A.O. Smith Corp.

A. O. SMITH CORP. A. O. Smith Corporation and International Federa- tion of Professional Technical Engineers. Ircal 167. AFL-CIO. Case 38 C(A 3059 May 31, 1978 DECISION AND ORDER BY CHAIRMAN FANNING ANI) M' ' BHIU RS Pi Ni lI ) .AND TRt'I.SDI\I - On February 21. 1978, Administrative Law Judge William F. Jacobs issued the attached Decision iII this proceeding. Thereafter, the Charging Part\ filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(hb) of the National Labor Relations Act, as amended, the Nat- 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 briefs and has decided to affirm the rulings, findings,' and conclusions 2 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 Re- lations Board adopts as its Order the recommended i ]'he Charging Parts has excepted to iertlin credlhililt findings made hb the Adminlstra.tie I.as Judge It is the Board's cstablished pohlis not t overrule an Adnrlnistratie I .a. Judge's resolulions : sith respect to redlbihil- ts unless the clear preponderance eof all of the rele.lan evidence corisinice us that the resolulions are incuirrecl Srtanldarl Dfir H ill Proerr' . In, 9I NLRB 544 (195), enfd X188 F.2d 3h2 ( .A 3 l1501. We hase ctarcfull, examined the record and find fino basis for reecrsign his finding, While Superlsisor FEd Pflaum is alleged to ha.c had a ciron.era.tinn uith emploiee Gene ('Casins during the peiiood betweern December 1I and 22 wherein Pflaum allegedls told (Cas.ins. "You're going to have to plas hball with these guss Y ouise made them i mld YSou'e gone to the unitm. You just has.e to learn that the)'re the hosses and sou'se got to do whal's right, what theN think." Pflauni denies nmking sutch sitlemients The Admini,tra- tive Law Judge credited Pflauni's denial bhut stilted further that even if the alleged comments had been made h, Pflaum, "It would not necessa;ril! follow that such remarks had ans conniecrtin. whaltseser. s ith the decismin of higher management to take the actiorn agaltrst ('a;ins which it eeirntuall3 did.. I would nolt n light of the surriouniding circumstances find such remarks imputable tii Respondent for the cslidenlars purpose of deterriin ing that the demntion was discrlminanoris niotiaoled '' In adopting the Ad- ministratise Law Judge's recommendation thait the complaint he dlmsrissed in its entiret'. uwe rels on the crediting of Pflaum's denial that he made the alleged statements. and not on the alternuitle rationale presented in the Administrative Law Judge's Decision as outlined above. Although. under the terms of the colletise-h;targaining agreceniti (a- sins was not required to accept o;erlime work, the Administratis.e I iav Judge observed thalt ('sins had refused to work oserinme and concluded that such refusal reflected on his atlitude to. ard his ,sork and %als : leg;ti- mate subject oi criticism Wue do nrot in anir ii, rcls on ('a islri ' refusal to work overtinme in finding thait (Ca\ili' denimtion wis a result of hi, in llhllt tlI perform assigned tasks and not of his uiiOn or other pritecced alil lits We rels instead on the 'other factoirs discussed ill Ihe Admlnistranse I av. Judge's Decision Order of the Administrative Law Judge and herebs orders that the complaint herein be. and it hereby is, dismissed in its entirety. DECISION STAIF MENT OF THE CASE WIt LI AM F JA(OBS, Administrative Law Judge: This case was heard before me on May 10, 1977, at Bourbonnais, Illinois. The charge was filed on January 24, 1977, by American Federation of Technical and Professional Engi- neers, Local 167. AFL-CIO,' herein called the Union. Complaint issued March 18. 1977. alleging that A. O. Smith Corporation. herein called Respondent, violated Section 8(a)( ) and (3) of the National Labor Relations Act. as amended, by intimidating an employee in order to keep said employee from engaging in union and protected concerted activity and by demoting employee Gene Cavins and refusing to reinstate him to his former position because he engaged in protected union and/or concerted activity. The answer denies the commission of any unfair labor practices and, though it admits demoting Cavins, affirma- tively pleads that Respondent did so based solely upon Cavins' poor work performance. All parties appeared at the hearing and were afforded full opportunity to be heard and present evidence and ar- gument. General Counsel and Respondent filed briefs. Upon the entire record, my observation of the demeanor of the witnesses and after giving due consideration to the briefs, I make the following: FINDIN(;S OF FACd I JUIRISDICTION AND L.ABOR ORGANIZATION The complaint alleged, the answer admitted, and I find that at all times material the Company was and is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and the Union was and is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES Respondent is a New York corporation with offices and facilities located, among other places, in Kankakee, Illi- nois. where it is engaged in the manufacture and sale of water heaters. During all relevant periods, Respondent rec- ognized the Union as the exclusive collective-bargaining representative of its professional and technical engineer employees, a unit in which the alleged discriminatee. Gene Casins, was included. Cavins was first employed by Respondent in 1955 as a production worker. In 1968 he transferred into the labora- tory and worked there until November 1973 as a devel- opment laboratory technician-junior. His duties in that po- sition included the setting up and performing of a variety i he name of the Itnion appears as amended at the hearing. 236 NLRB No.66 605 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of tests on water heaters according to established test pro- cedures and recording the test data obtained. These duties were assigned to him by development laboratory techni- cian-senior or by product development engineers. The tests performed were in accordance with the requirements of the American Gas Association (AGA). Cavins' work as a development laboratory technician- junior was satisfactory.2 He received periodic merit reviews as a result of which he was awarded wage increases. In November 1973 Respondent laid off 6 or 8 of its 12 labora- tory employees including all of its junior laboratory techni- cians, Cavins being one. In June or July 1975 Respondent decided upon the insti- tution of two new programs. The first program was an AGA monitoring program which required the monitoring of heaters by testing them on a periodic basis to assure the AGA that the heaters being built could be certified. This job, it was felt, could probably be performed by a devel- opment laboratory technician-junior since the testing re- quired was similar to that which had been previously per- formed by that classification of employee. The second program was entitled the "Efficiency Labeling Program" and reflected Respondent's commitment to the Federal Government to increase the efficiency of its products by a certain percentage by the year 1980. The job connected with the Efficiency Labeling Program required that the em- ployee performing the job not only test the water heaters to determine their current efficiency but to make recommen- dations whereby their efficiency might be improved in ac- cordance with the requirements of the program. The duties to be performed by the employee responsible for the Effi- ciency Labeling Program included not only testing the heaters but also independently determining what tests were to be required, then later analyzing and evaluating the tests and making recommendations for product changes based on his findings. It was therefore determined that the em- ployee responsible for the Efficiency Labeling Program should be classified as a development laboratory techni- cian-senior, a classification the duties of which traditional- ly included like responsibilities. Inasmuch as the duties connected with the new AGA monitoring program and the information to be gleaned from the performance of those duties would conveniently enable the employee conducting the tests to use the data so obtained in performing the duties connected with the Efficiency Labeling Program, it was deemed advisable to combine the two jobs and hire or recall one employee to perform all of the functions con- nected with both programs, the single job to be assigned the classification, development laboratory technician-se- nior, job grade F. This determination was made by Snave- ly, manager, engineering services, Robert Cook, manager. product engineering design and developments, and the per- ? Although (aills' technical work was satisfactory, according to Rohert Snayely. manager, engineering services., for a period of time prior to hi, layoff he demonstrated a reluctance to follow company policies designed ti increase efficiency or perfect safetv conditions. Io Snavely. (C;lins ap- peared to be a spokesman for those employees who were antagonistic i- ward changes in polic. Snavely for this reason. considered (Cavins ":IiI companNs prior to his Ilaoff. 3 Ihe titles of the sa aiTous members of management discussed hereio are in accordince with a. stipulation agreed upon it tile hearing. sonnel department. Similarly, it was determined by the same individuals that Cavins should be recalled to fill the new position. This decision was based on Snavely's famil- iarity with Cavins work over the previous 8 years. The Union was advised of Respondent's decision both as to the classification of the new job and the fact that Cavins had been chosen to fill it. A few days after it was decided to recall Cavins; he was contacted by the personnel department and advised to re- port to Snavely for an interview. At the interview,4 Snavely advised Cavins that he was being recalled to fill a new job created as a result of new AGA requirements and that monitoring heaters would be one of his duties. Snavely in- formed Cavins that he was qualified to do the work since the monitoring was similar to the work he had done before his layoff but was also advised that if he had any problem with the monitoring, he should report the matter. He was also told that he would be expected to make recommenda- tions on how to remedy any problems arising from defects in the heaters recognized during monitoring in order to improve the efficiency of the water heaters. Since it was a new job, Snavely advised Cavins that it should first be or- ganized and that in connection with this, he should let Snavely know if he needed additional equipment or if changes would be required in the work area. This advise, according to Snavely, was particularly relevant in connec- tion with the Efficiency Labeling Programming which, he testified, he fully described to Cavins. With regard to this program, he informed Cavins that the Efficiency Labeling Program was a new requirement imposed on the Company by the government. He made a copy of the program, as contained in the Federal Register, available to Cavins and indicated three or four places in the Register which it would be necessary for Cavins to study and absorb. He told Cavins that he would have to become familiar with the calculations and requirements contained therein and that this would be part of his job. He then reminded Cavins that the new job involved a wage increase, that he would be working directly for Snavely, and that he should not permit outside