Harley-Davidson Motor Co., Inc.

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harley-Davidson Motor Company , Inc. and Michael E. Amich. Case 30-CA-991 February 16, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 23, 1970, Trial Examiner Lloyd Bu- chanan issued his Decision in the above-entitled case, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed ex- ceptions to the Trial Examiner's Decision and a sup- porting brief; the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case. While the circumstances surrounding Amich's discharge are somewhat suspi- cious, we find that the Trial Examiner's findings are not contrary to the preponderance of all the relevant evidence. Accordingly, we hereby adopt the findings, conclusions and recommendations of the Trial Exam- iner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued December 18, 1969; charge filed March 10, 1969), as amended, alleges that the Company has violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 73 Stat. 519, by discriminatorily discharging Amich on February 28, 1969. The answer denies the allega- tion of violation. The case was tried before me at Milwaukee, Wisconsin, on June 23 and 24, 1970. Pursuant to leave granted to all parties, a brief has been filed by the Company, the time to do so having been extended. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following' FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Wiscon- sin corporation, the nature of and the extent of its business as a motorcycle manufacturer, and its engagement in com- merce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, Local No. 209, International Union Allied Indus- trial Workers of America, AFL-CIO, is a labor organization within the meaning of the Act. 11 THE ALLEGED VIOLATION OF SECTION 8(a)(3) AND (1) Amich was hired as a trucker in the machining depart- ment on January 27, 1969, and discharged on February 28, 1969, before the completion of his 45-day probationarypen- od. That period is set forth in a contract between the Com- pany and the Union, which have maintained a collective-bargaining relationship since 1936. The General Counsel insists on an alleged dereliction by Amich, which he argues was in fact not a dereliction but protected activity, as the reason for his discharge. Having set up and attempted to infect life into a straw man, the General Counsel has then directed his proof and arguments to knocking him down. But the defense is, and the evidence shows, that Amich was discharged for another and valid reason. Beyond the words "Bad attitude," Amich's discharge slip does not set forth the reason for the action taken against him. The slip was signed by King, an assistant superintend- ent, who relied on a report given him by Amich' s foreman, Rose The phrase is not forbidden even if it all too frequent- ly in other cases represents a discriminatory evaluation of an employee's protected concerted activity. Just as no ab- racadabra must be recited before a finding of discrimina- tion can be made, so is no such finding to be based on use of a term which is often highly suggestive and suspicious but here explained and quite understandable. In too many cases "attitude" refers to known and recognized protected con- certed activity. In this case Rose described his attitude as one of consistent belligerence; and the assistant foreman, Mann, several times spoke of Amich's attitude in connec- tion with the duties which he was to perform. Before noting the incident, which according to the Com- pany caused the discharge, we should consider the testimo- ny concerning delivery of oil by Amich, which the General Counsel claims prompted the discharge although Amich was engaging in protected activity. Whether his fob as trucker called for Amich to bring oil into his department from another department or merely, to distribute oil previously brought into his department, Amich had in fact gotten oil from the tool grinding depart- ment or from the automatic screw machine department (there is also reference to the maintenance department and the gear cutting department) although he raised the ques- tion whether that was part of his job duties. Rose testified that on the average of once a week Amich brought oil into the department with a 5-gallon pail. (Marlow, superintend- ent of this and another plant in the area, was admittely in error in this connection as he later confessed that he had not known of a large delivery .) Rose was corrobrated in this by Amich, who told us that he brought oil into the department after he had been there about a week and again a week after 188 NLRB No. 83 HARLEY-DAVIDSON MOTOR COMPANY that, when he raised the question with Rose . He later admit- ted that he had brought oil into the department as many as 10 times. The issue was a recurring one and evidently quite con- stant with Amich as the men in the department allegedly told him that it was not his job to bring in oil. He also discussed the point with Bizzelle, his steward, who told him that it was not his job to brm g the oil in and that he was merely to distribute it in the department after the mainte- nance men had brought it in . I do not credit Amich's testi- mony that, while he asked his assistant foreman , Mann, and then Bizzelle and Rose for a job description , he asked Rose on the second occasion whether it was part of his job and, receiving an affirmative reply, merely said , "Okay," and brought the oil in. Amich's own testimony confirms the evidence that he did not so graciously accept the order to get oil. After we were told that he was not paid for