A. O. Smith Corp.

National Labor Relations Board - Board Decisions

Jun 1, 1979

242 N.L.R.B. 685 (N.L.R.B. 1979)

A. O. Smith Corporation and Mark Seller. Case 30-
CA-4638
June 1, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On March 28, 1979, Administrative Law Judge Da-
vid S. Davidson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in response to the General Counsel's excep-
tions.
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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: Pursu-
ant to a charge filed on April 7, 1978, by Mark Seiler, an
individual, the complaint issued on May 26, 1978, alleging
that the Respondent, A. O. Smith Corporation, violated
Section 8(aX3) of the Act by reducing certain rates of pay
because of employees' union or protected, concerted activi-
ties. The complaint was amended at the hearing to allege
further that Respondent further violated Section 8(a)(1) of
the Act by the statement of a supervisor to employees that
incentive rates on their machines would not have been cut if
a grievance had not been filed over the rate on another
machine. In its answer, Respondent denies the commission
of any unfair labor practices.
A hearing was held before me at Milwaukee, Wisconsin,
on November 8, 1978. At the conclusion of the hearing oral
argument was waived and the parties were given leave to
file briefs, which have been received from the General
Counsel and Respondent.
A. O. SMITH CORPORATION
Upon the entire record in the case. including my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent manufactures automobile frames at its Mil-
waukee, Wisconsin, location, where it annually purchases
and receives materials valued in excess of $50,000 from
points outside the State of Wisconsin. I find that Respon-
dent is an employer engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Smith Steel Workers, Directly Affiliated Labor Union
19806. AFL-CIO, herein referred to as the Union, is a la-
bor organization within the meaning of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent's production and maintenance employees at
its Milwaukee plant have been represented for many years
by the Union under successive collective-bargaining agree-
ments. The dispute in this case arises out of a change in
incentive rates on three machines in department 1737, one
of Respondent's punch-press departments.
There are essentially two kinds of incentive rates applied
in the plant to incentive jobs. Supervisors' rates, also known
as Code 4 rates, are established by foremen at the outset of
new jobs without the aid of an industrial engineering analy-
sis or timestudy. Industrial engineering rates, known as I.E.
rates, are established by the industrial engineering depart-
ment. Normally an I.E. rate is set after startup problems
associated with a job have been eliminated and a normal
pattern of operation has developed. To arrive at an I.E.
rate, industrial engineers observe the job, reduce it to its
basic elements, timestudy it, and level the timestudy results.
After an I.E. rate has been developed, it is given to thejob's
production supervisor, who with his superiors decide
whether to apply the I.E. rate to the job in place of the
supervisors' rates. It is company policy to replace supervi-
sors' rates with I.E. rates as quickly as possible, but there
have been instances in which supervisors' rates have re-
mained in effect for a number of years.' Once an I.E. rate
has been applied to a job it may be changed only if there is
a change in the operation which tends to increase or de-
crease production. Establishment and application of an I.E.
rate may be grieved and taken to arbitration under the con-
tract. With certain exceptions not material to this case, any
adjustment in a rate as a result of a grievance is retroactive
to the date the rate was first applied.
I After an I.E. rate is applied to a job, there are still occasions when on a
daily basis the supervisors' rate may be applied because of temporary job
problems or conditions which interfere with normal production.
242 NLRB No. 106
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are 12 machines of varying design and capacity in
department 1737 called decoilers, referred to in the depart-
ment and in this Decision by their numbers. They uncoil
steel from large rolls, run it through punch presses, and
stamp out blanks from the steel for use as stock in Respon-
dent's production operations. Each time a coil is loaded
into a decoiler, the operators start the operation by feeding
the coil into the punch press and operating it manually until
the press is loaded to the point that it may commence auto-
matic operation. As a coil runs out, the operators must
again move the last portion of the coil into the press and
operate it manually. The incentive rates on these machines
consist of three parts corresponding to the three phases of
operation. A "coil in" rate for the initial loading and man-
ual operation, a rate for the period of automatic operation,
and a "coil out" rate for the final portion of the operation.