interests to interfere with his job. Snavely cau- tioned Cavins that he expected his attitude to be one of a productive nature. Cavins replied that he knew what was expected of him and that he thought he could handle the job. When Cavins reported to work on his new job, several days after the interview, he found only one or two senior laboratory technicians and two product development engi- neers employed. He was the only employee recalled who had been classified as a development laboratory techni- cian-junior.5 As Cavins understood and initially performed the AGA monitoring portion of his new position, the job consisted of pulling units either from the assembly line or from the I lhe descriptionl of the interlies is based on Ihe credited testimony of Snavely. whose description thereof wais fal more complete and whose mem- ,rs appeared to be hettller than that of ( ains (.a'ins could niot recall sev- eral aspects of the interview Whcre the lestinion) of the two are in conflict. Snasel, is credited I rwo or three months after ( alins' lecall. a second development labora- itrL technicilan-junior grade was recalled I he jobs pre iously performed by decelopment labhorilator techi lClllns-ilu illor were noi longer extant 606 A. O. SMI1'H CORP. warehouse and bringing them back to his work station. He would then obtain the blueprints for the particular unit pulled and check the unit out against the specifications in order to make certain that the product had been manufac- tured in accordance with the blueprints. He would next set up the unit in working order as it would be set up in the customer's home or commercial establishment and run a series of tests to make certain that it operated safely and not be a hazard to the potential purchaser. The various tests performed were necessary for the unit to pass the AGA requirements for certification. After completing the tests, Cavins would then fill out a form indicating the model tested and the various tests performed thereon. Ac- cording to Cavins, if he found discrepancies, it was hisjob to make the necessary changes or to advise someone else of the problem so changes could be made in order to make the unit satisfactorily operable. After completing the work on the unit, he would return it to the assembly line or recarton it for redelivery to the warehouse. The described operation was performed by Cavins on all 30 to 35 differ- ent models produced by the Company, two at a time. whenever possible. Cavins was required to keep a log indi- cating the work that he had performed. Although the work involved in monitoring the heaters was fully spelled out in the AGA manual and Cavins was familiar with the procedure both from having access to the manual and from previous experience. he nevertheless ad- mittedly had difficulty getting the job done. If all went well, he could do the complete battery of tests required to monitor one unit in a day. But. according to Cavins. his various other duties usually interfered with his getting around to hooking up more than one heater at a time and with his meeting his own and the Company's goal of moni- toring at least one water heater per day. If he did take the necessary time to hookup two water heaters simulta- neously, as was necessary to meet the production require- ments, he was unable to perform his other duties. Hooking up two heaters, monitoring one of them, and filling out the necessary forms would be all he could accomplish. According to Cavins' own admission, between August 1975 and February 1976 when he received his first merit review, he was not performing the necessary: tests on even one water heater per day. He testified that it takes from 6 to 8 hours to test a water heater plus additional time to set it up and have it heat up before testing is possible. During the warmup period Cavins would do the paperwork re- quired and try to get a second water heater hooked up. According to Snavely, the actual testing of a heater takes only one hour. Snavely thus intimated that although the monitoring of only one heater per day might be satisfac- tory. the warmup time involved should have enabled Ca- vins to perform additional duties. He testified that the monitoring of water heaters was the only duty of an' con- sequence assigned to Cavins from August 1975 to August 1976 and whereas other employees had done this tipe of test prior to August 1975 and had performed other duties as well. Cavins' total production during that year amount- ed to only 38 residential heaters and 5 commercial heaters. an unsatisfactory number. Although Cavins testified that his production was considerably more than 43 water heat- ers, he admitted that his production was not as hiph ;is he would have hoped. less than one unit per day. but insisted that the lack of production was due to his being assigned tasks over and above his monitoring duties. He complained that he needed a helper. In any case, whatever the reason. It appears patently clear that the number of units moni- tored by Cavins following his recall was not satisfactory either to Snavely or Cavins. In addition to his dissatisfaction with Cavins' numerical production. Snavely found that Cavins was not testing the entire line of water heaters as he was expected to do. Ac- cording to Snavely. Cavins should have tested a wide vari- ety of different types of heaters whereas he continued to test the same type with a great deal of repetition. This, Snavely testified, was due to a lack of organization. With regard to the Efficiency Labeling Program for which Cavins was also responsible, Snavely testified that the program was first devised during the Ford administra- tion, with the objective being the scheduling of a particular time period during which improvements would have to be made in the overall efficiency of all appliances manufac- tured, including water heaters, so that by 1980 each appli- ance would be consuming less energy than it had been consuming as of the time the program was initiated. The program. though initially voluntary, was to become man- datory if unsuccessful as a voluntary program. Respondent initially elected to try to meet the requirements of the Effi- ciency Labeling Program by means of incremental im- provements and was, in fact, successful in producing a line of water heaters that were, as hoped, more efficient than those produced by its competition. As a consequence, A. O. Smith was permitted to afix a special label to its product, attesting to this fact. 6 Cavins was made responsible for the Efficiency Labeling Program because it was felt that as long as he was running tests on the Company's water heaters as required by the AG(A monitoring program, he would be the individual in the best position to obtain firsthand knowledge of what the shortcomings were of each of the models tested, and would be able to make appropriate recommendations to improve the product as required by the Efficiency Labeling Pro- gram. According to Snavely. however. Cavins did nothing with regard to the Efficiency Labeling Program, despite being instructed by Snavelv as to what was expected and despite being furnished with the necessary instructions as contained in the Federal Register and other materials. Al- though Snavely testified that he brought up with Cavins his failure to adequately conduct the AGA monitoring pro- gram or perform the duties connected with the efficiency program, and occasionally asked him why there were no heaters on the test bench or why there was so little activity going on in his area. it appears that he did not pursue the matter with an. great diligence but permitted Cavins to continue to perform his duties in connection with both pro- grams in a desultory manner. On one occasion Snavely asked Cavins what he had done with the Federal Register and other materials he had furnished to him and Cavins replied simply that he had filed them. Snavely again, did not pursue the issue but, according to his testimony, decid- I, ,,f A u.. i 1 7' a number oif Siiiles hid mte the eIffm p Jen I el : Tcirartmnle for infl~o anil 607 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed to wait, assuming that ('avins would get around to working on the program when he found time. He never did. Cavins' testimony with regard to his work on the effi- ciency program tends to support Snavely's description of his work. When asked directly if he did anything on the Efficiency Labeling Program, Cavins replied. "I'm not fa- miliar with the Ilfficiencv Labeling Program." Elsewhere during the hearing C'avins was asked if he ever worked on the Efficiency Labeling Program and he replied, "If I did. I don't recall. It's very vague. It's vague to me, the labeling efficiency program" (sic). When asked if he ever made any suggestions in accordance with his duties as required by the program. Cavins testified: I was kept busy trying to make corrections. Very often a simple part from the line would be wrong and I would be busy making it right, and at this point, the outside work that kept coming in didn't give me a chance to do the job the way I should. This "outside work" to which Cavins alluded, referred in part to various tests which he was, from time to time, re- quested to perform by various members of management in connection with the government's efficiency program. To this limited extent, therefore, Cavins participated in the ef- ficiency program, albeit not to the degree or in the initiat- ing sense envisioned by Snavely at the time he apointed Cavins to the position of development laboratory techni- cian-senior. In addition to these standby government exer- cising tests, Cavins was required to perform various other types of tests, dip tube tests and field tests which he con- ducted on the average of one per week or one every 2 weeks. Cavins testified that at the time of the interview he was never advised that he would have to conduct any tests over and above those required by the AGA monitoring program and that these additional tests interfered with his adequately performing his work on the AGA program. C(a- vins also made clear in his testimony, that although he recalled receiving instructions and materials on the Effi- ciency Labeling Program, he never really understood what it was all about. lIe denied that Snavely in any way empha- sized the importance of the Efficiency Labeling Program to him at the time of the recall interview. From the testimony of both Snavely and Cavins it is clear that C'avins did not perform the duties required of him under the Efficiency Labeling Program during the first 6 months following his recall. Whether his failure to per- form was the result of too many additional or "outside" assignments, Snavely's failure to emphasize the importance of this aspect of Cavins' job at the time of recall and there- after, or simply Cavins' lack of comprehension of the re- quirements of the job is not that clear from the record, although I am inclined to believe that Cavins never did fully appreciate what was expected of him. Whatever the reason, it is patently obvious that Cavins did not ade- quately perform the duties assigned him in connection with the Efficiency Labeling Program any better than he did, at least to Snavely's satisfaction, his duties in connection with the AGA monitoring program. On February 18, 1976, Cavins received his first merit review. It was conducted by Snavely, his immediate