Allis-Chalmers Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1977

229 N.L.R.B. 372 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allis-Chalmers Corporation and Trent Morrison. Case
30-CA-3526
April 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On October 28, 1976, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed an answering 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
attached Decision in light of the exceptions and brief
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
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.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on June 17, 18, and 21, 1976, at
Milwaukee, Wisconsin. The charge was filed on February
19, 1976, by Trent Morrison, an individual. Complaint
issued April 26, 1976, alleging that Allis-Chalmers Corpo-
ration, herein called Respondent, violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
by discriminatorily assigning Morrison onerous jobs in
disproportionate numbers and suspending him for I day
because of his union and/or protected activity. The answer
admitted the jurisdictional allegations but denied the
commission of any unfair labor practices. These allegations
and the answer frame the issues.
All parties appeared at the hearing and were afforded full
opportunity to be heard and present evidence and
I General Counsel filed a motion to correct transcript. I find the
requested corrections warranted and they are granted by Order issuing
simultaneously herewith.
2 Morrison testified concerning this incident in two different ways. At
one point it appears from the record that Fowler was unhappy with
Morrison for some unknown reason, threatened to fire him for whatever
that reason was and simply added the notion that his father, even though he
was a steward, would not be able to prevent it. During later testimony.
229 NLRB No. 61
argument. General Counsel and Respondent filed briefs.'
Upon the entire record, my observation of the demeanor of
the witnesses and after giving due consideration to the
briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation, is engaged in the
production of tractor castings at its facility in West Allis,
Wisconsin. During the past calendar year, a representative
period, Respondent purchased and received at its Wiscon-
sin location, goods valued in excess of $50,000 directly
from points located outside the State of Wisconsin.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
Local 248, International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America
(UAW), herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Morrison's history of employment
Trent Morrison was hired by Respondent on April 2,
1973, and employed in the cleaning room of the foundry,
Department 1591 in the classification, casting chipper-
production. He had been recommended to the Company
by his stepfather Nevers Pittman, an employee who later
became a steward.
Morrison was initially assigned to work on the first shift
but after a short period of time was transferred to the
second shift and assigned to work under Foreman Quincy
Gill and Argie Fowler. Morrison testified that from the
very beginning Fowler took a disliking to him. His dislike
was manifested through Fowler's cursing him and watching
him so closely that he could not leave his work station. In
an incident which occurred in 1973, Fowler approached
Morrison at his work station and told him that he was
going to fire him and added that his father was not going to
help him.2 Despite Fowler's attitude toward Morrison,
however, it does not appear from the record that he was
treated any differently from the other employees with
respect to work assignments during the 3-month period
that he worked for Fowler. Fowler testified, however, that
Morrison during this period failed to attain standard under
Respondent's incentive plan but there is no indication that
Morrison was in any way reprimanded for low efficiency at
that time.
Morrison stated that he thought Fowler had said that he was going to fire
him because his father was a steward. I find that the former statement was
made, rather than the latter, and is not violative nor evidence of union
animus but merely recognition of the probability that the father would in all
likelihood attempt to save his son's job for him. Moreover, Morrison
testified that Fowler harassed him before he learned that Pittman was his
father.
372
ALLIS-CHALMERS CORP.
On May 6, 1974, Morrison was transferred to the
coreroom of the foundry and assigned the classification of
coremaker-production finish. His foreman was Jeff Anton-
ic.
On August 2, 1974, Morrison was discharged for
excessive absenteeism but was reinstated without loss of
pay or benefits following an arbitrator's decision that the
discharge was improper because the Respondent had failed
to give Morrison and the Union proper notice that
Morrison's medical reasons for his absences were not
acceptable, such notices being required by the contract. 3
Although Morrison had been working under Antonic at
the time of his discharge, upon reinstatement on August 1 I,
1975, Morrison was once again assigned to the foundry
cleaning room to work in the classification of casting
chipper-production under Fowler and Gill, a job which
Respondent contends and General Counsel does not
contest is of like status and pay as the one he held when
discharged. Approximately six terminated employees have
been reinstated at Respondent's plant following arbitration
but none to the foundry other than Morrison. There is no
evidence that Respondent discriminated against any of
these other reinstated employees.
The nature of the work
The type of work to which Morrison was assigned upon
reinstatement required him to pick out for grinding various
parts from a large box delivered to his work station by a
forklift truck. The box contained a mixture of different
types of castings, each requiring a somewhat different
grinding operation to be made upon it on a stand grinder,
after which handtools had to be used in order to reach the
more inaccessible parts of the castings. After the grinding
operation was completed on the castings they were stacked
on a pallet which was eventually removed by a forklift
driver who then replaced the stacked pallet with another
one to be similarly stacked by the employee.