As of early 1977 the "coil in" and "coil out" portions of
the rates on Nos. 9, 10, and 12 were supervisors' rates which
had been in existence since those decoilers were placed in
operation several years earlier.' In the spring the industrial
engineering department developed I.E. rates for the "coil
in" and "coil out" operations on these three decoilers and
transmitted them to Dennis Gaines and Ken Ploeckelman,
the day-shift foremen for department 1737. After examin-
ing them, Gaines and Ploeckelman concluded that the I.E.
rates were too low and so reported to superintendent Har-
ris. Harris said he would check the matter out and would
get back to them. They did not put the I.E. rates into effect,
but asked Harris about once a month thereafter whether he
had heard anything further about the rates. Each time Har-
ris replied that they were still under investigation.
On September 23, 1977, the operator of No. 3 decoiler on
the third shift filed a grievance complaining that the "coil
in" and "coil out" rates applied to his decoiler, which were
I.E. rates, were too low because of deterioration of the de-
coiler. As of November 1977 this grievance was pending in
the third step of the procedure.
On November 28, 1977, at a daily production meeting
attended by Respondent's acting superintendent, Al Dober-
sek, who was substituting for the absent Harris, the general
supervisor of production control asked why production on
the No. 3 decoiler was low. Dobersek said that he would
investigate and find the answer.3 Dobersek went to depart-
ment 1737 and asked Ploeckelman for an explanation.
Ploeckelman said that they were having a problem with
respect to the rate on No. 3, that the operator wanted it
2A fourth decoiler, No. 6, not at issue in these proceedings, also had
supervisors' rates regularly applied to it. It is not clear from the record how
long it had been in operation or whether an I.E. rate had been developed for
it by the industrial engineering department at the time of the events at issue
herein.
3 Dobersek testified that he believed Gaines had been at the meeting but
had left before the problem in his department was discussed. Gaines testified
that Pl,,ckelman attended the meeting and told him that the production on
No. 3 had been questioned at the meeting. Ploeckelman testified that Dober-
sek came to his department and with Gaines present asked why production
was low. Although the differences in their versions raise credibility questions.
the testimony of all three is the same as to the substance of their conversa-
tions, and the passage of time between the events and the filing of the charge
makes it likely that they would have forgotten details relating to these events
by the time they were first called upon to remember them. I find that the
conflicts are not cause to generally discredit these witnesses and have relied
generally on the testimony of Dobersek and Ploeckelman whose recollections
were similar and appeared to be more complete than that of Gaines.
brought up to the supervisors' rates which were being ap-
plied on the Nos. 9, 10, and 12 decoilers. and that produc-
tion on No. 3 had slowed down pending resolution of that
issue. Dobersek asked if there were I.E. rates established for
9, 10, and 12, and Gaines said that there were but that they
had not been applied because he and Ploeckelman dis-
agreed with them. Dobersek told them he would get back to
them later and went to ask the industrial engineering super-
visor to go over the I.E. rates for Nos. 9, 10, and 12 with
him. After reviewing them Dobersek decided that they
should be applied. Dobersek returned to the decoiler de-
partment where he told Gaines and Ploeckelman to apply
the I.E. rates to Nos. 9, 10, and 12 in order to standardize
the department. Dobersek said that the rates were bound to
be grieved and that they could go through the grievance
procedure and get the matter resolved much faster and
come to an agreement.
The next morning, at the start of the first shift, the I.E.
rates were applied to Nos. 9, 10, and 12, and the first shift
operators immediately filed a grievance protesting that the
new rates were inadequate and not properly timestudied.
When the second shift operators arrived for work at
about 3 p.m. a group of them gathered in the washroom
before the start of work. Among them were Euclid Lewis
and Reacy Armstrong, who operated Nos. 9 and 10 on the
second shift. Ploeckelman was also present, washing his
hands at the end of his shift. Several comments were made
about the new rates and Ploeckelman's role in applying
them. Someone asked when other rates would be cut, and
Ploeckelman said that they could not be cut because they
were I.E. rates. Ploeckelman then said that one of the rea-
sons they had put the I.E. rates in effect on Nos. 9, 10, and
12 was because the operators wanted to get the rate on No.
3 raised to the rate on No. 9, which was a foreman's rate.
One employee asked if they had cut the other rates to keep
from raising the rates on No. 3, and Ploeckelman said,
"You didn't think we were going to bring the rate up on 3,
did you?"
