Motor Truck Sales, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1975

217 N.L.R.B. 603 (N.L.R.B. 1975)

MOTOR TRUCK SALES, INC. ,
Motor Truck Sales , Inc. and Franklin P. Dixon. Case
7-CA-11310
April, 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On January 15, 1975, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, counsel for General Counsel
filed exceptions and a supporting brief.
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 con-
clusions of the Administrative Law Judge and to adopt
his recommended Order. -
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
The counsel for General Counsel 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
P,oducts, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,195 1). We
have carefully examined the record and find no basis for reversing his
fir dings
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on October 24, 1974, at Detroit, Michi-
gan, pursuant to a charge filed by Franklin P. Dixon, an
individual, hereinafter sometimes referred to as the Charging
Party or Dixon, and served by registered mail on Respondent
one or about the same date, and upon a complaint and notice
of hearing issued by the Regional Director for Region 7 on
September 10, 1974, which was thereafter also duly served on
Respondent. The complaint alleges that Respondent violated
Section 8(a)(1) and (3) of the Act, variously, by withholding
from the Charging Party certain wage rates and tool allow-
ances provided by the contract between the Charging Party
and Local Union 299, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
603
(hereinafter referred to as the Union), because the Charging
Party was not a union member, and that Respondent eventu-
ally discharged him and has refused to reinstate him because
he sought to join the Union and also because he sought cer-
tain benefits under the contract. In its answer to the com-
plaint, which was duly filed, Respondent denied the commis-
sion of any unfair labor practices.
For reasons which will appear hereinafter, I find and con-
clude that Respondent has not violated Section 8(a)(1) and
(3) of the Act in the particulars alleged by the complaint and
I shall, accordingly, recommend that the complaint be dis-
missed in its entirety.
At the hearing, the General Counsel and Respondent were
represented by counsel. All parties were given full oppor-
tunity to examine and cross-examine witnesses, to introduce
evidence and to file briefs. The General Counsel presented an
oral argument at the conclusion of the hearing but Respond-
ent waived this right.' A brief has subsequently been re-
ceived from Respondent and has been considered.
Upon the entire record' in this case including the brief
and from my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Motor Truck Sales, Inc., is and has been at all times
material herein a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of Michigan.
At all times material herein, Respondent has maintained
its principal office and place of business at 4201 Central in the
city of Detroit and State of Michigan. Respondent is, and has
been at all times material herein, engaged in the sale, service,
and distribution of new and used diesel trucks. Respondent'-s-
aforementioned business location is the only facility involved
in this proceeding.
During the fiscal year ending September 30, 1974, which
period is representative of its operations during all times
material herein, Respondent in the course and conduct of its
business operations sold, serviced, and distributed at its De-
troit, Michigan, place of business, products valued in excess
of $500,000 of which products valued in excess of $50,000
were shipped to said place of business directly from points
located outside the State of Michigan.
The complaint alleges, the answer admits, and I find that
Respondent is now and has been at all times material herein
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that
Local Union 299, International Brotherhood of Chauffeurs,
Warehousemen and Helpers of America is, and has been at
all times material herein , a labor organization within the
meaning of the Act.
I The Charging Party elected to have his case presented by the General
Counsel and did not participate in the hearing except as a witness
2 I hereby grant the General Counsel's unopposed motion to correct the
record.
217 NLRB No. 109
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III RESPONDENT'S RELEVANT HIERARCHY
The complaint alleges, the answer admits, and I find that,
at all times material herein, the following named persons
occupied these positions, and have been and are now supervi-
sors of the Respondent within the meaning of Section 2(11)
of the Act, and its agents: Richard Monahan, vice president
and director of sales; Bill Monahan, sales coordinator; and Al
Fetty; foreman.
IV BACKGROUND AND SEQUENCE OF EVENTS3
Richard Monahan and Bill Monahan are, respectively, fa-
ther and son.
Respondent and the Union are parties to a collective-bar-
gaining agreement effective from 1973 to at least 1976 which
provides, inter alia, 31-day union security; a wage rate of
$4.15 per hour for yardmen helpers (less $.50 for new hires);
a 30-day trial period for new employees; and employer-fur-
nished uniforms and a tool allowance. This last provision
specifies that:
A tool allowance of $16.00 per month shall be paid to
all employees who are required to have hand tools pay-
able on the 15th of each month.