super- visor, orally. [he subject matter of the oral merit review was written out on a merit review sheet about a month before the oral review took place, According to Snavely, during the oral merit review, he told Cavins that he did not think that C'avins had realls dug into the job or mastered its basic requirements. Hie advised C'avins that, in his opin- ion. the job had not been properly organized. Snavely felt, as indicated above, that C avins had not done a sufficient volume of AGA monitoring and had done nothing with regard to the Efficiency Labeling Program. In his opinion, the job was deteriorating and he advised Cavins of this fact. Despite Cavins' failure to produce in accordance with the volume requirements of the AGA program or to dem- onstrate the self-motivation necessary to the successful im- plementation of the Efficiency Labeling Program. Snavely decided to recommend that Cavins be awarded a $15 merit increase in order to encourage him to put forth further efforts. He felt that to dens Cavins an)' increase would be too demoralizing. Snavtcl's written review of Cavins work dated February 18, 1976. accurately supports his testimony concerning his oral criticism of Cavins. Cavins admits that Snavely advised him during the first merit interview that although Cavins was being given a $15 merit increase, Snavely was not really satisfied with his work. Snavely complained that Cavins did not properly coordinate his work and pointed out that Cavins had failed to prepare a chart, as had been requested by Snavely, the purpose of which wvas to indicate what AGA tests had been performed. Cavins replied that he already had the data and he had another employee working on the matter but had not had time to complete the job because of the assign- ments he had been receiving from other departments. The chart was eventually produced and utilized although Ca- vins was later criticized for not keeping it up to date. Again Cavins advised Snavels that he was unable to keep the chart current because of other assignments. Still later Ca- vins was able to bring the chart up to date. At the time of the merit review, Cavins complained to Snavely that he was not satisfied with the review, noting that he had always received top money in the past and was amazed that he was only receiving the lesser amount on this occasion. ('avins stated that he had not been properly evaluated. Snavely replied that Cavins' excuses for not completing more production were not acceptable because he had a responsibility to overcome the problems inherent in the job. Snavely informed Cavins that he expected im- provement by the next review. Whether Cavins' failure to perform his newly assigned duties was the result of too many assignments or because he was not qualified to do the job expected of him, the fact remains that Cavins' performance was not satisfactory as far as Snavely was concerned and this fact was reflected in the Februars 18 merit review. Shortly after the February 18 merit review, on February 23,. C'avins was assigned to do a stack emission test, known as the NOX test. I'he target date for the test was to be April 1, 1976. The test is performed by inserting into a combustion chamber test tubes containing various chemi- I he date whlch appeairs on the job assignment sheet. (a3vins testified halt he was asigned the test in Novnember 1975 tie is apparentl? In error 608 ,A. O. SMI IH (CORP. cals. Depending on the amount and type of pollution emit- ted, the various powders contained in the tubes chalnge color. By analyzing these powders, the amount and l pe of pollution emissions can be determined. I he NOX test was not one that was frequently performed at the Kankakee plant but it had been conducted several times within the previous few years. There were engineers still emplox ed at the plant who had performed this test in the past and who were available for consultation. When Snavely assigned the NOX test to C'axins. a test kit was available. This kit contained thorough instructions on how to perform the test. Inasmuch as Snavel ' was not certain whether or not the shelf life of the chenlicals neces- sary to perform the tests had expired, he told ('avins to contact the manufacturer of the test kit to replace the pow- der if necessary. and thereafter to conduct the test. Accord- ing to Snavely, Cavins never reported back to him on whether the test was operative, nor did Snavelv receive ans test results. Rather, after discussing the NO()X test with Ca- vins on several occasions, it became obvious to Sinaieil that Cavins was not going to perform the test. so he agreed that the test could be run by one John Eising. an emplocee at the Milwaukee facility of the company who was familiar with the test and whom Cavins had contacted conceining the matter. Authorization for [ising to perform the test was apparently given on April 20 and the results were re- ceived in May. Although the test could have been run in one or two days and the company would have permitted up to 40 hours for someone to first familiarize himself with the test, then perform it. in this instance, it took from Februars 23 until some time in May, from the time the test was first assigned to Cavins until the time the results were receixed from Milwaukee. According to Cavins, the NOX test had never been per- formed before at the Kankakee plant and when he was first assigned the test. it was the first time he had ever heard of it. Since Snavely advised Cavins at the time of the assign- ment that the test kit was probahly not complete. ('avins checked out the equipment and then reported back to Snavely that his suspicion was correct and that additional materials would have to be obtained before the test could be performed. A day or two later, Snavel gavse ('avins a coupon to send away to the manufacturer to order addi- tional materials. According to Caxins, he sent the order in but never received any acknowledgement from the manu- facturer concerning the matter. tie subsequently adxised Snavely that he had received no repl' from the manufac- turer but was told by, Snavelv that the test, nevertheless. had to be done. Cavins testified that at this point he was "at a loss." that "really. I didn't understand the signifi- cance of the test." Cavins then discussed the matter with one of the other employees. Bob Hollingsworth. confiding that he was assigned to do the NOX test but did not know how to do it. Hollingsworth replied that he and two other employees had been assigned to conduct the NOX test on previous occasions and that none of them had succeeded in getting anything done.' After stating that he did not believe that the company had the right equipment to perform the ' Nine of ihe empioiee. menrioned iere called to ietifs Il thi inaticr Hollingssorth iss a. steisrd ai the lime of the irir o. Nox test. Hollingsworth suggested that Cavins contact John Fising in Milwaukee since Eising apparently had ex- perience with the test. Pursuant to Hollingsworth's sugges- tion, ('avins contacted Lising and explained the problem. IHe asked ising if he would run the test and Eising agreed to do so. Subsequently. Casins advised Snavely that Mil- waukee would run the test and Snavely appeared satisfied. (savins testified that this was the last that he heard about the matteir. F ronm the testimnony of Cavins and Snavely it is quite clear that Caxins was assigned the NOX test to perform ind that he failed to carry out this assignment. Undoubt- edl!. Snasely would have preferred that Cavins conduct the test and was dissatisfied both with Cavins' failure to produce as well as his procrastination with respect to mak- ing progress toward accomplishing the work by one means or another. On the other hand, according to Snavely's own estnimonx . there were other employees capable of doing the NO( test, and if time were of the essence, he could have assigned the test to one of the employees more familiar with the test than ('a ins. This he did not do. When Cavins adtised him that L:ising was willing to perform the test, Snaxely agreed to this arrangement rather than have the job reassigned to someone at the Kankakee plant. I con- clude that although Snayely was dissatisfied with Cavins' failure to perform the NOX test, and that this was one more example of his being unable to perform the tasks expected of him. SnavelY did not consider this matter of extreme importance and it would have been forgotten but for the other failures in Cavins' job performance. both at that time and subsequently. In April or Max 1976. the Company witnessed a wide- spread problem with residential and commercial boilers. with specific reference to the pilot outage. Just prior to the time that the problem first arose, the Company had changed its supplier of thermocouplers and it :was suspect- ed that these thermocouplers were the problem with the boilers. Ihe products service division therefore sent several boxes of thermocouplers in to Cavins to test and evaluate. According to Snavelx. Cavins subsequently reported them all operational. Since the Company failed to resolve the problem with the boilers, Snavely had Pflaum 9 recheck the thermocouplers which he found to be defective. As a result of Pflaum's findings, the Company changed its entire pro- duction bx substituting a different kind of thermocoupler. ('avins' failure to discover the defects in the thermocou- plers was brought to his attention by Snavely in May 1976. According to Cavins, in April 1976 he did, in fact, do a lot of testing of thermocouplers. These outside jobs, as he ternied them, were one of the reasons for his failure to do more of the ALGA monitoring. When he tested these ther- mocouplers, Cavins testified, he found certain things wrong with them. During cross-examination, however, he was show ii a letter. "' which he acknowledged as one he had sent to Snavel,. in which he stated that the thermocouplers were operational. Cavins testified that he had checked the thermocouplers for "dropout" and for "metal voltage." He explained that these were the only tests he knew how to do x' llxllhcl IcCl1nllill 11 u i ill Junlc 1976 hbecan e ('.,lin, supcrsiir t he l¢ltIr ,as not ilterod i lilnr e idcnce 609 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and added somewhat defensively that "no one showed me any different." With regard to the thermocoupler tests, I find that Snavely did, as he testified, find fault with Cavins' work, that he voiced displeasure at the time with Cavins' perfor- mance and that his criticism of Cavins' work was genuinely based upon his belief that Cavins had improperly conduct- ed the tests. The criticism was honestly arrived at, free from discriminatory motivation. In June 1976, Edward Pflaum was appointed supervisor in the laboratory. Thereafter, he both supervised and eval- uated Cavins' performance. He testified that during the pe- riod that he supervised Cavins' work, he would ask him once or twice each day how he was doing and each time Cavins would reply that he was doing "OK." Pflaum testi- fied that in his opinion Cavins was confused by the job, probably because he had never had the opportunity to work on all of the products in the laboratory and therefore was not sufficiently familiar with the products to properly perform his job assignment. Pflaum's criticism appears to be well founded in light of Cavins' performance on the NOX and