Production was covered by a Standard Hour Incentive
Plan which allowed a specified length of time to grind each
type of casting. Each operator was required to grind several
different types of castings, and each casting had its own
specific time allotment assigned to it for completion of the
grinding operation. Though the time allotment or standard
assigned to each type of casting had been carefully
calculated and was the subject of the collective-bargaining
agreement in effect at the plant, the operators had
preferences as to the types of castings they wanted to work
on, and found, for one reason or another, some types easier
on which to make standard than others. If, based on these
standards, an operator produced in excess of 108 percent of
I Although the arbitrator found in Morrison's favor, he noted that the
evidence adduced at the hearing "raised serious questions about the medical
justification for Grievants' absences."
4 Respondent contends that the assignment was made by Gill alone
because Fowler was not working the same shift as Morrison. Morrison and
Pittman testified that he was assigned to grinder 3 by Fowler. Respondent
did not offer company records into evidence to support its contention that
Fowler and Morrison were on different shifts. I therefore credit Morrison
and Pittman with regard to this matter.
I It should be noted that this statement, alleged by Morrison to have
been made by Fowler in August 1975. is similar in content to the statement
allegedly made in 1973 see fn. 2, supra. I credit Fowler that he did not make
that number of pieces he was expected to produce in an 8-
hour day, he received incentive pay calculated on the basis
of the number of extra pieces produced as translated into
hours. An operator who produced over standard efficiency
(108 percent) was said to be "making out." If he failed to
operate at 108 percent efficiency, he was considered to be
performing in a substandard manner, producing less than a
full 8 hours' work per day, but nevertheless received a
guaranteed hourly rate. Operators who consistently failed
to meet the standard were subject to reprimand or
disciplinary action.
Morrison's assignment to grinder 3
When Morrison was reinstated in August 1975, he was
assigned by Fowler 4 to work on grinder 3, apparently with
the approval of Fowler's superior, Quincy Gill. About 2
weeks after Morrison was back on the job, Fowler
approached him at his work area and initiated a conversa-
tion during which he stated that he was surprised to see
him, that Jeff had made a mistake, that he was going to get
him and that his father wasn't going to help him this time. 5
Fowler denied making this statement.
General Counsel contends that, upon the reinstatement
of Morrison, Fowler began to treat him differently than he
had prior to his termination. More specifically General
Counsel charges that because Morrison's father is a
steward and because he was successful in obtaining a
favorable decision from the arbitrator, including reinstate-
ment and backpay, Respondent discriminated against him
by assigning him to grinder 3, a machine upon which
General Counsel contends it is difficult, if not impossible,
to produce up to the standard required. Additionally,
General Counsel further contends that Respondent dis-
criminated against Morrison for the same reasons by the
method used to assign him jobs, by assigning him an
inordinate number of tractor weights to grind, a particular-
ly onerous item to work with, and through general
harassment, treating him in a disparate manner relative to
other employees. Respondent contends that Fowler was
unaware of the arbitrator's decision providing for reinstate-
ment of Morrison with backpay. I find Respondent's
position untenable in light of employee Maye's credited
testimony that, on one occasion following Morrison's
return, Fowler described Morrison as "the guy who got the
backpay." Fowler was aware of the arbitration case,
decision and Morrison's reinstatement.
Grinder 3
As noted above, immediately upon reinstatement, Morri-
son was assigned to work on grinder 3 where he remained,
such a statement and if he said anything similar to it, I interpret it as
meaning that Fowler felt that Mornson was a substandard employee who
never should have been reinstated on the basis of what he. Fowler, felt was a
technicality and that. assuming Momson continued his substandard
performance, he would terminate him, and his father, Nevers Pittman,
would not be able to save his job this time as the Union had done when
Morrison was terminated by Jeff Atonic. It should also be noted that
Morrison never filed a grievance over this alleged threat, never discussed it
with his fellow employees although he frequently discussed with them other
conversations which he had had with Fowler, and most importantly,
Pittman could not recall Morrison discussing the threat with him. Under the
circumstances I cannot credit Morrison.
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except for a few weeks, until April 1976. Although other
employees were occasionally assigned to grinder 3 they
usually were, after a short period of time, reassigned to
other grinders. Only Morrison remained on grinder 3 for
any extensive period.