errands on jobs which were not included in his job standards (certainly a consideration which could lead to reluctance if not outright refusal), Amich told us that getting oil was within his job description but claimed that getting cutting oil affected his pay: he was paid for the time spent on such errands but not as much as when he could work on machines . Continuing on this point it is noted that even if bringing in oil were outside the scope of his duties, Amich was not to create an issue over perform- ance at the time he was told to do something , as he did with respect to the oil and later with respect to removing certain tote boxes . Decent procedure and deference to the long- standing relationship between the parties called for a less personal approach : grievance procedure and possible nego- tiation rather than direct confrontation by an employee. To the extent that his discussions with other employees and any union representatives may be considered protected activi- ties with contract obligations in mind, it is clear that Amich at no time filed a grievance in this connection. It does not appear that Amich 's reluctance and com- plaints concerning getting oil were brought to Marlow's attention by Rose or any other management representative. Rose testified that he did not tell Marlow about Amich refusing to go out for oil. As for discussion with union representatives and whatever the merits of any grievance in this connection, it was Rose who dealt with Bizzelle and he made it very clear, as both he and Amich testified, that his displeasure was directed against Bizzells's assertion of au- thority. Here again, despite the Company's statement of its reason for the discharge , we are asked to assume that Rose's attitude toward Bizzelle led to Marlow's action against Amich. Although Clauer, president of the Local, did not tell us about this, it appears that on February 27 he spoke with Marlow about the duties of the trucker with respect to get- ting oil and that Clauer agreed that the trucker was suppos- ed to bring oil into the department. From this, Marlow might sensibly assume that Amich (or someone else?) had raised the issue although Clauer did not tell him that Amich had complained. Despite the to-do made in this case with respect to one employee's duties in connection with oil delivery , this con- stituted no great problem in the plant . Amich testified that on February 27 the Company and the Union agreed that a barrel of oil would be in the department so that the trucker would not have to go outside with a 5-gallon can. Indeed Clauer had told Bizzelle that very day that to resolve any dispute in that respect he would see that Amich went out- side the department to get oil. Further, when the matter was sensibly discussed by Marlow and Clauer, without direct challenge of authority by a rank-and-file employee on the job, agreement was readily reached and the problem avoid- 543 ed or terminated. This constituted no great problem when the matter was in that manner treated as a grievance, even informally. Thus, despite reference at the trial to the contract terms and their interpretation, the parties found no technical ob- stacle to agreement. Were the contract provisions relevant, we should want to explore that aspect in greater detail than was attempted at the trial and to know what Amich's obliga- tion was on February 26. But this burning oil issue was no more than a smokescreen to hide the actual reason for the discharge. Although the General Counsel urges that Amich's recalcitrance in connection with the oil and his concerted activities with respect to it, and his complaints concerning pay shortages which were readily straightened out motivated the discharge, we shall see that it was a wholly different matter, which could in no way be even claimed to be discriminatory, which led to his termination without con- sideration and entirely apart from any question of oil deliv- ery. As suggested above, the Company explained that Anuch was discharged because of his actions and attitude in con- nection with the removal of three tote boxes. On February 26 outside the machining department on his way elsewhere, Marlow observed that an employee driving a loaded motor forklift was unable to get into the department because the aisle was clogged by three tote boxes piled on top of one another. Marlow went into the department and directed Foreman Rose to get his trucker to move the boxes. Marlow did not know Amich, 1 of some 1,200 employees, that he was a probationary employee, or that he was the trucker in the department. Three times extending over a period of about a minute Rose ordered Amich to get his lift truck to remove the boxes, but Amich said that he could not move them and he did not. Finally Marlow ordered Amich to get his truck, and he did. I credit the testimony by Marlow and Rose that Amich got his truck under the boxes roughly and as if he were about to turn them over. Marlow's description of Amich's slow and apparently reluctant approach to this task followed by a recklessness which caused Marlow to grab the boxes and direct him to take it easy as he pulled so quickly portrays the attitude referred to above. Before this aspect of the issue arose, Marlow earlier had testified that Amich pulled the boxes alone some 8 to 10 feet out of the aisle. Although to show that Marlow's order was unreasonable, Bizzelle testified that a larger lift was needed, and that one man could not do it with dirt and grease on the floor, the fact is that Amich did move the boxes. On the basis of what Amich told him was in the