winters stated he had a problem with Althiede
which he was documenting, occurred immediately after Althiede had filed
his grievance against Respondent
it The premium pay, as noted earlier, was discontinued for all
employees, including Althiede, following the negotiation of the most recent
contract for the reason that Respondent's business no longer could afford
the added expense
i2 Winters' explanation for this disparity is incredible He treated
Althiede differently, he testified, because Althiede was an older more
experienced employee and, because of this, Winters needed to document his
shortcomings in more detail before sending a letter to the Union. The fact is
that in Althiede's case, unlike Hollman's, Winters made no effort to remedy
the work problem short of discipline Winters prior to notifying Althiede
that he was discharged did not verbally or in writing advise Althiede or the
Union that the Respondent was unhappy over Althiede's work perfor-
mance.
STOCKTON KENWORTH CO. 807
with the false reasons advanced by Respondent as its
motive for the discharge, I am convinced they establish, by
a preponderance of the evidence, that in discharging
Althiede Respondent was motivated by the grievance he
filed with the Union, and, by engaging in such conduct
violated the Act.13 N.L.R.B. v. H. C. Smith Construction
Co., 439 F.2d 1064 (C.A. 9, 1971) enfg. 174 NLRB 1173
(1969). Accordingly, I_ find that Althiede's discharge
interfered with his rights and the'rights of other employees
to file a grievance in violation of Section 8(a)(1). I also find
that Althiede's discharge discouraged his union activities in
violation of Section 8(a)(3).
In concluding that Respondent has violated the Act by
discharging Althiede I have carefully considered Respon-
dent's argument that the General Counsel has not met her
burden of proof because of a lack of union animus or overt
antiunion conduct.14 But, just as the showing of other
antiunion conduct is of, some support, but is not conclu-
sive , in establishing that a particular discharge was for
union activity, so the comparative absence of such conduct
is ,not conclusive in establishing that a discharge was not
for union activity. See Ri-Dell Tool Mfg. Company, Inc.,
199 NLRB 969 (1972), enfd. 486 F.2d 1406 (C.A. 7, 1973);
Stoffel Seals Corporation,- 199 NLRB 1084 (1972), enfd. 480
F.2d 923 (C.A. 5, 1973); Terry Industries of Virginia, Inc.,
164 NLRB 872, 874 (1967), enfd. 403 F.2d 633 (C.A. 4,
1968). A contrary rule would mean that an employer could
discharge employees who engaged in union activities which
the employer was displeased about if the employer
refrained from other acts of hostility to the union.15 The
ultimate question is,what was the reason for the discharge,
and the presence or absence of other antiunion actions is
an aid to answering the question, not an answer in itself.
On this record, I am convinced that the General Counsel
has proven her case by a preponderance of the evidence. I
find that the reasons given for the discharge are false ones,
and I infer from this fact and from the other surrounding
circumstances previously detailed, that the false reasons
were given and pressed in an effort to conceal the illegal
reason - Althiede's union activities, the filing of the
grievance . Cf. Shattuck Denn Mining Corp., supra.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdiction
herein.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging employee Theodore Althiede because
he filed a grievance and engaged in union activities in
connection therewith, Respondent has violated Section
8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative actions
designed to effectuate the purposes and policies of the Act.
As the discharge of an employee for union activities goes to
the very heart of the Act, I find that a broad cease-and-
desist order is warranted. N.L.R.B. v. Entwistle Mfg.
Company, 120 F.2d 532 (C.A. 4, 1941).
It has been found that Respondent unlawfully dis-
charged Theodore Althiede on October 7, 1974, Respon-
dent is, therefore, ordered to offer Althiede immediate and
full reinstatement to his former position or, if such position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and to make him whole for any loss of earnings
he may have suffered as a result of the discrimination
against him by payment of a sum equal to that which he
would normally have earned, absent the discrimination,
from October 7, 1974, to the date of Respondent's offer of
reinstatement, with backpay and interest computed in
accordance with the Board's established standards. F. W.
Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 16
Respondent , Stockton Kenworth Co., Stockton , Califor-
nia, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against, any
employees for the purpose of discouraging the filing or
processing of grievances or membership , support, and
activity in International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No. 190,
Local Lodge No. 428, or in any other labor organization.
13 It is not significant that the arbitrator decided Althlede was mistaken
in his interpretation of the contract For, "an employee does not lose the
protection of the Act .. simply because his understanding of the contract
turns out to be mistaken " N LR B v. H C Smith Construction Co, supra at
1064. This is especially true where, as here, Althiede's understanding was
not unreasonable and the Union subscribed to his understanding and
pressed his grievance to arbitration.
14 The sole evidence of overt union animus is President Walters' threat
made in 1971 to assault an employee for verbally grieving to the Union over
Walters' employing a nonunit employee - a janitor - to perform work
covered by the collective-bargaining agreement This hardly supports
Respondent's contention that the record does not reveal any union animus
on the part of Respondent. In reaching my decision in this case, however, I
have not considered this threat due to its remoteness from Althiede's
discharge.
15 I note that the record does not establish that Respondent in the past
exhibited no hard feelings toward employees who, as in Althiede's case, filed
a formal grievance with the Union charging Respondent with a breach of
contract Althiede's grievance was the first one of its kind filed by an
employee who, when filing the grievance, was still in the employ of
Respondent.
i6 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
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or
coercing its employees, in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Theodore Althiede whole for any loss of
earnings suffered by reason of his discharge, in the manner
set forth in the section herein entitled "The Remedy."
(b) Offer Theodore Althiede immediate and full re-
instatement to his former position or, if this position no
longer exists, to a substantially equivalent position, without
prejudice to seniority or other rights and privileges.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and , reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(d) Post at its place of business in Stockton, California,
copies of the attached notice marked "Appendix." 17
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's representative,, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States, Government
WE WILL offer Theodore Althiede his former job or,
if such job no longer exists, a substantially, equivalent
position, without prejudice to his seniority or other
rights and privileges.
WE WILL make Theodore Althiede whole for any
loss of pay and benefits he may have suffered by reason
of our discrimination against him together with interest
thereon at 6 percent per r annum.
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 to
discourage them from filing or processing grievances or
any other lawful union activity 'or to discourage them
from engaging in activities on behalf of International
Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 190, Local Lodge' No.
428, or any other labor organization of their choice.
WE WILL NOT in any other ' manner interfere with,
restrain, or coerce our employees in the exercise of their
rights under Section 7 of the Act.
STOCKTON KENWORTH CO.