As Lewis and Armstrong left the washroom they met
second-shift steward Seller. told him what Ploeckelman had
said, and asked if that was proper. Seiler said he did not
think so and suggested that they file a grievance with Ploec-
kelman, which they did on the following day, protesting
4 Ploeckelman Lewis, and Armstrong testified as to what was said in this
conversation, and steward Seiler testified to what Armstrong and Lewis told
him immediately after the conversation. Seiler's version of what he was told
about the conversation is almost identical with what Armstrong testified was
said, but there are differences between Armstrong's version and Lewis' ver-
sion, as well as between their testimony and Lewis' affidavit, which was
offered in evidence as past recollection recorded when Lewis became con-
fused on redirect examination and appeared to go blank. Ploeckelman's tes-
timony differs in some respects from all other versions. but Lewis' affidavit is
closer to Ploeckelman's testimony in some respects than to the testimony of
Armstrong and Seiler. In the most critical aspect of the conversation, all are
agreed that Ploeckelman related the introduction of the I.E. rates on Nos. 9,
10, and 12 to the dissatisfaction with the rate on No. 3. Bearing in mind the
inevitable differences in recollection after the passage of a year's time, I have
credited Ploeckelman as to his initial comment relating the new rates to the
dissatisfaction with the rates on No. 3 and find that he did not specifically
mention the grievance filed with respect to No. 3, as Lewis' March 1978
affidavit also indicates. However, I find that he did make a second statement,
not mentioned in his testimony but mentioned by the others, challenging
their credulity if they believed that Respondent would raise the rate on No.
3.
686
A. O. SMITH CORPORATION
that the rates on Nos. 9, 10. and 12 had been cut in retali-
ation for the grievance filed to raise the rate on No. 3.
At the time of the hearing in this case that grievance. as
well as the grievances over the rates on Nos. 3. 9. 10, and
12, were unresolved and pending in the grievance proce-
dure.
B. Concluding Findingv
The principal issue in this case is whether, as the General
Counsel contends, Respondent cut the "coil in" and "coil
out" rates on decoiler Nos. 9, 10. and 12 in retaliation for
employee protests over the rate on decoiler No. 3, and/or a
grievance filed over that rate 2 months earlier. There is no
question that Respondent had the right under the collec-
tive-bargaining agreement to replace supervisors' rates with
I.E. rates at any time. But it was not free to do so in retali-
ation for the exercise of employee rights to protest rates or
to file grievances.'
There is no question that there was a connection between
the employees' protest of the rate on the No. 3 decoiler and
the change in the rates on Nos. 9. 10. and 12. When Dober-
sek sought an explanation of the low production on No. 3.
Ploeckelman and Gaines related the low production to the
operator's complaint about the rate on No. 3 and tied that
complaint to the continued use of higher supervisors' rates
on Nos. 9, 10, and 12. Thus, the conclusion is warranted
that employee dissatisfaction, to which Dobersek's atten-
tion was drawn by the question about low production on
No. 3, led to the inquiry about the rates on 9, 10, and 12
and to their change.6 However, more is required to warrant
the conclusion that the change in the rates on Nos. 9, 10.
and 12 was motivated by a desire to retaliate against em-
ployees for expressing their dissatisfaction.
There is some evidence to support the General Counsel's
contention. The I.E. rates for Nos. 9, 10, and 12 had been
submitted to Ploeckelman and Gaines more than 6 months
before November 28. They had declined to apply those
rates because they thought they were too low. They had
sought guidance from Superintendent Harris and had re-
ceived no further information or instruction despite
monthly inquiries. Yet without waiting for Harris, for
whom Dobersek was substituting, to return from a tempo-
rary absence, Dobersek ordered the rates put into effect
within hours of learning of employee unhappiness over the
rates on No. 3. Ploeckelman's statement to the employees in
the washroom is a direct concession that the complaint over
the rate on No. 3 was one of the causes for applying the I.E.
rates to Nos. 9, 10, and 12. Although the reason Dobersek
started his inquiry was low production on No. 3. the action
taken by him not only was unlikely to increase production
on No. 3, but by his own testimony was likely to cause a
declire in production on Nos. 9, 10. and 12 as well. Thus,
I Allis-Chalmers Corporation, 229 NLRB 190 (1977).
