General Dynamics Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Dynamics Corporation, Electric Boat Divi- sion and United Steelworkers of America, AFL- CIO-CLC. Case 1-CA-12738 January 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On September 29, 1977, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief and a supplemental brief in answer to the General Counsel's statement of excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: A hearing was held in this proceeding June 6, 1977, in Providence, Rhode Island. The charge was filed and served on the Respondent February 11, 1977. The complaint was issued March 29, 1977, and amended at the hearing. The Respondent duly filed an answer to the complaint and amended it at the hearing. The issues are whether or not the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by threatening employee Melvin Farman that if he ever signed a union card he would never have a chance of advancement, and by telling him that all employees who wore union pins would be fired sooner or later and that the 234 NLRB No. 22 first mistake he made was wearing a union pin; and violated Section 8(a)(3) by discharging Farman because of his union activity. For the reasons detailed below, I conclude that the allegations of the complaint are not supported by a preponderance of the credible evidence, and recommend that the complaint be dismissed. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The complaint alleges, and the Respondent admits, that at all times material it has maintained a place of business at Quonset Point, Newport, Rhode Island, where it is engaged in the fabrication of steel products; the Respondent annually ships goods valued in excess of $50,000 directly to points located outside Rhode Island, and annually receives goods valued in excess of $50,000 directly from points outside Rhode Island. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of the Act. I1. LABOR ORGANIZATION The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. IIl. ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Supervisor Suzanna Ciummo told employee Melvin Farman on or about January 10, 1977, that if he ever signed a union card he would never have a chance for advancement, on or about January 24, 1977, that all employees who wore union pins would be fired sooner or later, and on February 3, 1977, that the first mistake he made was wearing a union pin, in violation of Section 8(a)(1); and that the Respondent discharged Farman on February 3, 1977, because he joined or assisted the Union, in violation of Section 8(a)(3). The Respondent denies the alleged 8(a)(1) statements were made and contends that Farman was discharged toward the end of his probationary period because he was insubordinate, insolent, and vulgar toward Supervisor Ciummo and because his work was unsatisfactory. At its Quonset Point facility, the Respondent employs about 5,000 employees in steel fabrication for submarines under contract with the U.S. Navy. There are approximate- ly 200 supervisors, 3 of whom are women. These events chiefly involve the pipe shop where there are about 340 employees, with 15 supervisors on the day shift, including Suzanna Ciummo. The Respondent admits, and I find, that the following individuals are supervisors within the mean- ing of Section 2(11) of the Act: Suzanna Ciummo - supervisor, pipe shop; George Pierce - supervisor, manu- facturing control; John Watson - senior supervisor; Donald Way - general foreman, pipe shop; and Arthur Fisher - pipe shop superintendent. Although employees at other facilities operated by the Respondent are represented, organizational activity among 132 GENERAL DYNAMICS CORPORATION the Quonset Point employees most recently got underway sometime before late December 1976. Employee-Relations Representative Timothy Irvin testified without dispute that, although the Company is not in favor of unionization at Quonset Point, there has been no overt campaign to defeat the Union. Melvin Farman received 9 weeks' training in pipefitting under the U.S. Government CETA program at the Ocean State Training Center adjacent to the Respondent's plant, where Ciummo was his instructor. The Respondent hired him November 15, 1976, as a pipefitter learner, with a 90- day probationary period, and assigned him to Ciummo's crew. On December 20, 1976, Farman signed an authorization card at his home. Thereafter he became a volunteer organizer, and solicited employee support and signatures away from the plant premises. He testified that he wore a 1- 1/2-inch union button and a union pen holder to work, without saying when he began to do so, that beginning on or around January 21, 1977, he wore a 2-inch volunteer- organizer button to work constantly, and that he observed no other employees in his work area wearing such a button.' Farman did not believe Ciummo ever criticized his work before he wore a union button. He testified that as a probationer he did a lot of repairs to mistakes made by other employees, and that Ciummo asked him to assist other employees if they needed help, and to show them how to do their work. Pipefitter learner Gail Russell testified that Ciummo told her to get help from Farman if Ciummo was not available, and that on one occasion Ciummo acknowledged Farman was more knowledgeable about a certain work function than she was. Although Farman could not be exact, he believed it was after he became a union organizer that Ciummo began constantly nagging at and picking on him, raising her voice on some occasions. He could not remember exactly what she said on those occasions, but his response invariably was merely to try to explain himself, he said. Farman testified that, during the week of January 10, 1977, somewhere in the pipe shop, Ciummo told him, "if I did sign a Union authorization card, that I wouldn't have a chance for advancement in the Company." Farman also testified that on January 24, 3 days after he began wearing a volunteer-organizer button, and on several other occa- sions, Ciummo told him, "sooner or later anyone wearing a union button is going to get fired, sooner or later." Farman gave the following account of his discharge on February 3, 1977: He was working on loan for another supervisor that day when employee Billy Birch came over and told him Ciummo wanted him. He told Birch he would be there in 5 minutes as soon as he finished a job he was in the middle of, as he had been instructed never to leave a job uncompleted. About 5 minutes later Ciummo came up to him accompanied by Supervisor George Pierce and started screaming because he had not come right away; she told him she was the boss and he should do things she said right I On cross-examination, Farman could not recall whether other employ- ees in his area wore union insignia or not. Employee Gail Russell testified that only Farman and employee Dan Felice wore union insignia in the pipe shop. Farman's two brothers, who are employed as pipefitters, both testified away. Ciummo and Pierce said Farman was to do what she told him to do. As he accompanied them back to his regular work area, they encountered Senior Supervisor John Watson. Farman reported to Watson what had happened, and Watson instructed him not to leave his job incomplete and to go back and finish it. After a huddle with Ciummo and Pierce then, Watson told Farman to go with Ciummo and to finish his incompleted job later. Either on their way to their work area or on their way back, Ciummo told him, "that that was the second mistake I made, going over her head. The first one was wearing a Union pin." Sometime later that day General Foreman Donald Way came to Farman's work station and asked him what happened. Way then told Farman he would have to stand by his supervisor. Way returned and informed Farman he was fired. Supervisor Ciummo flatly denied making the threatening remarks attributed to her by Farman, and denied ever discussing the Union with him. She testified she never saw Farman wear union insignia although a number of other employees, as many as 50, in the pipe shop did. She testified that, before she became a supervisor, she signed an authorization card for the Union and solicited employees to join; and that some of her close friends are union organizers. Manufacturing Control Supervisor George Pierce testified he never saw Farman wear a union button. General Foreman Don Way testified that he had been a member of the Metal Trades Union from 1962 until 1969; he said the first time he ever observed Farman wearing a union button was immediately after he was discharged. Pipe Shop Superintendent Arthur Fisher testified that he has been a member of the Metal Trades Union since 1946 and is still a member of that union, and that he has held high office in it. The Respondent's evidence was as follows: Farman was one of 12 beginning students in Ciummo's CETA class of whom 10, including Farman, completed the course and were employed as probationary employees. Ciummo rated him as an average student, about third from the bottom. During the course she provided him and one other student special help in math. General Foreman Way explained that all CETA students who completed the course were hired. Ciummo testified it was Way who assigned Farman to her crew, and Way testified Ciummo told him she was familiar with Farman as he had taken some extra training in her class and she would gladly take him on her crew because she knew his problem areas and could work with him to correct them. Ciummo testified that just before Christmas Farman told her he would be happy to move some rocks from her driveway as he needed some trees from her place for wood, but no deal was made as she did not have the equipment for removing the rocks. Ciummo testified that Farman's performance as a pipe- fitter learner was poor, and that his attitude toward supervision and toward taking instructions and corrections was poor. With regard to repairing other employees' that Farman wore a volunteer-organizer button and other insignia to work every day. One of them said that he himself, Dan Felice, and "a lot of guys" wore union buttons and that, "One time or another, almost everybody wore one. 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mistakes, Ciummo explained that on one occasion a computer-engineering error was made which affected a considerable amount of production, and that Farman and other employees were put to correcting a number of parts. She also said that, as the size of the crew assigned to her for supervision increased, she told the employees with the most experience including Farman to show the new people their way around the shop and to give them help if needed on very basic jobs and on heavy jobs. With respect to the Russell incident, Ciummo testified that on an occasion in December she was instructing Russell how to read a bend card when Farman came up to them and in the presence of most of the crew called Ciummo a vulgar name and said she did not know how to read the card herself. Not wishing to create a scene in the presence of the crew, Ciummo walked away, and waited until later in the day to tell Farman not to refer to her that way and not to interrupt when she was instructing another employee. Again, later in December, Ciummo said, she was working on a