thermocoupler tests. In July 1976, following the appointment of Pflaum as supervisor, the laboratory underwent a certain amount of reorganization. At this time, one of the laboratory employ- ees, Chuck Yocum, left the department. Yocum had previ- ously been taking care of AGA correspondence and when he left Snavely asked Cavins to take over this job. Prior to Yokum's leaving, for about a month, Cavins worked with Yocum to learn how to perform his newly assigned duties. These duties required that Cavins contact the AGA and apply for test dates in connection with retesting the Company's boilers to obtain recertification of them by the AGA. The then current 5-year certifications were sched- uled to expire on December 31 and it was Cavins' job to submit data and apply for test dates in time so that certain models could be recertified before their certifications ex- pired. More specifically, Cavins had to send letters to the AGA laboratory identifying the models that the Company wanted to have certified and at the same time requesting a date for testing the models. The AGA was then to respond by assigning a date by which a representative heater would have to be received there at the AGA laboratory for test- ing. Once the date was received from AGA, Cavins was to make certain that the heaters were made ready for ship- ment. Submittal forms identifying the details of each model, draft outlet size, types of controls, etc., had also to be completed. Although the heaters to be sent to AGA did not have to be tested, as such, before being sent, it was, nevertheless, necessary to be certain that those heaters cho- sen for testing at the AGA laboratory were good heaters capable of being recertified. According to Snavely, during the period that Cavins was involved in the recertification program, he was not expected to continue testing water heaters under the AGA monitoring program because the correspondence connected with the recertification was considered to take priority. It was estimated that getting prepared for the AGA recertification would take from 4 to 6 weeks after which C avins was expected to return to moni- toring the heaters as before. According to Cavins, he was first advised of his new duties when called into the office by Snavely and Pflaum. Unlike the testimony of Snavely, Cavins testified that the AGA correspondence was to be done in addition to all of his other duties " and that when he objected that he had too much work, both Pflaum and Snavely assured him that they would help him out, whereupon Cavins accepted his new assignment. As to the work to be performed under the recertification program, Cavins testified that the actual submission of the forms would have been a simple matter but for the fact that the marketing board, which consisted of management personnel of high rank, kept changing its requirements about what was wanted in the twenty or thir- ty models being recertified and these changes, in turn, re- quired changes in the forms being submitted.'2 Cavins tes- tified that he was continuously being frustrated because ever), time he made out a form for submission to the AGA laboratory the marketing board would require him to make a change on the form. Implicit in Cavins' testimony con- cerning his frustration over the required changes is the ad- mission that he was, in fact, having trouble performing the duties assigned to him under the recertification program. In addition to the correspondence required of Cavins under the recertification program. Cavins had the addition- al duty of answering criticisms directed at A. O. Smith products by the AGA, either through correspondence or as a result of occasional in-plant inspections of units by AGA inspectors who determined that the units in question did not meet specifications. According to Cavins, it took a great deal of time to research the problems discussed in these criticisms, just to find out what the complaints were about. Similarly, Cavins had trouble determining, in con- nection with these criticisms, what the Company itself ac- tually wanted. He testified that he was frequently on the telephone with the AGA trying to iron out problems brought to his attention and trying to talk the AGA out of their criticisms by phone. When he failed to talk the AGA out of the criticisms which were brought to his attention, he would then have to research the problem and handle it by letter at a later time. Cavins testified that the handling of product criticism should have been the job of members of management above him rather than his. He also com- plained that some of his difficulty with the job was the result of his predecessor, Chuck Yocum "fouling up on some of the jobs." The handling of these complaints re- quired not only researching the problem to determine what was wrong, but also determining who was responsible for the defect and thereafter straightening the matter out. It seems clear from Cavins' own testimony that he did not feel adequate to performing the duties connected with the answering of correspondence dealing with criticism of the Company's products inasmuch as he stated on the rec- ord that the job should have been performed by his superi- ors. Based on Cavins' own testimony, I tend to agree with a C ains initiall3 tesuified ihalt he continued occasionally to test water heaters during this period. .;lter he testified that he did not have time to test heaters once he had undertaken the AGA correspondence program Finall)y ('Uains testified that he was not sure whether or not he tested waler heaters after Juls 1976. that he could liot renmember Where the lestimonv of Snave- Is arid (a:vins s in conflihct. Snasel is cledited · Snavels lestified that the forms which are sent to the AGA are not sublect tio nl:rketing boahrd changes 610 A. O. SMITH CORP. the conclusion reached by Pflaum, that Cavins was con- fused about the job and it may well be, as Pflaum suggest- ed, because the criticisms received referred to many of the Company's products with which Cavins had little or no familiarity. If he was not familiar with many of the prod- ucts produced by the company, he could not possibly un- derstand the basis for the criticism leveled at the product and it would therefore have taken him an inordinate amount of time to first discover the basis for the complaint, then to understand how to cure the problem, and finally knowledgeably to answer the correspondence in an ade- quate manner. In my opinion, Cavins' testimony reflects a lack of confidence in his ability to master this aspect of his duties, a lack of confidence perhaps born of confusion caused by an apparent want of basic knowledge concern- ing the various models produced by the Company as testi- fied by Pflaum. Whatever the reason, Pflaum testified that Cavins was not performing at the level required of a senior laboratory technician. I have no doubt that his appraisal of the situation was an honestly arrived at conclusion based upon objective considerations. On August 18, 1976, Cavins was given his second merit review. Snavely conducted the oral interview and prepared the written merit review in conjunction with Pflaum who agreed with his appraisal of Cavins. During the oral por- tion of the review, Snavely advised Cavins that the criti- cism detailed in the earlier review remained unresolved. that his basic problem was a lack of organization and that he was floundering on the job. He advised Cavins that the quality and quantity of his work were unsatisfactory. and that the other indicia of job performance included in his merit review were evaluated basically as poor to fair. Snavely informed Cavins that for these reasons he was being denied a merit increase. According to Cavins, Snave- ly told him that he was doing a lousy job. that he was not getting the units through AGA, and he was not getting application forms out for the recertification program. Snavely stated that the job should go like clockwork. I he descriptions of Snavely's criticism of Cavins' work on the occasion of the second merit review, as testified to bh Snavely and Cavins, are in basic agreement. Cavins defended himself during this interview by agree- ing with Snavely that, indeed. the recertification duties should go like clockwork, but objected that it could not because everything was fouled up. He claimed that he had been busy answering criticisms. doing research, being on the phone, and doing other things that needed doing. In a word, he objected that he was too busy with other things to get his recertification duties done as quickly, as he would like. Cavins added, however, that he thought he had been doing a good job, that he was trying to get matters straight- ened out, but that if Snavely did not think any more of him than he had indicated, he would quit. Snavely then ads ised Cavins against quitting and told him that the criticism lev- eled at him was meant constructively. He told Cavins to do a better job. According to Snavely. Cavins did not seem to care particularly about the content of the criticism ren- dered by Snavely during the interview but was more con- cerned with and angry about not receiving any wage in- crease. He told Snavely that if he thought that his job performance had not been good up until that point, it was not going to get any better thereafter. At one point during the interview Cavins complained that no one seemed to be able to help him with the job. Snavely replied that Pflaum was there to answer questions. Following the interview, Snavely decided that although Ca- vins' work was unsatisfactory, inasmuch as Pflaum had re- cently been appointed Cavins' immediate supervisor and this change in supervision might beneficially affect the quantity and quality of Cavins' work, no further action against Cavins would be taken at that time. The content of the oral merit review was accurately reflected in the written merit review contained in the record." Following Cavins' second merit review, Cavins went to see his Shop Steward Ralph Thompson and advised him of what had occurred. Thompson agreed to check into the matter. Thompson then called Donald Boing, manager. la- bor relations. Kankakee, and requested that the matter be placed on the agenda for discussion at the regular monthly meeting scheduled for September. He asked Boing to make certain that Pflaum and Snavely were present. The scheduling of the problem for discussion at the September meeting was in accordance with the grievance procedure as per the con- tract. Thompson's request that Cavins' problem be discussed at the September meeting was the first indication Boing received that there was any problem concerning Cavins. The September meeting was held in the personnel con- ference room and was attended by Thompson and Cavins as well as several members of management and the Union. Although Snavely and Pflaum had been scheduled to at- tend the meeting, they were unable to do so, therefore little time was dedicated to Cavins' grievance. Cavins' complaint that he had received no wage increase and the Union's complaint that he had not been treated fairly were both, however, briefly reviewed. Boing then advised Thompson that he would have Randy Madderom, personnel manager. look into the matter and would get back to the Union in a few days. after he found out what the facts of the case were. About a week after the September grievance meeting, Madderom