' While Dobersek testified that he did not learn of the grievance over the
rates on No. 3 until after November 29, he clearly learned from Ploeckelman
and Gaines that employees were unhappy about the rate on No. 3. and, as he
testified, normally employees hold back on production until a grievance is
filed and the matter is settled. Thus, whether or not Dobersek knew that a
grievance had been filed, he had reason to believe a grievance over the rate
on No. 3 was likely, and Ploeckelman and Gaines knew that one had already
been filed.
an inference of retaliatory motivation can be drawn from
the precipitate timing of the change in rates on Nos. 9. 10,
and 12 after Dobersek learned of the complaint over rates
on No. 3. the admission that the complaint over the rate on
No. 3 was one of the causes of the change, and the seeming
inconsistency between the cause of Dobersek's inquiry and
the action he took as a result of what he learned.
However. the inference weakens when the facts are
viewed in a broader context. There has been a long bargain-
ing history between the parties, a collective-bargaining
agreement developed and refined over the course of mans
years, and a grievance procedure which emploees have
utilized for many years. There is no evidence, apart from
that claimed to appear in Ploeckelman's washroom state-
ment, that Respondent entertained or demonstrated any
animus against the Union or employee concerted activities.
There is no showing that the operators of Nos. 9. 10. and 12
were in any way involved in the complaint about the rate
on No. 3 or that their production had in any wa3 been
impaired as a result of that complaint. The relationship of
their rates to the slowdown came only from the fact that
supervision believed that the higher supervisors' rates on
Nos. 9, 10, and 12 contributed to the unhappiness over the
I.E. rate on No. 3. It was Respondent's policy. albeit with
glaring exceptions, to replace supervisors' rates with I.E.
rates as quickly as possible, and although the effort had
lagged, the industrial engineering department had proposed
such rates for Nos. 9, 10. and 12 long before the grievance
over No. 3 was filed.
Thus, at the time of the events here at issue there were
two issues which required ultimate resolution and which
Dobersek found were related. First was the low production
on No. 3 which supervisors attributed to the complaint
about its rate, and second was the delayed application of
I.E. rates to Nos. 9, 10. and 12 which supervision believed
fed the unhappiness over the rate on No. 3. While the solu-
tion adopted by Dobersek seemed designed to aggravate
the problem over the short run, it held more promise for the
long run because it promised to end the disparity between
the I.E. rate on No. 3 and the supervisors' rates on Nos. 9.
10, and 12 and put both problems on the track for ultimate
resolution through the grievance procedure. Ploeckelman's
statements to the employees in the washroom admit no
more than that Respondent sought to protect the rate on
No. 3 and reduce the rates on Nos. 9. 10, and 12 when the
unhappiness over the rate on No. 3 called the attention of
management to the continuation of supervisors' rates on
Nos. 9, 10, and 12. Ploeckelman's statements admit rela-
tion and causation, but not retaliatory motive.
I conclude in these circumstances that the inference of
retaliatory motive is not strong enough to outweigh the evi-
dence that the rates on Nos. 9. 10. and 12 were made for
business reasons to conform with company policy and to
bring about ultimate resolution of the rate issues pending in
department 1737. Accordingly, I shall recommend dismissal
of the allegation that the change in rates on the No. 9. 10,
and 12 decoilers violated Section 8(a)(3) and (1) of the Act.
'Lewis' testimony. although confused, indicates that Ploeckelman told the
men in the course of the washroom conversation that the continuation of the
superxisors' rates on Nos. 9. 10, and 12 never would have been noticed it the
grievance on No. 3 had not been filed
687
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances, I find further that Ploeckelman's
statements in the washroom were not threats of reprisal, but
merely communicated what was the fact, that dissatisfac-
tion with the rate on No. 3 called management's attention
to the continuation of the supervisors' rates on Nos. 9, 10,
and 12 and caused the I.E. rates to be applied to those
decoilers. I shall therefore also recommend dismissal of the
allegation of violation of Section 8(a)(1) based on Ploeckel-
man's statements.
CONCLUSIONS OF LAW
1. A. O. Smith Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The General Counsel has failed to establish that Re-
spondent has engaged in unfair labor practices as alleged in
the complaint.
Upon the basis of the above findings of fact and conclu-
sions of law and the entire record in this case and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
ORDER s
The complaint is dismissed in its entirety.
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.
688