boxes, Bizzelle testified further that several good men would be needed to move the three boxes (Marlow is older and did not appear to be a "good man" for physical exertion) and that it would not be advisa- ble to attempt the task with less than three men. Yet Amich claimed that he undertook to do it immediately and without question, he approached the task and undertook it alone although he was allegedly assisted by Marlow and Rose, who helped to steady the load, not to move it. Other em- ployees were nearby and available to help had they been needed. Certainly Amich was not engaged in concerted activity when he did not promptly obey the order to remove the boxes. His delay and reluctance to move the boxes were insubordinate. He was not "voicing .. a grievance connect- ed with [his] work or his employers conduct . . . "' Nor did he even thereafter indicate that this was a subject of a "per- 1 N L R B v Selwyn Manufacturing Corporation, 428 F 2d 217 (C A 8) See also concurring opinion, Lay, CJ 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonal grievance based on ari Ik e by the collective bargaining agreement ... ' The incident allegedly slipped his mind. On the issue of credibility, it may be noted, aside from any question with respect to his earlier affidavit and wheth- er he had at that point been questioned closely, Amich told us first that he pushed the boxes with his lift and did not pull them; later and quite as positively, that he pulled and then pushed them. Nor, according to Amich, did he object de- spite the now claimed difficulty and unreasonableness of the task. If, as he could lawfully do, Amich raised questions con- cerning his pay and work requirements , the fact remains that he was not timid in this respect or observably in any other. (It should be unnecessary to note, having said that it was lawful, that this is said without criticism but in analysis of Amich's reactions.) Even in connection with lifting heavy objects on his forklift, he testified to prior discussions with other employees and their alleged statements that he "was nuts for doing it." Yet he would have us believe that he immediately, not as Marlow described the incident, put his lift under the boxes.3 I do not believe that, had Marlow or Rose deemed this as difficult or dangerous a task as Amich pictured it, they would have insisted that the latter perform it while they exposed themselves to risk of injury as they went to help him-because of the nature of the assignment, according to Amich; because of the way Amich approached it, according to Marlow and Rose. It does not appear whether Marlow thereafter saw Rose before the former returned to the plant on Friday, February 28. Marlow testified as follows: I asked Mr. Rose, "The man that you had on that truck the other day that we wanted the boxes moved, how long is he working here?" And he told me he was a probationary employee, and I says-Then I asked him, I says, "Well, why wouldn't he move them boxes that Night?" And Jim Rose told me, "Each time I tell him to do something, he questions me if he's supposed to do it or if he's asked to do it " ... And I told Jim, I says, "Why are you keeping an employee like that?" . I instructed Mr. Rose to terminate his employment. Marlow did not explain that the incident on the 26th, when an employee was recalcitrant in his presence, was unusual; but it may be presumed to have been. It does not appear, to support a possible claim that Marlow was unlaw- fully motivated in directing Amich to move the boxes, that on February 26 he knew of Amich's claims concerning pay shortages or of any problem with respect to getting Supervising these plants, Marlow operated with 3 assistant superintendents and some 60 foremen and assistant fore- man. While a probationary employee may not be discriminated against because of his concerted activities, a purpose of the probationary period is to permit an employer to evaluate an employee's performance and conduct in the performance of his duties. Marlow made such an evaluation and, on the basis of what he had observed and the information that Amich was a probationer,4 decided to discharge him. 2 Ibid. 3 Should the height of the load on Amich's forklift be deemed significant, it can be noted that it was not 9 feet, as he testified . With each box 28 inches high, allowance for the lift under the three would place the top of the upper- most box at about 8 feet or less If the top box had to be reached for steadying, this could be done at a height of some 6 feet or less. The boxes contained fork sliders, not fly wheels, as Amich testified, and they did not weigh an impossible 2,400 pounds, but approximately 1,000. Not alleged as violative and not litigated beyound Rose's denial that it When, to show that the discharge was connected some- how with concerted activities b Amich, Marlow was asked, "But he seemed to be a complyainer?" his reply was, "All I can tell you, when I see him that night there he did not follow the foreman's orders, and this is what led to his discharge." With full recognition of an employee's protected right to present grievances, it is something else to question orders and to display such an attitude and reluctance to perform as when Amich unwillingly and even recklessly obeyed the instructions to remove the tote boxes. The General Counsel has voiced the suspicion that the tote boxes incident did not prompt the dischargge but that the oil incident did; if not the oil incident itself since the entire issue was amicably disposed of the day before Amich was discharged, it was, as alleged in general terms and