Vought Corp.

VOUGHT CORPORATION, MICHIGAN DIVISION 975 Vought Corporation, Michigan Division and Walter S. Halushka. Case 7-CA-12458 August 18, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On May 21, 1976, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed counter-exceptions, an answer, and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed. 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 his findings DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On November 3, 1975, Walter S. Halushka filed with the Regional Direc- tor for Region 7 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that LTV Aerospace Corporation violated Section 8(a)(1) and (3) of the Act by reprimanding and suspending Halushka and restricting him in the exercise of his role as a shop steward or union officer. On December 23, 1975, the Acting Re- gional Director issued a complaint and notice of hearing alleging that Michigan Division-LTV Aerospace Corpo- ration violated Section 8(a)(1) and (3) of the Act by repri- manding and suspending Halushka for filing grievances and engaging in concerted protected activities. By its duly filed answer LTV Aerospace Corporation Michigan Divi- sion alleged that its name was now changed to Vought Corporation, Michigan Division, admitted the jurisdic- tional allegations, but denied the commission of any unfair labor practices . On the issues thus joined the matter came on for hearing before me on March 22 and 23, 1976. All parties were present and Respondent and General Counsel were represented by counsel. All parties had an opportuni- ty to call and examine witnesses and to adduce relevant and material evidence. On the entire record in this case and in consideration of oral argument by both the General Counsel and Respon- dent and a brief submitted by Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Michigan Division-LTV Aerospace Corporation, here- in called Respondent, is a Delaware corporation licensed to do business in the State of Michigan, where it is engaged in the manufacture , sale, and distribution of Lance missiles at the city of Warren, Michigan. Respondent annually real- izes gross revenue in excess of $1 million and purchases goods and materials valued in excess of $50,000 which are delivered to its Warren plant directly from points located outside the State of Michigan. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED Local 809, United Automobile, Aerospace and Agricul- tural Implement Workers of America, (UAW), herein called the Union, is a labor organization with the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A Background Walter Halushka, the Charging Party herein, is em- ployed by Respondent as a first grade tooling machinist. He is the financial secretary-treasurer of the Union. As a union officer , Halushka was permitted to be ex- cused from his work for varying periods of time to engage in union business and in order to do this clocked out and in again when he returned from union business. Under the terms of the union contract employees who wish to file grievances have the right to ask their immediate supervisor to provide a shop steward with whom to file the grievance During the year 1975, Halushka filed 17 such grievances, 13 of them complaining about the distribution of overtime, an issue with which he was apparently at odds with other union officers and with Respondent. All of the overtime grievances had been rejected by the Respondent and the Union had not carried them forward with the ex- ception of one. Halushka had appealed to the International 225 NLRB No. 142 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union to reinstate the grievances . The record does not re- veal the position taken by the International ; however the union president thereafter asked the Respondent to rein- state the grievances which had been rejected . Respondent declined under the terms of the contract to do so. According to the testimony of the supervisor of both tooling and the cutter grinding room, Badarak, because part of the reason for Halushka's grievances was that there was more overtime in the cutter grinding department which is separate from the toolroom in which Halushka normally worked, he was assigned on a temporary basis to the cut- ter-grinder room. The cutter-grinder room is apparently understaffed and normally one employee from the tool- room is assigned to that place. According to the testimony of Foreman Fuchs, which I credit in this regard , employees assigned to the cutter-grinder room are not supervised by the toolroom foreman unless they are doing toolroom jobs which have been assigned them either because there was too much work in the toolroom or because there was too little work in the cutter-grinder room.' After Halushka had been assigned to the cutter-grinder room he was given a job shaping a certain type of pin to specifications. This job consisted of 36 pieces and it took him about 80 hours to perform it. While he was working on this job under the supervision of Badarak and the cutter- grinder room leadman, Fuchs went on vacation and his place was taken by the Night Forman Harmon. After Fuchs went on vacation , on July 8, another order of 22 pieces of the same type of pin was assigned to Halushka. On July 15 having spent approximately 29 hours working on the job he was continuing to work on it when Harmon came to him between 7:30 and 8 in the morning. As soon as Halushka saw Harmon he asked for a steward . Accord- ing to his testimony Harmon answered , "I'm going to get you-." Halushka asked him how he was going to do that and Harmon answered in effect that he would think of something. Later that morning Harmon and Badarak came over to see Halushka and checked his work . Harmon told Halushka that he was going to give him a white slip which is the plant expression for a warning slip and he asked if Halushka would sign it. Halushka said that he would not sign it and he wanted to see his steward. He was permitted to do so and filed the second grievance of the morning.2 Later that afternoon according to Halushka, Harmon again addressed him and asked him what was taking so long with the work he was doing. Halushka tried to explain the various problems he was having with the job and, ac- cording to his testimony, Harmon threatened that he would not be around much longer . According to Halushka's testimony throughout July 15 and 16 Harmon was continually watching him, checking his work, and complaining about his slow progress . About noon on July 16 Halushka told Harmon he wanted to see his steward and file a grievance that he was being harassed. The stew- ard was called and the grievance was filed . About 3 p.m. on July 16 Harmon and Badarak returned to Halushka's ' It appears that both rooms had the appropriate tools for many of the jobs assigned to either 2 The first grievance had to do with the assignment of overtime on the weekend preceding July 15 machine and checked the work together . They picked up the blueprints and went back to Badarak's office . Accord- ing to Halushka's testimony , about 2:30 on July 16 Halush- ka asked