The Charging Party, Dixon, began his employment with
Respondent as a day laborer in early May 1974 and was paid
at the rate of $2.25 per hour. As a day laborer, he was paid
daily in cash. In the beginning he worked cleaning the yard
and later cleaning trucks parked in the yard and helping the
yardman, Obie McCowin, to make repairs on the trucks. In
about mid-May both the Monahans spoke to Dixon about
taking regular full-time employment with Respondent. Dixon
declined these offers, however, pointing out that his financial
position at the time was such that he could not wait for 2
weeks to get his paycheck, as a regular employee would.
Dixon continued to work as a day laborer until about June
9 or 10.
At about the latter date he was again approached by Rich-
ard Monahan concerning full-time employment. On this oc-
casion Dixon accepted a regular job from Richard Monahan
at the rate of $3.25 per hour and the latter promised Dixon
a raise in September. Bill Monahan was present when these
arrangements were made.4
Dixon began working as a regular employee on about June
10 and received six uniforms at that time. He continued to
work in the yard performing essentially the same duties as
before -including minor truck repairs. When making such
repairs, he used the tools of the yardman, Obie McCowin.
3 All dates are in 1974 unless otherwise noted
4 I do not credit Dixon's further testimony that Richard Monahan, when
arranging to take Dixon on full time, asked Bill Monahan whether there was
any way they could keep Dixon out of the Union which Bill Monahan,
according to Dixon, answered by saying that this could only be done by
paying Dixon on a commission or set salary basis The statement was denied
by Richard Monahan I do not credit Dixon's version because his testimony
as to the most important event in the case-his interview with Richard
Monahan on July 15, the day of Dixon's eventual termination-is, in my
judgment, so unbelievable, in all the circumstances, that it colors his entire
credibility. Further, Dixon's discredited version of the interview in the July
interview relates to Dixon's claim, which I have discredited here, that Rich-
ard Monahan expressed a desire to keep Dixon out of the Union.
Dixon never used any of his own tools on the job nor was he
ever told that he would be required to use his own tools.
About 2 weeks after June 10, Dixon spoke to the then
union steward, John Stewart, who inquired as to Dixon's
wages. On learning that Dixon was being paid $3.25 Stewart
advised Dixon that Dixon should have started at $3.65 per
hour, as provided by the union contract.
Several days later Dixon spoke to, Bill Monahan about a
salary increase and Bill Monahan agreed to speak to Richard
Monahan about it. Bill Monahan thereupon went to see Rich-
ard Monahan and informed the latter that the starting rate
for "apprentices" was $3.65 per hour. Richard Monahan,
who does not normally hire employees, was unaware of this
but put the raise into effect. Hence the Charging Party began
receiving the regular contract rate of $3.65 per hour for a
newly employed yardman's helper sometime between June 24
and July 2 or 3.
On or about July 11, Dixon spoke to the new union stew-
ard, Darrell Ferguson, about joining the Union. The next day
Ferguson gave Dixon some papers to fill out to enable him
to join Dixon never completed these papers.
On or about' July 15, a Monday, Dixon came to work as
usual . Under the Union's contract, as,previously noted, tool
allowances are paid on the 15th of the month to all employees
who are required to have hand tools. Dixon did not receive
such a payment but learned from a fellow employee,. Bolton,
in the bar across the street from Respondent's place ^i` husi- _
ness that tool allowance checks had already been pas;e& out
that day by Al Fetty, the shop foreman. I conclude-that
Dixon learned this information when he was in the bar at'
lunchtime that day.' Dixon went back to Respondent's
place of business and asked Fetty if Fetty, had Dixon's tool
allowance check. Fetty replied that he did not have a check
for Dixon. Dixon then told Fetty that he, Dixon, would speak
to Bill Monahan about the matter.
According to Dixon, he then went to the office and asked
Bill Monahan, in the presence of the office secretary, Karen,
about his tool allowance check. Bill Monahan, according to
Dixon, made a telephone call and, after completing it, told
Dixon that Dixon was not eligible for the tool allowance
because Dixon was not in the Union.'
In the meantime it had admittedly been reported to Rich-
ard Monahan that Dixon had indicated a desire to join the
Union on the previous Friday when Monahan was on vaca-
tion. Monahan testified that he had no objections to Dixon
joining the Union and, indeed, he stated he has had no prob-
lems with the Union for 22 years. However, Monahan had
already been considering laying off Dixon when McCowin
came back from his vacation' and felt it unwise for Dixon
to spend $100 or more to join the Union at a time when he
5 Ferguson testified that Dixon was in the bar at lunchtime and Dixon
placed the events which followed as occurring in the afternoon that day.
6 While neither Bill Monahan nor Karen testified, I would attach no
significance to this comment, even if Bill Monahan made it, as Dixon claims
For, as will appear, the arrangements for paying tool allowances have no
relevance to the question whether Dixon was entitled to one And, as I will
find, he was not. Further, as will likewise appear, the payment of such
allowances to entitled employees "after" they loin the Union related to the
time of such payments and not the reason therefor
7 McCowin reported back to work the next day July 16. McCowin,
however, stopped at the bar across the street on his last day off, July 15, as
will appear
MOTOR TRUCK SALES, INC.
was going to be out of work. After learning of Dixon's inten-
tion to join the Union, Richard Monahan spoke to Fetty who
confirmed that Dixon's 30-day new employee trial period was
about up, which Monahan had not realized at the time. Rich-
ard Monahan then asked Bill Monahan to send' Dixon to
Richard Monahan's office. At about this same time Richard
Monahan also learned that Dixon had inquired of Bill Mona-
han about Respondent's failure to pay Dixon's tool allow-
ance.
At Bill Monahan's request, Dixon came into Richard
Monahan's office. Richard Monahan began the interview of
Dixon by noting that Dixon had been agitating about a tool
allowance. Monahan went on to explain to Dixon that Dixon
did not get a tool allowance. But Monahan did not have the
opportunity to pursue his explanation, for, at this point,
Dixon "blew up," said he didn't want any more of this kind
of stuff and wouldn't work for such a place. Monahan replied
that he might have to let Dixon go anyway but had first
wanted to "straighten" Dixon out on the tool money. No
further discussion of this or any other matter took place,
however, because Dixon thereupon asked for his pay and
walked out of the office.8
Shortly thereafter Bill Monahan gave Dixon most of his
pay. Before leaving the premises Dixon spoke to Ferguson
and told Ferguson that he had been fired.
After hearing that Dixon had been "fired," Ferguson
called the union hall and inquired what action he would be
expected to take as union steward. He was told by the busi-
ness agent that the Union required a copy of the discharge
ship.
Ferguson then sought out Bill Monahan and requested the
Union's copy of the discharge slip. Bill Monahan informed
Ferguson that Dixon had not been discharged but had quit.
Richard Monahan shortly thereafter told Ferguson the same
thing.
Ferguson recontacted Dixon who was still on the premises
and asked Dixon whether he had been fired or quit. Dixon
then admitted to Ferguson that Dixon "quit before he got
fired."9
Thereafter Dixon left the premises and repaired to the bar
across the street where he met McCowin, who was enjoying
the last day of his vacation. Dixon told McCowin that he,
Dixon, had quit Respondent. When McCowin asked for an
8 The foregoing findings as to this interview are based on the credible
testimony of Richard Monahan, as partially corroborated by Dixon to the
extent that Dixon testified that Monahan brought up the matter of the tool
allowance I do not credit Dixon's testimony that he was fired nor his
testimony that related his claimed discharge to his efforts to join the Union
oi to his efforts to obtain the contractual benefit of a tool allowance. My
reasons for discrediting Dixon rest primarily on the credited testimony of
Ferguson and McCowm, to be discussed infra, that Dixon later told Fergu-
son and McCown, separately , that he had not been discharged, but had quit
his employment with Respondent
9 Ferguson credibly so testified as to this incident. I do not credit the
general denial of Dixon that he did not tell any other employee that he had
quit instead of being discharged Dixon's facial expression changed notice-
ably when he made this denial.
In crediting Ferguson I have considered his sincere demeanor on the
stand, the undisputed sequence of the events of his conduct after Dixon at
flu st claimed to Ferguson that Dixon had been fired and, finally, the fact that
Dixon also later told another employee, McCowin, that he had not been
discharged but had quit. I have likewise considered Ferguson's testimony,
which I credit, that Dixon had been drinking at the bar across the street from
Respondent's place of business at lunchtime on July 15.
605
explanation, Dixon stated that he had just gotten mad and
quit. Dixon added that the rest of the employees were receiv-
ing tool money but none was being paid to Dixon. With this,
Dixon said, he had quit. Dixon specifically told McCowin
that the "old man" had not fired him.10
Dixon came into work the next day, July 16, turned in the
uniform he had been wearing the previous day and received
his final paycheck. He was not rehired by Respondent. Nor
has he been replaced, although Respondent, as of the time of
the hearing, has hired day laborers on two occasions to clean
up the yard.