difficult job with experienced pipefitter Harry Dawson when Far- man butted in on their conversation and told Dawson that Ciummo did not know how to do that job. When she told him to be quiet until they could get the thing straightened out, Farman laughed and walked away. During the first week in January, Ciummo said, after receiving a complaint from an employee, she told Farman it was not necessary for him to check up on other employees' work, and in the presence of a number of crew members Farman responded in a loud voice that if she did not give a "God damn" about the job then he did not either. On another occasion in January, after Ciummo taught an employee how to use a certain clamping device, Farman told the employee it was not necessary to use the device. Later that day, Ciummo explained to Farman why she was teaching the operation, but he responded that she did not know her job. Also in January, when Ciummo assigned Farman to a task, he told her to go to hell, he would not do it. Although it was a rush job, and Ciummo told Farman he must do it, she discovered at the end of the day that he had not. The next morning she asked him why, and Farman said he did not have time and besides that, the pipefitter mechanic he was working with had told him in vulgar terms to ignore her. Farman added that he was fed up with Ciummo and all her orders and wanted to transfer off her crew, and Ciummo told him she would see that he got a transfer at the end of 90 days. A couple of hours later that day, Ciummo invited Farman to have a cup of coffee and asked him just what the problem was. He said he could not stand the job he was on any longer and that he was under a lot of pressure because other employees thought Ciummo was a bitch, and he graphically described certain indecent remarks about her which he said were written on the plant men's room wall. Ciummo suggested he erase the remarks and stop telling her about them, and asked Farman if he wanted to go back to bench work. When he said he did, she told him she would arrange it. Farman then apologized for the way he had spoken to her and said he did not really want to transfer out of her crew, that he had been upset. According to Ciummo, Farman had on other occasions embarrassed her by graphically referring to remarks on the men's room wall, telling her vulgar names he and other employees called her, and that the men did not really understand why they had promoted a woman to the position of supervisor. At the same time, Farman's work performance was poor, and he was making more than the usual number of mistakes, including making incorrect entries on cards documenting his jobs, and losing such cards, and being resentful of her efforts to instruct and correct him. Ciummo conceded she never gave Farman a written warning. But she and General Foreman Way both testified it was not the policy to give warnings during the probationary period, as it was the supervisor's task to help probationary employees discover their problems and coun- sel them in solving them. Farman, however, was unrespon- sive to her efforts, and Ciummo sought advice from General Foreman Way as to Farman several times. Ciummo's testimony with respect to the events of February 3, the day Farman was discharged, was as follows: Early that morning, one of Farman's jobs was returned by a quality control inspector for correction. Ciummo told employee Billy Birch to go down where Farman was working on loan and tell him to come to her work area to make a correction. An hour and a half later, the inspector asked Ciummo if the job had been fixed as it was needed as soon as possible. Upon learning from Birch that he had immediately delivered her message to Farman, Ciummo went to get him, asking Supervisor Pierce to accompany her as she expected a lot of lip from Farman. Ciummo and Pierce testified that, upon their arrival at Farman's workplace, Ciummo asked Farman if he received her message from Birch, and Farman said he did; she asked why he had not come, and he told her he did not have to listen to her, she was not his supervisor, and he wanted to finish what he was working on. Pierce told Farman that Ciummo was his supervisor, it was not for him to decide when to follow her instructions, and to just go on and do what she asked. After Farman exchanged a few words with Senior Supervisor Watson on the way back, Ciummo and Pierce explained what had happened, and Watson said to go ahead as they were doing. When Farman finished making the correction, and Ciummo was accompanying him back to his loan job, she told him she had his job evaluation on her desk and was not sure what to do about it as she was upset about his attitude and performance and did not know how he could get a good evaluation. Farman told Ciummo she was threatening him, and if she did not give him a decent evaluation he would make everybody in the shop walk out. Ciummo then said she was fed up and would not tolerate any more from him, and he told Ciummo to "go f- herself." Ciummo returned to her desk, filled out the evaluation as below average in every respect, and wrote down "Unsatisfactory probation- ary period." She took the form to General Foreman Way. They discussed Farman's vulgarity and his total perfor- mance, and Ciummo recommended termination. Later that morning, Way took Ciummo into Superintendent Fisher's office where Farman's performance was discussed at length and Ciummo and Way both recommended termination. General Foreman Way characterized Ciummo as a good supervisor who does not tolerate a lot of nonsense and who performs within her budget. He said she brought numerous 134 GENERAL DYNAMICS CORPORATION complaints to him that Farman was just not adapting to the system; that Farman questioned her when she tried to give him directions or correct him, questioned the system, giving her a lot of lip; and refused to cooperate in tracing lost documentation on the work. On one occasion, Way said, Farman had complained to him that Ciummo hassled him, blaming him for errors that were not his fault, but upon investigation had to agree that he was to blame for the particular incident that brought him there. After his February 3 conference with Ciummo, Way said, he advised her to think over her termination recommenda- tion and he spoke to Farman, Pierce, and Quality Control Supervisor Lloyd Venolino. Way told Farman he could not give his foreman a lot of lip each time she tried to correct him as he had done for 2-1/2 months. Farman asked to be transferred to another crew, but Way explained employees were not transferred during their 90-day probationary period because they could not get along with their foreman. Farman agreed he had given Ciummo a hard time but felt she was out to get him. Way informed Farman that disciplinary action was in order including possible termina- tion, and Way would get back to him. When Way questioned Pierce, Pierce said Farman had a snotty attitude and he did not see why one of Way's foremen would have to take such abuse. Venolino told Way he had been present a couple of times when Ciummo tried to correct Farman and Farman gave her a bad time, telling her he thought the whole system was lousy and he did not see why he had to go back and correct something that was not his fault. Venolino said something should be done to change the man's attitude, to turn him around. Way sent for Ciummo, and they agreed they had done everything possible in 2-1/2 months to turn Farman's attitude around, and that he should be terminated. Way and Superintendent Fisher testified in corroboration that, when Way and Ciummo described Farman's employment history as detailed above, and made their recommendation, to Fisher, he concurred in the termination. Employee Relations Representative Irvin testified with- out dispute to the effect that termination of employees for unsatisfactory probationary periods is not uncommon at Quonset Point and that a considerable proportion of such terminations are for inability to adapt to the system. By way of rebuttal, Farman denied ever using the vulgar and obscene words, attributed to him by Ciummo, to her or anywhere in the plant; he said he never criticized her to other employees or told her he had done so; he never went into the plant men's room because it was too filthy and he did not know what was written on the wall; and he never told Ciummo she could not handle her job or criticized her performance. Gail Russell testified that she once heard Ciummo herself say "God damn," one of the expressions 2 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. Farman purportedly used in her presence to which she objected on religious grounds. Upon careful consideration of the above testimony and the entire record, I find that the Respondent's witnesses adhered more closely to the truth than General Counsel's witnesses did. In the basic credibility conflict between Farman and Ciummo, Ciummo's demeanor was the more impressive for candor, while he was more evasive and less able to recall details. Moreover, she received more precise corroboration than Farman. Farman's brothers did not support him in the areas they covered as stoutly as perhaps was anticipated, and they did not squarely corroborate each other. I do not believe Gail Russell's memory was as accurate as she thought it was. There was no substantiation of either the alleged antiunion threats by Ciummo to which Farman testified or any similar statements made by her to or in the presence of anyone else. And her prounion background and associations make it most unlikely that she would make such remarks or would recommend his termination on the basis of antiunion considerations. In addition, there is no evidence that any other supervisor or member of management gave voice to antiunion senti- ments, and the prounion background of most of them, as well as the absence of an overt antiunion campaign, makes it similarly unlikely that they would have condoned the termination of Farman, or terminated him, for discrimina- tory reasons, even though the Company was not in favor of the facility's being unionized. In view of Ciummo's and Way's explanation of the purpose of the probationary period and the Respondent's practice toward employees during that period, which as far as I know conforms with the general purpose and practice, particularly where, as here, CETA trainees are involved, it does not signify that no written warnings were issued to Farman and that he was not terminated sooner than he was. Nor does his affable offer of a private deal to break rocks for Ciummo in exchange for firewood seem inconsistent with his obvious resentment against her being in a position of authority over him in his employment. The overwhelming weight of the credible evidence shows therefore, and I find, that Farman was terminated because he was insubordinate, insolent, and vulgar toward his supervisor and because his work was unsatisfactory, as the Respondent contends. I conclude that no violations of the Act have been committed, and recommend that the complaint be dis- missed. Upon the foregoing findings of fact and conclusions of law and the entire record, I hereby issue the following recommended: ORDER2 The complaint is dismissed in its entirety. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 135