Badarak to speak to Harmon about harassing him. At this time Badarak told Halushka that he was con- cerned about the time that was being used up and Halush- ka answered that a man from the engineering department, Mr. Hair, had told him there were no time estimates on the job or that the time had not been used up. Badarak at that time told him that there were something like 60 hours allo- cated to the job and said that he would have a talk with Harmon about bothering Halushka at his work. Just before quitting time Harmon returned to Halushka and told him that he was issuing another white slip for misuse of company time with a 1-day suspension to be served on the following day. Halushka asked for a steward and Harmon said that he knew Halushka would do so and another grievance was filed . After the suspension Halushka returned to the job and after other delays caused by union business and his vacation completed the job in something over 60 hours. According to the testimony of Badarak, the particular job in question had always been done by the cutter-grinder room under an engineering contract . The job of 22 pins that gave rise to the instant situation was the first "produc- tion" job on that particular type of pin. The production job had been sent to the toolroom whereas the engineering jobs which are charged to research and development had al- ways been sent to the cutter -grinder room . For this reason, according to Badarek the supervision of Halushka was un- dertaken by Harmon since it was a toolroom job , rather than directly by Badarek as would have been the case had it been and R and D job. Harmon denied that he stated on the morning of July 15 anything to the effect that he was going to get Mr. Ha- lushka. He testified that the grievance Halushka wanted to file at that time had nothing to do with him because he had not posted the overtime and that his name would go on the grievance only because he was the then current supervisor of Halushka . He testified further that he was used to griev- ances being filed and they arouse no rancor in him. Harmon further testified that he was disturbed by the slow pace at which Halushka was working when he gave him the first white slip. According to his computation, the job should have been finished by that time and it was less than half done. When he continued checking because the job was not being done fast enough, it appeared to him that Halushka was slowing down rather than speeding up on the work and when he had still not completed half the job at the close of business on July 16 he determined to give him a second warning notice and a suspension of I day for wasting the Company's time. He denied that the filing of grievances had anything to do with his determina- tion to give the suspension or the warning notices. Discussion and Conclusions Although most of the time at the hearing was spent in litigating whether or not Harmon was justified in his stated belief that Halushka was wasting time in the fabrication of the 22 pins, the sole issue before me is whether the real VOUGHT CORPORATION, MICHIGAN DIVISION 977 reason for the white slips and the 1-day suspension was Respondent's pique at the filing of grievances by Halush- ka. The General Counsel relies heavily on the testimony of Halushka, supported by that of another employee, that when he asked to file the first grievance on July 15 Har- mon said that he was going to get him. It is interesting that neither of the grievances filed by Halushka alleging that he was being harassed by Harmon make any mention of this statement nor does the initial affidavit taken by a Board agent after the filing of a charge. It was only when a second affidavit was taken, after an affidavit was taken from Carl Luttrell, Jr., which stated that Harmon had made this statement that Halushka recounted this incident. It is in- conceivable to me that Halushka would not have men- tioned this incident to either his shop steward or to the Board agent on the occasion of the taking of the affidavit and it is difficult to believe that a Board agent so informed would not have included it in the affidavit. No adequate explanation is offered by Halushka for his failure to have recounted or recalled this incident prior to December 1975, when the second affidavit was taken. I find Halushka's testimony unsatisfactory in many re- gards On cross-examination he appeared at times to be evasive and was at all times strongly influenced by his sense of grievance. On the other hand, I found Harmon evasive on cross-examination and his testimony is directly contradicted by that of Fuchs and sometimes by that of Badarek. With regard to the job that was done on the pins, the records of Respondent show that another mechanic, Wen- chovsky, ran 40 identical pins in January 1974 and took approximately 50 hours to do it. Halushka himself had done 36 in about 80 hours previously. John Delmotte cred- ibly testified that he had worked on such pins a number of times and he would estimate that 22 pins would take from 44 to 66 hours because he estimated 2 to 3 hours a piece. The 22 pins in fact took over 60 hours. Respondent appar- ently keeps records of the time spent on all of these jobs. The records are kept differently for production jobs and for research and development orders. Also it appears that the pressure to produce is greater on production jobs. Badarek testified that he had computed that the 22 pins should take 35 hours. He also testified that Harmon had computed the job when it was first assigned to the tool- room and estimated 35 hours. However, Harmon testified that he did not estimate the amount of time the job should take until after the morning of July 15 when he had a "gut reaction" that it was taking too long. The evidence as a whole with regard to the job is con- fused and inconclusive but it is enough to say that Harmon's complaint is not so far out of line that it gives rise to an inference that he gave the white slips and the suspension for discriminatory reasons. Nor on the other hand does it appear that the time spent was so intolerably long that it gives rise to an inference that the warning slips are Justified, as was found by the court in D.C. Internation- al, Inc. v. N.L.R. B., 385 F2d 215 (C.A. 6, 1964) cited by Respondent. As I have indicated I was not impressed with the credi- bility of the witnesses offered by the General Counsel other than Mr. Delmotte nor by Respondent other than Fore- man Fuchs . Neither Delmotte nor Fuchs had direct evi- dence to offer with regard to the incidents which we are here concerned. Under these circumstances, I cannot see that either the inference suggested to me by the Respon- dent that the sanctions it imposed were justified or by the General Counsel that they were discriminatory are strong enough to prevail. ORDERS Accordingly, I shall recommend that the charge in the instant case be dismissed because I cannot find by a pre- ponderance of the evidence that the allegations of discrimi- nation and interference, coercion, and restraint are sup- ported. I so recommend. In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes