Aeroquip Corp.

National Labor Relations Board - Board Decisions

May 23, 1974

210 N.L.R.B. 877 (N.L.R.B. 1974)

AEROQUIP CORPORATION $77
Aeroquip Corporation and District No. 77, Internation-
al Association of Machinists and Aerospace Work-
ers, AFL-CIO. Cases 18-CA-3893 and
18-RC-9588
May 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On February 21, 1974, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
consolidated proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
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
Administrative Law Judge's Decision in light of the
exceptions and brief and has decided to affirm his
rulings, findings,' and conclusions in both cases, and
to adopt his recommended Order in Case
18-CA-3893 and his Order remanding Case
18-RC-9588 to the Regional Director for further
appropriate action.
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 in Case
18-CA-3893 and hereby orders that Respondent,
Aeroquip Corporation, Lakeville, Minnesota, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that Case 18-RC-9588 be
remanded to the Regional Director for Region 18 to
count the ballots cast by James Axt and James
Macho and thereafter prepare and cause to be served
on the parties a revised tally of ballots, including
therein the count of said challenged ballots, and,
based thereon, to issue the appropriate certification.
i The Respondent 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
credibility 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, enfd. 188 F 2d 362 (C.A 3). We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: Case
18-CA-3893 is before me pursuant to charges filed June
11, 1973, and amended June 12, 1973, by District No. 77,
International Association of Machinists and Aerospace
Workers , AFL-CIO, herein called the Union, and a
complaint issued November 15, 1973 , alleging violations of
Section 8(a)(1) and (3) of the Act. In Case 18-RC-9588, an
election was conducted on July 9, 1973, pursuant to a
stipulation for certification upon consent election, which
resulted in four votes for and two against the Union, with
five challenged ballots . On December 7, 1973, the Regional
Director for Region 18 determined that a hearing on the
challenged ballots was necessary , and ordered that Case
18-RC-9588 be consolidated with Case 18-CA-3893. A
hearing was held before me in Minneapolis , Minnesota, on
December 19, 1973. Briefs were thereafter submitted by the
General Counsel and the Respondent , and have been
carefully considered.
Upon the entire record in the case , including my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent is a Michigan corporation , engaged in the
manufacture , sale, and distribution of flexible hose
connections and related products at its principal office and
place of business in Lakeville, Minnesota . During the year
ending December 31, 1972 , Respondent shipped products
valued in excess of $50,000 directly from its plant to points
outside the State of Minnesota . I find, as Respondent
admits , that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The Union
is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by interrogating employees on various
occasions on May 1973, and violated Section 8(a)(3) and
(1) of the Act by discriminatorily discharging employee
James Macho on June 7, 1973. As Macho was discharged
before the election of July 9, 1973, the resolution of the
challenge to his ballot is dependent on whether his
discharge was in violation of the Act. The resolution of
Macho's discharge also is determinative of three of the
other four challenges, for the parties stipulated that John
Sharp, Bradley Smith , and Randy Underwood were hired
to replace employees who struck in protest of Macho's
discharge, and if the discharge was an unfair labor
practice , then the strike was an unfair labor practice strike
and the challenges should be sustained . The final chal-
lenge , to the ballot of James Axt, can be resolved at this
point, for the parties stipulated that he was hired on June 6,
1973, to fill a bargaining unit position, and that he began
work at 8 a.m. on June 7, 1973. As the election was held
July 9, and the stipulated eligibility date was June 9, and in
the absence of any evidence that Axt was hired to replace
Macho, who was discharged later that same day, the
210 NLRB No. 155
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenge to Axt's ballot should be, and hereby is,
overruled.
B. The Facts
With the exception of alleged unlawful interrogation by
Personnel Manager Maurice Miller, who did not testify,
and one instance of alleged unlawful interrogation by Plant
Manager Clyde Stratton, the issues in this case turn largely
on the resolution of conflicting testimony, primarily as
between various employees and Supervisor Gordon
Broske , and also between various employees and Plant
Manager Stratton.
It is undisputed that James Macho began working for
Respondent in April 1972, as a warehouseman, that he was
promoted to the position of hose assembler not too long
thereafter, receiving a 50-cent per hour wage increase, and
that he received another wage increase about March 1.