called Thompson and told him that he had the facts on C'avins' merit review and that he was going to call Cavins into his office and go over the matter with him. Thompson told Madderom not to do it that way, but rather to have a second grievance meeting at which Pflaum and Snavely would he in attendance so that Thompson could challenge anything they might say. Madderom agreed. Subsequently. Thompson contacted Pete Miller, manager, industrial relations, to make certain that Snavely appeared at the forthcomingmeeting. Milleragreed that Snavely should be at the meeting. Still later, Thompson also requested Boing to schedule another meeting with Snavely being present and Boing agree. Some time after the August 18 merit review, Snavely dis- cussed with Robert Cook., 4 manager, product engineering l; I], et Cr. wherea, ( 'ills IA s adescri hed as ploor ir fair in most ca lego- ries, the "riilen resiles contains check marks. mostly in Ihe fair caiegor. (O)nl "oith reg rd to the .categotrs. quantit, of work' does the written re- ,iew indLcaite a check mark In the fair io poor range ~4 Snavels's tiesilmon concerning Ihis discussioll uwas not offered With great certainty hut the events which preceded and follovwed it i uppoil i1 .i sa.lsfactory degree. its probahle ,ccurience 611 DECISIONS OF NATIONAL L[ABOR RELATIONS BOARD design and development, Cavins' job performance, and his dissatisfaction with it. He recommended that Cavins be placed in a different job classification, one that he could handle. Cook commented that Cavins should be given more support with his assignments and that with the addi- tional help he could possibly handle the job. Thereafter. Bob Hollingsworth was assigned to assist Cavins, and he and other employees worked overtime in order to assist Cavins to straighten the matter out. Following Snavely's discussion with Cook, on or about October 18, Snavely discussed with Cavins his performance since the August 18 merit review. In short, Snavely was still not satisfied with Cavin's work. Following the discussion. Snavely prepared a memorandum reflecting the subjects discussed. The memorandum and presumably the discus- sion which preceded it centered on the various aspects of Cavins' work performance. and for all intents and purposes was a rehash of the faults that Snavely found with C(avins' performance, more fully discussed previously with him on August 18. In addition, however, the memorandum noted that although two other employees were working overtime to help with the recertification program, Cavins refused to work overtime.'5 Inasmuch as a second grievance meeting concerning Cavins' work had been or was in the process of being scheduled, it appears quite likely that the memoran- dum was prepared by Snavely as a reminder or working aid to be utilized by him during future discussions on the sub- ject of Cavins' work performance. The second grievance meeting, and the first one which was attended by Snavely and Pflaum occurred on Novem- ber 3i6 and was one of the regularly scheduled meetings periodically attended by the Company and the Union to discuss various problems arising in the field of labor rela- tions. At this meeting, which was largely taken up with Cavins' grievance. ('avins' merit review and job perfor- mance were discussed. Snavely stated that Cavins' perfor- mance was substandard and the denial of the merit in- crease was justified. He cited, as examples, Cavins' failure to complete the NOX test and gave particulars concerning its having to have been completed in Milwaukee. lie de- scribed Cavins' failure to properly evaluate the thermocou- plers in May, as well as his general lack of production on the AGA monitoring program. He stated that Cavins had only gotten out thirty units during the first 6 months he was on the job. Cavins defended himself, claiming that he had been un- justly dealt with. lie accused Snavely of lying about the NOX test and stated that he had properly taken care of the matter. He explained his position as noted above and blamed Snavely for not giving him proper job instructions. He told those present that there was not sufficient equip- ment to properly do the job. With regard to the charge concerning his lack of production, Cavins complained that he had too much to do. He was unable to deny that he had only monitored thirty units in 6 months because he did not 5 Overtime, under the contrac. is the prerogative of the emplo, ic eiand Cains chose not to work overtime. n, Boing'. testliions ihal it oicculrred in late October is most like l: In error. have the figures before him at the time.17 The Union, through Thompson, also defended Cavins' production, noting that Cavins had too many duties to perform since some laboratory employees had been laid off and others transferred to management. Thompson pointed out that there were only three or four employees left working in the lab and that the workload had not diminished. He stated that C(avins was doing the work of three people and for this reason did not have time to perform all of the monitoring work that Snavely felt he should do. In reply to Cavins' and Thompson's assertion that there was too much work, Snavely countered by complaining that Cavins had refused to work overtime, arguing im- plicitly that if he had accepted the overtime that had been offered, his production would have been greater. He added that Cavins had never come to Snavely and requested addi- tional time to complete his assignments. When Snavely asked Cavins and Thompson why Cavins had not worked overtime when offered the opportunity, Thompson replied that "the contract says that its the pre- rogative of the employee whether he wants to work over- time or not and this should not be held against him." Ca- vins had previously taken this position when requested to work overtime on one or more occasions. According to the testimony of Boing, Cavins added, "anybody that treats me like that, I'm not going to work any overtime and I don't have to work an 5 overtime." Boing described Cavins' state- ment as being made, "in a very terse, aggressive manner." The meeting broke up with the stated intention that management would consider the testimony of the partici- pants and would, at a later date, advise the Union as to whether or not it would change its position with regard to the denial of the wage increase. Before the participants left the conference room. Boing advised Cavins that there would have to be improvement because he was performing unsatisfactorily. Boing testified that by making this state- ment he was putting Cavins on notice that unless he im- proved his work performance, he would be demoted. Approximately I week after the November 3 meeting, Boing called Thompson and told him that Cavins' merit review was appropriate and would stand. He added that Snavely wanted Casins terminated. 8 Thompson advised Boing that he wished to take the grievance to the next step, a meeting with top management. Boing agreed to schedule the meeting. About a week later, Thompson had a conver- sation with Snavely while in Snavely's office. According to Thompson, Snavely stated that he was going to fire Cavins. When Thompson asked him on what grounds, Snavely re- plied. "Incompetence." Thompson argued. "You're going to play hell firing him for that." He added that they should not discuss it further at that time because there was a griev- ance meeting scheduled and it would be more appropriate i' (a'ins testified that he latcr checked his files and found that he had nliitorred 52 units r;lther thn 1i) No records were offered either hb Gener- il Counsel ori bh Rcspolndent to supporl their positiions " Boing denied telling hompson that Snaveld wanted (avins terminat- edl Itowc er. since Snavsel, admitted that he might have discussed with HBilrg the fact that he wanted ( .uiln s terminated. i credit I hompsoin on this maitel a.nd find ihal the discussion took place is he descihed Subsequenl- 1. [htomnlpson rcporile] to (';. ins that Boing had saidi that ( avins was going to he fired 612 A. O. SMI llt ( ORP. to discuss it then. Snavelv denied that he threatened to fire Cavins during this discussion with Ihompson but admitted telling him that something had to be done about ('armins performance in the laborator' and that termination .as a possibility. I credit Ihompson s version of his discussion with Snavely. The third grieance meetin occurred, according to Thompson and Boing. on November 16. and was held in Pete Miller's office. Thompson led the U nirion contingent and Boing. Cook, and Miller represented the ( oripians. Neither Cavins nor Snavelv attended the meetine. (ook advised the union representatives that lie was consliderill firing Cavins. Thompson objected that ('at ins was not being treated fairly, that he was not being gi rn sufficient help, and that he was expected to do three people's swork. Cook replied that he would then demote C('ains hut Miller interposed by advising him that there was no procedure for demotion in the contract. Thompson then argued that Cook should go back, give Ca ins sufficient help to do the job and with this help he would get the joh done. (Iook thereupon agreed that Ca ins would be given the necessars help to get the job done. In agreement with 'rhompson, Boing testified that much of the meeting concerned i h;at could be done to motivate Ca ins and that t was decideld,. upon Cook's recommendation, that C ain, should ha; e one of the other employees assigned to hili on a da,,-to- day basis, to work with him, assist hini and train him. Beoing further testified that this solution w as agreed upon after Miller determined that ('asins had not been doing his job and would have to be fired unless his work impro cdc because there was no available procedure for demoting him. During the period that ('avins' grie; ane swas being pro- cessed Beoing kept in contact with Snav el to determin e how Cavins was progressing. During one discusion on the subject. Boing asked Snavels if ('a ins was doing a hbetter job. Snavels reported that. on the contr~ar . ('asins m a- not doing a better job but was sitting at his desk. doing .ci, little work. pouting and being nonproducti e. Some time after the November 16 meeting. lioing met privately with Thompson in the cafeteria.) Based on what he observed of ('avins' attitude at the Nov ember 3 meeting and on what Snavels had told him about ('aiins' perfor- mance since that meeting. Boing ddetermined to disciuss the matter with Tlhompson in hopes of enlistin 'I honip ,on in getting Cavins to chanige his uorik habhits andi attitude to- ward the job and thus a, oid the necessits of suspcnding or discharging Casins. At the meeting. Bolng asked lli itmp- son to talk to Cavins privatel! albout the n.itieir. to ,id ise him that he should let bygones be bhgones. to drec-lop a little different attitude toward his w ork not to be so hostile toward supervision as he had been in the past, allid to eet on with the job. He told Thonmpson that it these suges- tions were not followed, the result might be demiotion or discharge. i B lllg ,I;C pi ill l sttil'led i.l1 thJ, Illt CtIl/L' loo}k ?]' lolt 11 '1t .dk 'crl' her elsc, here Ih. t i ct cuirred I1 1 rIN J)tcenlh: SlntC thin , \,; I. le lt( e o No.eniber 23 rllO tcILtatl, - w,,ud ha,t e bc en d ,d at 1.l. tll , . II I,, It alread beenh i rctel i..d ,nd it ts, nl I -ntlIl,.,d lht ih l-. . f ,t- o'k pla, hec'fre is recipt A ctrd nldcethl 111 ih , ' c l, l, 'k ]]r O 'I ahbeul l)ern)lhcl 2I1 In mid-No\ember, about the time of the third grievance meeting. (Cavins received a telephone call from J. H. Fitz- gerald, chief testing engineer at the AGA Laboratories. He referred, during the ensuing conversation, to a letter which lie had received from (Cavmns dated November 11. 