Concluding Findings
Having concluded that Dixon quit it follows that he was
not discharged because he sought to join the Union or to
obtain the benefits of the union contract, as the complaint
alleges.
Apparently anticipating the possibility of such a finding,
the General Counsel further argued at the hearing that, if
Dixon quit, it was because he was constructively discharged.
That is, says the General Counsel, Dixon quit for the reason
that Respondent unlawfully deprived him of the contractual
benefit of a tool allowance."
I likewise reject this contention. Dixon was not entitled to
the contractual tool allowance, as Richard Monahan in-
formed Dixon before Dixon quit. Thus, Dixon did not use
any of his own tools on the job prior to his discharge. Nor
was he told that he would have to use his own tools when he
was hired. His situation was similar to that of Respondent's
gas station employees, who, although included in the contrac-
tual bargaining unit, are not paid tool allowances."
In view of the foregoing, I do not conclude that Dixon was
10 These findings are based on the credible testimony of McCowm in this
'regard McCowin impressed me as an honest witness who testified in a
generally straightforward manner. While he was not an entirely articulate
witness, I do not believe that this impaired his credibility Thus, the General
Counsel pointed out to him a discrepancy between his testimony that Re-
spondent's business slows down in the winter and a statement in his preheat-
ing affidavit that work is busy in the winter, he adequately explained this,
in my judgment, by his further testimony that when trucks are brought on
to the lot in the winter, he is "really busy" for only about 2 or 3 weeks.
As noted, I have discredited Dixon's general denial that he told anyone
he had quit rather than being discharged I likewise discredit his contrary
version of his meeting with McCown
I1 Citing Capital Electric Power Association, 171 NLRB 216 (1968).
i2 While there was testimony from both Ferguson and McCowin that
those employees who are given tool allowances do not receive such allow-
ances until after they join the Union, this does not alter the fact that the tool
allowances are only paid to those employees who are required to use their
own tools in their work.
In any event it appears that the payment of tool allowances to employees
entitled to such allowances "after" they have joined the Union is paid only
at that point in time and not because they have joined the Union
I reach this conclusion on the basis of an analysis of contractual provisions
for new employee trial periods and union security and the contractual pre-
conditions for other employee benefits Thus, under the contract, the 30-day
new employee "trial period" almost precisely coincides with the 31-day
grace period after which a new employee is required to join the Union. And
employees are not provided with seniority nor are health, welfare, and
pension fund payments made in their behalf until after they have completed
their 30-day trial period . In these circumstances it appears that the granting
of tool allowances "after" an employee has joined the Union is not because
he has done so but is rather for the reason that he has completed his 30-day
trial period which ends , coincidentally, at the point he is required to join the
Union and this same coincidence occurs in respect to the time frame for the
receipt of other benefits under the contract
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constructively discharged. Nor do I find that he was unlaw-
fully deprived of a tool allowance, as the complaint further
alleges.
This brings us to the remaining allegation of the complaint
that Respondent did not pay Dixon his contractual wage rate
from June 10, 1974, to July 2, 1974, because Dixon was not
a member of the Union.
I likewise perceive no merit in this allegation of the com-
plaint. For, as I have found on the basis of the credited
testimony, Richard Monahan did not state any desire to keep
Dixon out of the Union at the time Dixon was hired. Nor did
Respondent ever thereafter state any desire to treat Dixon
differently from other employees because Dixon had not yet
joined the Union. While it is true that Dixon received $3.25,
which is less-than the contractual wage rate of $3.65, for the
first 2 or 3 weeks of his full-time employment, this was, I
conclude, due to a mistake on the part of Richard Monahan,
who does not normally do the hiring of employees and the
mistake was readily corrected by Monahan when it was called
to his attention by his son, Bill.13
I shall, accordingly, also recommend dismissal of this alle-
gation of the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
the Union is a labor organization both within the meaning of
the Act.
2. Respondent did not discharge Dixon, actually or con-
structively, in violation of Section 8(a)(3) or (1) of the Act.
3. Respondent did not deprive Dixon of wages or other
benefits provided in its collective-bargaining agreement with
the Union in violation of Section 8(a)(3) and (1) of the Act.
[Recommended Order for dismissal omitted from
publication.]
13 While Dixon claimed that the salary increase to $3 65 was a raise which
he requested of Bill Monahan, the fact remains that the new rate was
precisely the rate called for by the contract for a new employee in Dixon's
classification Further, Dixon was given the increase at a time when he was
not a union member and had not yet sought to become one