Back in January, he received a "verbal warning" for
misconduct. He had been complimented for his work on a
number of occasions, and had come close to doubling his
output during his time as a hose assembler. Macho
attended two union meetings, on May 7 and 14, 1973,
signing a union authorization card at the second. On May
22, the Union, by letter, requested recognition from the
Respondent. Respondent's personnel manager, Maurice
Miller, came to the plant' and spoke to all employees at a
meeting . Miller said that he had heard that the majority of
the employees wanted the Union to represent them, and
wanted to know why. Miller also approached various
employees individually and asked whether they had any
complaints, and why they wanted a third party to represent
them.2
About May 24 or 25, Macho was given a verbal warning
(apparently reduced to writing a few days later) for
"standing around idle too much of the time" for "excessive
trips to the office."
Late in May, several days after the Union's request for
recognition was received by the Company, Supervisor
Broske assigned Macho to the work of washing hose
assemblies , and had two warehousemen doing hose
assembly work for a short period. General Counsel
witnesses Warren Moore and Louis Smith testified that
Broske said this was done because Macho was on the "shit
list." Broske denied having said this. Employee John
Gephart testified that, about the same time, Broske asked
him "who the ringleader was." This occurred while Broske
was visiting Gephart at the latter's house, where Broske
also said, according to Gephart, that he was "kind of a
middle man between Aeroquip and the people seeking
recognition by the union and wanted to know why he
wanted to be recognized." During the course of Broske's
visit, employee Searles called on the phone. Gephart
mentioned that Broske was there and would like to say
hello to him. When Broske got on the phone, he asked
Searles what his complaints were and why he was trying to
get the Union in. Searles testified to this latter conversa-
tion, and also to a conversation with Broske a few days
later, in the shop, where Broske asked if he had ever been a
member of a union, why he wanted to get into a union, and
whether Macho had been responsible for calling in the
Union. Although Broske admitted having visited Gephart
at his home, and having spoken with Searles on the phone
while there, he denied having said anything along the lines
testified to, and he denied making any reference to Macho
there or at any other time, as to whether Macho was
responsible for the Union.
About June 4 or 5, Macho went back to work on hose
assembly.3 On the evening of June 6, according to Broske,
an employee named Thompson, who was not called to
testify by Respondent, reported to Broske that Macho had
been initialling for inspections that were not done, and that
he was failing to keep scrap records. Broske testified that
he reported this to Plant Manager Stratton the next
morning. Stratton then asked Kenny Meyer to "dig out
paperwork relating to the last few weeks' work or longer, as
necessary . . . to prove or disprove . . . the correctness of
the statement made by Mr. Thompson to Mr. Broske," and
Meyer found some orders on which Macho had initialled
both for himself and for his coworker, Smith, on a form
calling for initials of both the employee who built and the
employee who inspected the particular order. Stratton then
called Macho in and "confronted" him with these orders.
According to Stratton and Broske, there were three orders,
one dated April 6, one the previous day, June 6, and one
undated, all of which were shown to Macho, and all of
which he admitted initialling in both places.4
Macho testified that he did initial the April 6 and June 6
forms in both places. He added that it was a common
practice for one of the two employees working on ajob to
put both sets of initials on the form, always with the other's
approval, and usually in a situation where the other
employee had dirty hands, or was doing something. Smith
testified to the same effect, that he had told Macho, "go
ahead, sign my initials" when his (Smith's) hands were
"terrible dirty and greasy from oil that you use on the
chucks of the crimp machine," particularly because they
were "reprimanded once for getting the paperwork too
dirty." Smith also said it happened the "other way
around," with Smith initialling for Macho, with the latter's
permission, in similar circumstances. Smith also testified
that Foreman Broske had done the same thing on at least
one occasion. Broske himself confirmed having put
someone else's initials on an order form. He said, "I have
initialled for someone else." He later agreed that he had
not only put others' initials on the forms, but that others
had initialled for him "in the early stages of the game."
Both were done "only with ... permission," said Broske.