1976. in xhich (' ains had requested test dates to update the water heateis under the 1975 standards. He advised Cavins that lie knew that ('avins was handling correspondence between A. (. Smith and AGA. that he was getting ready to write a letter ,and that he did not want to get C(avins in trouble but that the A(iGA needed the units at their laboratories for testing and the' had not 'et arrived. He told Cavins that a letter explaining the situation w ould be sent to Cavins' su- periors, in plarticulair R. E. ('ook. Cavins advised Fitzger- ald that he need not worry about getting him in trouble bec:iuse his superiors were aware of the problem at the pl;int because of the Company being short-handed. Fitz- gerald replied that the letter was being sent and that as soon as the units were made read) at A. O. Smith, they should be sent to A(iA. lie added that Cavins should not 5 orrl about the recertification because other companies weie also having similar problems. Fitzgerald's letter. dated November 23. 1976, and ad- dressed to ('a, ins with a copy to Cook arrived shortly after that date: November 23, 1976 Mr .M. ., ('Cavins A. O. Smith (Corporation (Consumer Products Di%. P. ). Box. 28 Kankakee, Illinois 60901 I)ear Mr. Cavins: \V' received our etter lettr f No'ember 11th in which 5Ou requested test dates to update the water heaters ulider the 1975 standards. As discussed in our telephone conversation, we will be unable to certif' all models requested by January I. 1977. since our test date schedule is filled through Jan- u.lr. In view of this we ask you to check your produc- tiOn prioritsi and inform us as to the models you would like to ha.e certified first. We will then try to work these niodels into our test schedule as earls as possi- ble. Please ship all sour heaters to the Laboratories at sour e;arliest cotLserll ence. As , ou CIre pie iotusl informed in Mr. ilodgdon's Ictler of )Decemrber 19. 1975, the "effective date" for \olume I a itci' hea;ters is January 1, 1977. This means thl :ittl productiou as well as new design of Volume I watei heaters must be tested and certified under the latest standarrds 119751 bs Januars 1. 1977. Also, certi- ficiation will be discontinued on any model not certi- fied under the latest standard and all production of these units after t.lnialrx 1i, 1977, is not entitled to bear the \.G.A. Se.l until certification is completed. If xou haxe ans further questions, please contact us. \'er trul; sours, J. It. 111 TZ RA l.[) ('hief Testint linrineer I .aboratories cc: RF.. (ootak 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In short, the letter advises Cavins and the Company that AGA would be unable to certify all models for which re- certification was requested by January 1, 1977, because the AGA test date schedule was filled through January. The November I I request for test dates was apparently sent too late to enable the AGA to comply with the request. As a result, AGA was requesting the Company to furnish a list of models which it would prefer certified first, so that those models could be worked into the test schedule at a later date. It further requested that the Company ship all of its heaters to AGA at its earliest convenience to permit test- ing. Finally the letter advised the Company that inasmuch as it had been made aware as of December 19, 1975, that the effective date for the testing of all models under the 1975 standards was January 1, 1977, the Company's failure to have its production and newly designed models tested by that date would result in certification being discontin- ued on any model not certified under the 1975 standard and that any production of these models after January 1, 1977, would not be entitled to bear the AGA seal until certification was completed. According to Snavely, the number of models affected by the AGA's refusal to recertify included several residential water heaters and numerous commercial water heaters numbering, in total, about half the production line. Snave- ly testified that the correspondence that should have been done to avoid this problem was Cavins' responsibility and if he were not performing the duties in connection with the job, he was at a loss as to what Cavins was doing. SnavelN testified that, in his opinion, Cavins never fully understood precisely what was involved in submitting the forms and he could not find the necessary information required for sub- mitting them. Thus, he was apparently working but, be- cause of disorganization, was not accomplishing anything. Snavely further testified that he was aware in 1975 that certain water heaters would have to be recertified by Janu- ary 1977. lIe explained. however, that little could be done about it that early since standards change over a period of time so that it was not possible for the Company to know that far in advance what changes had to be made in order to comply with the standards. About 6 months before the expiration date was the proper time to prepare for certifica- tion. Therefore, at that time, Yocum was assigned the job, then Cavins. Yocum succeeded in taking a line of water heaters through the decertification process but then he was transferred out of the laboratory. Cavins had the job of processing heaters for recertification by himself until Holi ingsworth was assigned to help him. Hollingsworth, though an Engineer G Grade, was working below his level when he was assigned to help Cavins but the assignment was never- theless made because of the emergency. When assigned the job of processing the heaters for recertification. Cavins had failed to perform his duties. As noted, a copy of Fitzgerald's letter was directed to Cook. Pflaum showed Snavely a copy of the letter. When Snavely saw the letter, he immediately contacted Cook to determine what action should be taken. The three confer- red and theieafter a program was worked out between Pflaum and F'itzgerald whereby the Company, with special dispensation from the AGA, could send its water heaters to AGA without assigned test dates. Cook meanwhile ob- tained from the Director of AGA, extentions beyond the expiration period for certain models so that the Company could continue production. These actions apparently re- sulted in the problem being considerably ameliorated since there is no evidence that any of the Company's models were permanently decertified as a result of Cavins' failure to perform. Upon receipt of his copy of the November 23 AGA let- ter to Cavins, Cook sent a memorandum to both Miller and to R. N. Clark, vice president and general manager. This memorandum, dated December 1, recommended that Cavins either be discharged or moved out of the depart- ment and suggested an early meeting so that the required action could proceed through the proper channels. 20 The memorandum was eventually routed to Boing with direc- tions to handle the matter with Snavely. Boing did not, however, take up the matter with Snavely as the memoran- dum directed but rather went directly to Cook because he had written the memorandum. During this period, just prior to Christmas and between the holidays, Boing talked to Cook in depth about the matter. He took the position that Cavins should be demoted rather than discharged, ad- vised Cook of his opinion, and at a meeting attended by Cook, Snavely,2' and Boing, Cook agreed that whatever action was to be taken, nothing should be done until after the holidays. Eventually, Boing got Cook to agree that de- motion would be the better course to follow. Between December 15 and 22 Boing met with Thomp- son 22 in Thompson's supervisor's office and discussed with him the AGA's refusal to recertify the water heaters, the seriousness of the situation, and Cavins' responsibility for the problem. He advised him that the entire AGA recertifi- cation program had been imperiled by Cavins' failure to properly perform his duties, that his failure was "the last straw" and that some action had to be taken, namely, the demotion or discharge of Cavins. Thompson replied that he had anticipated the problem and had spoken to Cavins ahout it earlier and that it was (Cavins' position that, faced with such a choice, he preferred that the Company fire him. Boing stated that he could not believe that Cavins preferred discharge to demotion and asked Thompson to go back and check it out once again with Cavins. Thomp- in thereupon left and 5 minutes later returned to reiterate ( avins' position as stated earlier. Boing then stated, "Fine, if that is what he desires, then we will discharge him." He then left and returned to his office. After thinking about his discussion with Thompson con- cerning Cavins' preference for termination over demotion, ioing called Thompson back, either later in the day or the following day, and told him that he had decided to demote C(avins and that is what the Company would do regardless of Cavins' preference, because demotion was proper, add- :" Ihe dCOluimenl was not offered into eidence. 2 Sinasels too. according to his own testimony. was in favor at this time ff demnoting Cavins. : I)DeBuck mas also have been present. He did notl however. testify. 614 A. O. SMITH CORP. ing that he did not want to cost the man his seniority. Later, Boing called Thompson a second time and advised him that since it was just before the holidays, no action would be taken until after the holidays. 23 He advised Thompson that at that time Madderom would conduct a hearing with lab supervision and Cavins would undoubted- ly receive his demotion. Later that day, Snavely and Thompson had a conversa- tion during which Snavely stated that he intended to fire Cavins. When Thompson replied that Boing had decided to wait until after the holidays before taking action. Snave- ly agreed to wait until the first of the year. Subsequently, Thompson confirmed with Boing the decision to wait until after the holidays before taking action. After his discussions with Boing and Snavely, Thompson reported to Cavins the contents thereof, including Snavely's threat to fire him, but told Cavins that no action would be taken until after the holidays. After Thompson advised Cavins of the Company's intention of firing him after the holidays, he left. Cavins. two or three minutes later, stopped Ed Pflaum, his supervisor, as he was walking past Cavins' desk. He informed Pflaum that the Company was trying to fire him. According to Cavins, Pflaum re- plied, "Well, Gene, I'll tell you. You're going to have to play ball with these guys. You've made them mad. You've gone to the union. You just have to learn that they're the bosses and you've got to do what's right, what they think." Cavins then responded, "You mean to tell me, Ed, that I can't even go to the Union with a little grievance or a little gripe that I've got without worrying about losing my job?" To this question, Pflaum allegedly replied. "Well, you just have to apologize to the right guys." When Cavins asked, "Apologize to whom and for what?", Pflaum did not reply. Pflaum denied that this conversation ever took place. FiHe denied discussing the Union or union activities with Cavins or any other employee since becoming a supervisor.2 4 1 credit Pflaum's denial that this conversation ever took place. I find Cavins' explicit recollection as to the specific words and expressions allegedly used by Pflaum complete- ly at odds with his failure to recall other important facets of the case such as the particulars of his various assign- ments or the duties connected with the programs in which he was expected to participate. Cavins' memory was ex- tremely vague throughout his testimony even to the extent of being unable to describe the purposes of or his duties with regard to the Efficiency Labeling Program. yet quot- ed, as if verbatim, Pflaum's alleged comments concerning the Union. Moreover, Pflaurn was not one of the principal members of management who participated in the ultimate decision to demote Cavins. 