as it is claimed that Marlow allegedly admitted to Clauer on the Monday after Amich's discharge, because Amich had several times raised the oil issue (now disposed of) and the question of short pay (over which no company resentment had been suggested). Clauer testified that on March 3 he and Bizzelle (he there- after did not recall whether or not Bizzelle was present) spoke with Marlow, who said that "if Mr . Amich wouldn't have questioned things he'd done so much and ran to Mr. Bizzelle all the time, he would have gotten more done." This was not denied or mentioned by Marlow, nor had Bizzelle mentioned it. There is no predicate for any reference by Marlow to what Amich had or had not gotten done. But aside from the reliability of such testimony by Clauer, if it be deemed to suggest that Marlow was to any extent motivated by Amich's protected activities, such a statement appears to be entirely out of character for this supervisor of 1200 employ- ees, himself aloof or distant from a probationary trucker whom he had spoken to only once as he repeated the foreman's order if we credit Marlow, or not at all if we credit Amich. Further, this too pat alleged confirmation of the General Counsel's position must be viewed in the light of the long existing relationship between the Company and the Union and the absence of any allegation of other violation. I have not overlooked certain testimony by Amich which I am reluctant to dignify by reference . Amich went to the plant on Saturday, March 1 , and spoke with Clauer, who then asked King why Amich had been fired. When King said that he did not know, Marlow who was close by came up and asked Amich whether he remembered the tote box incident. Amich told us further that the "incident was so minute" that he did not know what Marlow was talking about. It then "dawned" on him, and Marlow added, "Well, that's one of the reasons you are fired." This was denied by Marlow and not mentioned at all by Clauer. Questioned further about this, Amich was positive in his denial that Marlow had said that he had been fired because of the "big stink" which he had made. He later admitted that Marlow did refer to the "big stink" and that it was "with the tote boxes." Nor, touching all of the bases, should we fail to mention Amich's testimony that Mann, when he told him he was being dischar ed, added that, because Amich had complet- ed 40 days 5 of his probationary period and would be in the Union within 5 more, Rose "probably ... didn't want to occurred is an alleged statement by Rose at one time to Bizzelle that another employee, who had been transferred from onejob to another, "had no nghts" because he was a probationer . If this was brought out to show treatment of probationary employees or Rose's opinion with respect to their rights, it is remote from the facts here and the issue of discrimination against Amich 5In fact, 32 days, then 13 more. HARLEY-DAVIDSON MOTOR COMPANY 545 take a chance on [Amich] being in the Union because [he was] a troublemaker, [he] would make trouble ." Aside from the fact that Mann lacks authority to discharge and that any such admission is well outside the scope of his functions, we can hardly rely on what the GeneralpCounsel correctly la- bels a "surmise" by Mann. To feel with Amich that Rose decided to terminate him "because of that oil incident," i.e., for behavior with respect to a matter which led to a prompt and willing arrangement by the Company, is to speculate to the point of assuming a venom and discriminatory intent entirely out of keeping with Amich's status and the apparent relationship between the Company, its employees, and their union. We have here a picture of the General Counsel skillfully attempting, with union support (the charge was filed by Amick as an individual) to bolster the position of an em- ployee who, whatever his previous experience or trainin , was unwilling to accept authority and to proceed "through channels" long recognized and available to him . Whatever may be said for facing necessary hardship , Amich was not confronted by such . He was not satisfied to present his complaints or grievances , justified or not, "decently and in order." Instead he questioned and was manifestly hesitant and reluctant to obey orders on the job ; and when this was observed by the plant superintendent the latter was unwill- ing to allow Amich to acquire permanent status and direct- el his discharge. Even if, whatever the reasonableness of the discharge (which we do not judgge except as it may indicate discrimina- tion), Marlow might have overlooked in an employee with permanent status Amich's attitude and action with respect to the tote boxes, we cannot say that it was unreasonable and discriminatory to discharge an employee who, although still a probationer, acted as Amich did toward his foreman and in the presence of the managing head of both Milwau- kee plants . There is no sufficient basis for concluding that the company was motivated wholly or in part to discharge Amich because he was "pressing for his rights, his rights under the law." There is no evidence that the Union repre- sentatives here involved, Clauer and Bizzelle, failed in any respect in their duties to employees, that the Company re- sented their activity, or that it had any more to fear from Amich in some uncertain future. The General Counsel's case falls flat on its collective suspicions. I find and con- clude that Amich's discharge was not violative. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record in the case , I recom- mend that the complaint be dismissed in its entirety.