Although Broske testified that this was "not a common
practice," he said that it happened "maybe once a week,
maybe twice a month." Broske also confirmed that he had
been present when Smith initialled for Macho, and vice
versa, on occasions.
Macho denied either having been confronted by Stratton
I Miller was personnel manager for the whole Company, not just the or 3 days before his discharge
plant here involved, and was located at another plant 4 The April 6 order form was initialled as built by "L.S " (Smith) and
2 As noted above, Miller did not testify These findings are based on the inspected by "J M " (Macho ), the June 6 one as built by "J M." and
credited testimony of Macho and Louis Smith inspected by "L.S " and the undated form had built by "J.M " and
3 The testimony of different witnesses shows that he went back either 2 inspected by "M R "
AEROQUIP CORPORATION 879
with the undated form , or having written either set of
initials-"J.M." or "M.R."-on the form. According to
Stratton, when Macho was shown the undated form, and
admitted signing both initials , Stratton asked Macho how
he justified putting the initials "M.R." for "inspected by"
when that employee was not hired until some time in May.
Macho replied "Oh, we've been doing that right along, ever
since we started inspecting again." Stratton said "Who ever
authorized you to discontinue inspection, or not comply
with our inspection procedures?" Macho then replied "Oh,
I guess I made a mistake. Sure, sure, we were inspecting all
along ." Stratton then, according to his testimony, told
Macho that he had not been keeping "scrap records," and
Macho dust shrugged his shoulders. Macho, as already
noted, denied arty confrontation with, or connection with,
the undated form. Stratton then, according to his testimo-
ny, told Macho that this was a serious matter, that he had
to dismiss Macho for "not complying with our procedures
of inspection," and told him to be off the premises "within
five or ten minutes."
I am constrained to resolve the conflicts in testimony set
forth above in favor of the General Counsel's witnesses.
Not only was I favorably impressed by them, while
regarding Broske's denials, in particular, as lacking in
conviction, but various other factors to me lead inescapa-
bly to that conclusion. Thus, Broske's report to Stratton
primarily dealt with the fact that Macho had initialled
order forms in both places, doing so, that is, for someone
else in one of the places. Yet, Broske himself admitted to
having done exactly the same thing, as well as having
someone else initial for him, and Broske admitted having
been present on a number of occasions when Smith
initialled for Macho, and Macho for Smith. With respect to
the allegation that Macho had not performed the inspec-
tion function on occasion, there is no direct evidence at all.
At most there is Broske's testimony that Thompson, an
employee who worked on hose assembly only the last few
days of Macho's employment, told him that Macho was
not inspecting. Yet Broske, who was the foreman of both
Macho and Smith from February through the time of
Macho's discharge, and who had observed each initial for
the other, apparently never saw the inspection function
being neglected-at least he did not so testify. Further-
more, whatever derelictions, in terms of the initials on the
form, Macho was technically guilty of, so was Smith, yet
only Macho was singled out for this treatment. While it is
possible that Broske, and in turn Stratton, received and
accepted the accusation of an employee, Thompson, brand
new to the hose assembly work, the very fact that
Thompson, the only one who, by hearsay, saw Macho
neglect to inspect an order, was not called to testify, is also
significant in resolving credibility.
On the basis of the above credibility findings, I find that
Broske interrogated employees Gephart and Searles about
why they wanted the Union, what their complaints were,
5 Although it is true that Macho had about the same time been the
subject of employee complaints for "standing around" I do not believe this
could account for Broske's characterization
6 There is no evidence, as mentioned above, that Macho in fact failed to
inspect any order he was supposed to, and I credit Macho that there was no
"admission ," or words tantamount thereto, of such failure during his final
interview with Stratton. I also credit Macho that only two orders were
and who the ringleader was, and that Respondent thereby
violated Section 8(a)(1) of the Act. The uncontradicted
testimony to the effect that Miller, at a group meeting, and
individually with the employees, queried them as to why
they wanted a union to represent them (he said "third
party" on occasion, but in context it is plain that "union"
was meant) also entailed a violation of Section 8(a)(l) of
the Act, and I so find. Finally, Stratton's own testimony
that he approached Smith and asked him what complaints
and gripes he had, even though he coupled the questioning
by saying to Smith "I'm only asking because our counsel
advised us to be open and ask about it," was in violation of
Section 8(a)(1) of the Act.