25 Whereas Cook, Miller, Boing, and Snavely took part in various meetings, both intraman- " The Various discrepancies is to time and place iof the se..eral .,c...a-. tions between Boing and Thompson arre reiol ed in Birnlg's fal.r .lllillich as the detail in which he testified coin\ ries me t hat his milemr Is ,ornle- what more dependable than that of homnpson, As a member of the bargaitine ut, Pflaum had been a shiop steard I consider his participation with Snlvsel\ in the drawing up if ( .\ ins August 18 ment review. whlch preceded Ihe filing of the grie\ancc. and his part in the second grievance meeting. tol far remioed in time and suhtbsiice from the decision to dermote Casins tio "arrant the concusiion that he had an) responsihilits for the ultimate de:lsitn to take thai. actlton agerial and with the Union, wherein Cavins' future em- ployment was seriously considered, Pflaum was, as far as the record indicates, not privy to their deliberations. There- fore if, indeed, he had made the remarks attributed to him by Cavins, it would not necessarily follow that such re- marks had any connection, whatsoever, with the decision of higher management to take the action against Cavins which it eventually did. Therefore, even if Pflaum had in fact made remarks attributed to him by Cavins. I would not, in light of surrounding circumstances, find such re- marks imputable to Respondent for the evidentiary pur- pose of determining that the demotion was discriminatorily motivated.26 It is of some import that nowhere is it alleged that anyone directly connected with Cavins' demotion had ever remarked to Cavins or anyone else concerning his right to file a grievance or participate in union activities. On the contrary, from the very first, it appears that the Company fully accepted Cavins' pursuance of his contrac- tual rights as protected activity and at no time and in no way did the Company's reaction reflect an antiunion or discriminatory attitude toward Cavins or his union repre- sentative. In sum, based upon the comparative demeanor of the two witnesses testifying concerning the alleged re- marks, and upon all of the surrounding circumstances, I conclude that Pflaum did not make the statements alleged, that even had he done so, the remarks were not imputable to Respondent for the purpose of supporting the allegation concerning the discriminatorily motivated demotion of Ca- vins, and that the allegation of violation of Section 8(a)(1) contained in paragraph 5 of the complaint should be dis- missed. After Christmas. Thompson. Cavins. and other union of- ficials met to decide whether Cavins should accept termi- nation or agree to the demotion. Though Cavins initially took the position that he would choose termination before demotion, he subsequently decided to keep his job and pursue his rights by other means. On January 14, at a meeting attended by Cavins. Fhompson, DeBouck. and Hollingsworth for the Union and Pflaum. Snavely, and Madderom for the Company. Ca- vins was demoted effective January 17. 27 When Snavely announced that Cavins was being demoted, Thompson asked him on what part of the contract he was relying to demote Cavins. Snavely replied that he was relying on the job description. Thompson then advised Snavely that after consulting his attorney, the Union would file an unfair la- bor practice. a grievance or both. Subsequently, it filed both. Since his demotion. Cavins has been monitoring AGA units, work which he performed both as a junior and senior technician. He no longer answers correspondence from AGA. Rather, two other employees hired as senior techni- ciatns now handle the AGA correspondence. General Counsel, in order to show discriminatory moti- vation relies, in part. on the alleged conversation between Plaum and Cavins described above and, in addition, on twio incidents involving employee James Campbell and his supervisor. Edward Pflaum. According to the testimony of '('f ',ri, tli. is. 149 NLt RB 1454 (1 9 64). No other mnplsoees have been discharged or demoted in the engineer- irlc dep.lntment diairing the past several ,,ears for ans reason 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Campbell, in November 1976, he had a conversation with Pflaum while in the laboratory in the presence of another supervisor, Jack Cousins. Campbell, on this occasion, asked Pflaum if he was going to receive a wage increase. Since it had been 28 days since his recall and he only had 30 days in which to see the Union about the problem. he explained to Pflaum the necessity of some action being taken quickly. Pflaum replied, "Jim, I told you that you were going to get the money and you will get it, but if you cry to the Union, you might not get it." Subsequently, Campbell received the wage increase promised, albeit something less than expected. He did not have to seek the aid of the Union to obtain this wage increase. Pflaum de- nied that he ever discussed the Union with Campbell. According to Campbell, there was a second conversation between himself and Pflaum which took place in April 1977 in Pflaum's office. On that occasion, Campbell had bid on a senior classification job and Pflaum told him. "Jim, we didn't post this job for you, we need an electrical engineer." Campbell argued, "The agreement doesn't re- quire an electrical engineer. I have minimum qualifications and seniority for the job." Pflaum allegedly replied, "You can go to the Union if you want to, but it's not going to do you any good. If worse comes to worst, we'll just come down to posting and not hire anybody." Pflaum denied Campbell's version of the incident. According to Pflaum, it was Campbell not himself who suggested, "If I do grieve you about this job, you'll pull this off the board." Pflaum denied making any reply to this statement by Campbell and stated that he had no intention of pulling the job off the board. Campbell did not receive the job, he did file a grievance concerning his failure to get the job, and at the time of the hearing, the job had not yet been awarded and the grievance was still being processed. Though neither of the discussions between Campbell and Pflaum were alleged as violations in the complaint. General Counsel takes the position that the tenor of the conversations indicates an antiunion bias and that as back- ground they tend to support Cavins' case. I find that both incidents occurred as described by Campbell, whom I consider a credible witness. I do not, however, impute to Cook, Boing, or Snavely, those mem- bers of management directly involved in the decision to demote Cavins, the attitudes reflected by the statements made b'y Pflaum to Campbell.8 In the absence of allega- tions in the complaint covering these incidents or full liti- gation of the incidents during the hearing as possible inde- pendent violations rather than as matters supportive of the 8(a)(3) allegations only, I find that it will not effectuate the purposes of the Act to make findings in connection there- with, as these incidents are not directly related to the de- motion of Cavins, the case before me, but are peripheral at best to the allegations contained in the complaint. Conclusions General Counsel alleges that Cavins was demoted be- 2a Porto Atilt,, In . upra '9 D)l.nv, Shtrcotliptrs and Eh citrotlper (U'nonm, Lo. a! :,i I 1. (l)lne, I't, In, ), 231 N LRB ,78 (1977); .4Almantic (loast 'ihrie,, 183 N LRB 921 (197111 cause he pursued his contractual rights and filed a griev- ance in order to overturn his supervisor's evaluation of his job performance as reflected in the merit review of August 18, 1976. Respondent contends that Cavins was demoted in January 1977 after numerous warnings of inadequacies in his job performance and because of said inadequacies. In mV opinion, the above facts do not, by a preponder- ance of the evidence, sufficiently support the allegations of General Counsel as set forth in the complaint. On the con- trary, the facts reflect that Cavins was the first junior labo- ratory technician recalled by Respondent following a group layoff; that despite some dissatisfaction with Cavins' attitude toward certain company programs in the past, in- cluding some having to do with safety, Respondent re- called Cavins as a senior laboratory technician with an in- crease in wages. I am convinced by these facts that Respondent harbored no ill-feelings toward Cavins for anything which may have occurred prior to his layoff. When Cavins first undertook his new assignment, he was unable to perform all the duties expected of him. He was dissatisfied with his own production and so was supervi- sion. Moreover, his supervisor found the quality of his work equally unsatisfactory. With regard to the Efficiency Labeling Program, the primary basis upon which his pro- motion rested, Cavins did nothing, because he did not un- derstand it. Whether Cavins' inadequate performance was totally the result of his basic inability to get the job done or in part the fault of inadequate supervision, it is quite clear that Snavely's dissatisfaction with Cavins' work perfor- mance, as of the date of his first merit review, was honestly founded on that performance, not on some ulterior, dis- criminatorily motivated basis. His dissatisfaction was re- flected in the merit review of February 18, 1976. During the next 6 months Cavins' work performance did not improve. He failed to properly perform certain spe- cial assignments, the NOX test and the test on the thermo- couplers, and continued to fall behind in the AGA moni- toring program. He was also unable to keep up with the new assignments he received concerning AGA correspon- dence and product criticisms. This is fully documented not only by the testimony of Cavins' supervisors but by his own admissions. When, therefore. Cavins received his sec- ond merit review on August 18, 1976, and this review re- flected the dissatisfaction of supervision with his perfor- mance, I find the review well justified to the extent that it was honestly arrived at, based upon the observations of those responsible for it. There is no evidence whatsoever that the merit review was the result of discriminatory moti- vation based on antiunion considerations. As a matter of fact. Cavins, being upset with not receiving a wage increase at the time of the merit review, threatened to quit. Snavely credibly testified that he endeavored to argue Cavins out of quitting, observing that the criticism was meant construc- tively. Clearly, at this point in time, if the company desired to rid itself of Cavins, Snavely would not have bothered to talk Cavins out of quitting. When Cavins was refused a merit increase on August 18, 1976, he sought the aid of his shop steward who, on his behalf, contacted management to have the matter dis- cussed at the regular monthly labor relations meeting in accordance with the grievance procedures, as per the con- 616 A. O. SMITH CORP. tract. The subject matter of Cavins' grievance was placed on the agenda with no evidence of reluctance on the part of management. No satisfactory resolution having been achieved at the first meeting, a second meeting wsas sched- uled at the Union's request wherein the matter could he reviewed in greater depth with union officers specifically requesting and being permitted to challenge anything that might be said against Cavins by his immediate supervisors. The handling of Cavins' grievance in accordance with the Union's request indicates no reluctance on the part of the Company to deal with the Union but reflects favorably on its willingness to solve the problem through proper chan- nels. Further, the Company's assignment of additional help to Cavins, subsequent to his August 18 merit review, and his filing of the grievance also militates against General Counsel's contention that the Company took umbrage at Cavins for filing the grievance. Yet, although the Company assigned other employees to aid Cavins, in order to help him catch up with his assigned duties, Cavins refused to help himself by agreeing to work overtime,'( a fact which later came to the attention of higher management during the grievance meetings. At the November 3 grievance meeting, the first at which Cavins' work performance was discussed in depth. Snavelk described the basis for the adverse merit review. Cavins was given full reign to defend himself. He laid much of the blame on Snavely, stating that he had performed well, that Snavely was lying about the NOX tests and that he was overworked. The Union similarl` charged that Cavins wsas doing the work of three people and did not have time to do all of the work assigned to him. In answer to Cavins' asser- tion that he had too much work to do. Snavely pointed out that Cavins had never requested additional time to com- plete his assignments and, in fact, had turned down over- time during which he could have increased his production. The Union defended Cavins by pointing out that working overtime was the prerogative of the emploee. When Ca- vmins added "Anybody that treats me like that. I'm not going to work an), overtime and I don't have to work any overtime." in what Boing described as a very terse, aggres- sive manner, Boing took exception to Cavins' attitude. Al- though General Counsel contends that Boing's criticisms of Cavins attitude during this meeting reflects an antiunion motivation in that the attitude criticized refers to the filing of the grievance, and Cavins' forceful defense of his posi- tion during the meeting, I do not find it so. Rather. I inter- pret Boing's remarks concerning Cavins' attitude as criti- cism of Cavins' response toward the requirements of his job, more precisely his refusal to take the blame for his own shortcoming, his tendency to blame others. particu- larly his superiors, for his own failure to perform, and his stubborn refusal to take steps (accept overtime) to amelio- rate his production problems. Boing was clearly not im- 3Granted that (as ins wa s no, required. undec the rntrract. l a.ciC, l overtime, his refusal io do so. under Ihe clrcun li.iirt, cer.ill] d* .c r¢r1o I on his attitude to' :ard his , ork Oh i usl it if he I ,Ilhic to pro,lrl :. sufficient quaniit) of *ork during his regular hift to , at l!s his LupCri-lr.rs and management offers him the opporiunmlt io . ork o ertile ii1 ior ll ,o meet productlon requirementl. his refusal Io take iadA. i llt ie f Illh tff could legltimmatels he the suhect of criticisl. espem tdl. ll 1l. ifs tihe fL ,t ihai other emploaees had been issigfned to help h1miit ill pletc hi, oh pressed with Cavins' argument as to why he should have received a wage increase. which. of course, at this stage, was what the grievance was all about. The Company had not threatened Cavins with either discharge or demotion but had simply refused. because of inadequacy of perfor- mance. to increase his wages. Cavins. according to the credited description of his performance at this grievance meeting, demonstrated. in my opinion, a "chip on the shoulder" attitude wherein he manifested his intention not to cooperate in the future because of adverse merit reviews in the past. This, in my estimation is what Boing referred to when he criticized Cavins' attitude. Quite clearly, after lis- tening to both sides of the argument. he concluded. as I have, that Cavins had not performed his duties well, and far from deserving an increase in wages, unless his job per- formance improved in the future, a demotion was more in order. When Boing later advised the Union that the CompanN had decided to permit Cavins' merit review to stand, the Union determined to take the grievance to the next step. The third grievance meeting was held between upper man- agement and the Union in the absence of both Cavins and Snavely. Though certain members of management stated that ('aivins should be fired or at least demoted because of his inadequate performance, the Union argued, apparently persuasively. that if Cavins were given the necessary help he could get the job done. There is no dispute that most of the third grievance meeting was taken up with discussion about what could be done to motivate and otherwise help Cavins improve his performance, since that performance had. to date, been inadequate and, unless there was im- provement, Cavins would have to he terminated as there was no procedure available under the contract which pro- vided for demotion. Since this was the third grievance meeting, and it is un- disputed that management. as well as the Union, was still engaged in time consuming honest efforts, as late as mid- Noxember. to find ways of keeping C'avins on the job. I find untenable General Counsel's position that Cavins' eventual demotion was a result of his filing the grievance way back in August. Moreover. there is no evidence that any members of tipper management ever indicated that C(avins was not properl) within his rights in pursuing his triesance through the second and third step. On the con- trar,. their hehavior. as reflected by their decision at the close of the November 16 meeting, indicates a genuine de- sire to justly solse the problem raised by Cavins' grievance. as well as the problems of his inadequate performance on the job. Meanwhile. while the grievance was being taken through the various steps. C as ins' failure to improve his job perfor- mance came to the attention of Boing as did Snavely's de- sire to have ('avins discharged. Snavely's report that Ca- vins swas not doing a better Job but was sitting at his desk. doing sers little work. and pouting, certainly did nothing to improve Boing's opinion of C(avins' attitude toward his work. Yet Boing later attempted to enlist Thompson's aid in hasing Cavins change his attitude. to let bygones be bygones, to deselop a little different attitude toward his work, not to be so hostile touard supervision as he had been in the past. and to get on with the job. Far from 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicating an antiunion bias on the part of Boing and the Company, as General Counsel contends, this action dem- onstrates to me a real concern for Cavins' welfare and fu- ture employment. This was the situation at the plant when the letter of November 23 was received. The Company had decided to try to get additional help for Cavins to enable him to be- come a better employee, and Boing was trying to enlist the aid of the Union in order to get Cavins to change his atti- tude toward his work. Upon receipt of the November 23 letter, however, management became aware that because of Cavins' failure to perform his duties in connection with the recertification program, approximately half of its pro- duction had been placed in jeopardy. Though the Compa- ny was able to obtain special consideration from AGA which permitted it to avoid decertification, it immediately became clear that the predicament the Company found it- self in was the result, once again, of Cavins' failure to perform his duties, a problem of which management had been well aware for some time, albeit to a lesser degree than became evident at this time. The decision was to have Cavins discharged, demoted, or moved out of the department and, after some consulta- tion among the various members of management and some delay occasioned by the then forthcoming Christmas holi- days, Respondent advised the Union of the seriousness of the situation and of the action contemplated, once again thus evidencing the Company's insistence on following the proper channels with respect to implementing changes af- fecting labor relations, a position at odds with the conten- tion of General Counsel that the Company was motivated with regard to Cavins' demotion by antiunion considera- tions. When the Union, through Thompson, advised Boing that Cavins preferred discharge to demotion, Boing refused to follow Cavins' stated preference, and insisted that the situation called for demotion, not discharge. Once again, it is patently clear that if the company desired to rid itself of the problem created by Cavins' grievance, his discharge would certainly have met those ends far better than would his demotion. If Boing would have accepted, at face value, Cavins' stated preference for discharge over demotion, the discharge would have gotten rid of both Cavins and his grievance. In opting for rejection of Cavins' preference for discharge and insisting on demotion, the Company ensured itself, not only of Cavins' presence and the continuation of the existing problem but, in all likelihood, additional griev- ances or labor related problems, since the relationship be- tween Cavins and his immediate superiors was indeed strained. Thus, Boing's refusal to agree to Cavins' prefer- ence for discharge over demotion, once again appears to undercut General Counsel's contention of anti-union ani- mus on the part of the Company. In summary, I find that the demotion of Cavins was a direct result of his inability to perform assigned tasks and was in no way connected with his union or other protected activity.3 1 Inasmuch as I have found no other evidence of violations as alleged in the complaint, I recommend that the complaint be dismissed in its entirety. CON('CLU.SIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: OR DER 32 It is hereby ordered that the complaint in this proceeding be dismissed in its entirety. " It is recoimmended that re.spondent's prayer for payment of reasonable attorney's fees and expenses be denied. as the "affirmative action" clause in Sec. O(cl) of the Act clearly applies Ito remedies to be enforced against charged parties, not chairging parties ( f. Inernuiionul Irnion of Electricaul., Rliado and .SMauhile I4,,erir, EL ('10 /liidee Praodu-its Inr . ' L.R B., 02 .I 2d 349 (' .A.D(' 1974) ' 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, an.id Order, and all obheclions thereto shall be deelned wived fil all purposes 618