Having found that Broske asked two employees, Gephart
and Searles, whether Macho was the "ringleader" of the
Union, and despite their denials-which were true of
Macho being the "ringleader"-it is evident that Broske
believed Macho to be the leader. Broske' s assignment of
hose washing work to Macho, and his telling two
employees who questioned him about it that Macho was
on the "shit list," also strongly suggest that Broske's
antipathy toward Macho was based on his feeling that
Macho was responsible for bringing the Union in.5
There is no evidence that Stratton personally knew,
suspected, or believed that Macho was active in the Union,
or "responsible" for bringing it into the plant. However,
the discharge came as a result of Broske's complaints to
Stratton, his relaying of the alleged accusations made to
him by employee Thompson. It is thus immaterial that the
record fails to show knowledge on Stratton's part, for
Foreman Broske's knowledge is attributable to the Res-
pondent. It is also not material that Stratton may well have
acted, after Broske's complaint, because of the "forgery."
For it is evident, based on Stratton and Broske' s versions
of what occurred, that Broske never told Stratton that the
practice of initialling for each other was relatively frequent,
that Broske had been on both the giving and receiving end
of this practice, and had observed both Smith and Macho
in the past doing dust that quite openly, without ever
having mentioned it to them or anyone else .6 The receipt of
the Union's demand for recognition on May 22, coupled
with Broske's belief that Macho was the employee
"responsible" for the Union coming in, was plainly the
beginning of Macho's difficulties, the end coming with his
discharge on June 7. For all these reasons, I find that
Respondent discharged Macho because it believed that he
was the Union ringleader, and thereby violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
Respondent, by interrogating employees about their
union activities and that of other employees, by soliciting
employees grievances and complaints, and by discrimina-
torily discharging employee James Macho, engaged in
shown to him by Stratton at that interview, the April 6 and June 6 ones I
agree with the General Counsel that the initials on the undated order do not
appear to be in the same handwriting as the ones of the other two orders,
which were concededly made by Macho As I am not a handwriting expert,
I make no explicit finding on the handwriting itself , but the differences tend
to corroborate my credibility findings
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices affecting commerce within the
meaning of Section 8(axl) and (3) and Section 2(6) and (7)
of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it reinstate James
Macho , with backpay as provided in F. W. Woolworth Co.,
90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716, and post an appropriate notice. Having found
that James Macho was discriminatorily discharged, I shall
also recommend, pursuant to the stipulation of all parties,
that the challenge to his ballot be overruled, the challenges
to the ballots of Sharp, Underwood, and Bradley Smith be
sustained , and, as determined above, the challenge to the
ballot of James Axt be overruled, and that the Regional
Director take appropriate action with respect to these
ballots.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER7
representative , shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 18-RC-9588 be
remanded to the Regional Director to open and count the
ballots of James Macho and James Axt, to issue a revised
tally of ballots, and to take such further action as then
becomes appropriate.
r 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.
8 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
Respondent, Aeroquip Corporation, Lakeville, Minneso-
ta, its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in District No. 77, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, by discharging or in any other manner
discriminating against employees in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) Interrogating employees about their or other employ-
ees' union activities.
(c) Soliciting employees' complaints or grievances for the
purpose of interfering with their freedom of choice in a
representation election.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights, under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer James Macho immediate and full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered, in the
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer James Macho immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, and pay
him for losses he suffered as a result of his discharge.
WE WILL NOT discharge any employee for engaging
in union activities.
WE WILL NOT interrogate employees about their
union activities or solicit their complaints or griev-
ances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights under Section 7 of the Act.
AEROQUIP CORPORATION
(Employer)
manner set forth in the section hereof entitled "The Dated By
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examining or copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(c) Post at its Lakeville, Minnesota, plant copies of the
attached notice marked "Appendix." g Copies of said
ttlotice, on forms provided by the Regional Director for
IKion 18 , after being duly signed by Respondent's
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 316
Federal Building, 110 South Fourth Street, Minneapolis,
Minnesota 55401, Telephone 612-725-2611.