Grinder 3 was referred to by Supervisor Quincy Gill as
his "punishment grinder." 6 According to General Counsel,
grinder 3 had several unsatisfactory features connected
with it that made it difficult and almost impossible to meet
the required production standard under the contract. Thus
there was testimony that grinder 3 had a smaller grinding
wheel than grinders I and 2, no conveyor or hoist, and the
area in which its operator worked was so congested that
material drivers delivering parts to be ground were unable
to place these parts as close to grinder 3 as they could to
grinders I and 2. Although the witnesses who offered this
testimony did not work on grinder 3 for more than a few
days, they did work sufficiently close to it to be able to
observe the problems connected with its operation. More-
over, they credibly testified that when they did work on
grinder 3 they could meet production standards on castings
other than weights, but when grinding tractor weights, they
could not meet the standard. This was because whereas
grinders I and 2 were specifically set up to handle tractor
weights, grinder 3 was not. Thus, General Counsel's
witnesses testified that the grinding wheels on grinders I
and 2 are larger, coarser, harder, and more long lasting
than those used on the other stand grinders. These wheels,
since they are harder, maintain their width longer and are
therefore better for grinding tractor weights, in particular
the hook section of the weights. If the stand grinders
cannot be used to grind the hook areas of the tractor
weights because they are worn or for any other reason, the
weights must be ground by hand. This cuts down on
production and may result in the operator failing to meet
the production standard. Respondent concedes that grind-
er 3 is different from grinders I and 2 but points out that at
least with respect to the size of the grinding wheels, grinder
3 is the same as grinders 4 through 8. In this regard
Respondent's witnesses testified that the size of the wheel
made no difference but when asked about the comparative
softness of the stones, Respondent's supervisor of industri-
al engineering stated that he did not know whether or not
there was a difference in this regard. I therefore credit
General Counsel's witnesses on this point because they
clearly demonstrated greater personal familiarity with the
equipment in this respect than did Respondent's witnesses.
Similarly, employee Maye testified that the fact that
grinders I and 2 were operated in conjunction with the use
of a conveyor whereas grinder 3 was not so equipped, made
it impossible to meet the production standard on grinder 3
when tractor weights were being ground because without
the conveyor the operator had to hand-carry the weights,
and the walking time thereby made necessary for the
operator on grinder 3 cut down significantly on his actual
grinding time and therefore his production. Moreover, the
conveyors could hold more weights than could the tables
used on grinders 3 through 8 so that there was less
interruption in production for operators of grinders I and
6 Employee Maye credibly testified that when he was transferred to the
first shift, he requested that he be assigned to operate grinder 3 because
2. It was not until Morrison was about to be transferred in
April 1976 that grinder 3 was equipped with a conveyor.
Although Respondent's witnesses testified that the pre-
scribed method for running tractor weights does not call
for the use of a conveyor, I find this argument of little
moment inasmuch as operators did in fact use the
conveyors when available and did thereby improve their
production. In this respect I find that operators of grinders
I and 2 were benefited by the use of the conveyor and
operators of the other grinders were relatively inconveni-
enced by the lack thereof.
Similarly there was testimony from several of General
Counsel's witnesses that grinder 3 was inferior to grinders I
and 2 because the former did not always have a crane at
the operator's disposal, whereas the latter did have this
convenience to aid the operator in lifting the 60- to 80-
pound tractor weights from the bottom of the box in which
they were delivered thus making handling easier. As was
the case with regard to the use of the conveyor, I find
Respondent's contention that the procedure for running
tractor weights does not provide for the use of a hoist to be
irrelevant, since it was the practice of the grinder operators
to use hoists when available and the use of them was
clearly a convenience. Likewise I am convinced by the
testimony of General Counsel's witnesses that grinder 3
was inferior to grinders I and 2 with respect to the
availability of adequate air pressure and space in which to
work. The supply of air pressure is indispensable to any
employee attempting to meet standard because inadequate
air pressure adversely affects the speed with which the
grinding can be done. Grinder 3 does not have full air
pressure when grinder 2 is in use. None of the other
grinders have similar problems. Similarly the spaces
around grinders I and 2 are adequate to permit the proper
positioning of boxes of parts, whereas the forklift truckdri-
vers have difficulty positioning the boxes of parts for the
operators of grinders 3 through 8. This is because the
cramped service aisles at grinders 3 through 8 necessitate
additional waiting for parts to be delivered and require an
excess of walking for the operators of grinders 3 through 8
to get from their box of parts to their grinder, then to their
pallet with a consequent loss of incentive working time for
both reasons. This is particularly true where the parts being
ground are the heavier ones such as tractor weights.
Though Argie Fowler testified on behalf of Respondent
contrary to General Counsel's witnesses that boxes of parts
could be placed equally close to the operators of grinders 3
through 8 as to grinders I and 2, I credit those neutral
employee witnesses called by General Counsel.
From the testimony of the witnesses called by General
Counsel it seems patently clear that grinders I and 2 are far
superior to grinder 3 and that the testimony of employees
Maye, Knox, and Stark prove conclusively that it is
impossible for an employee to meet standard on grinder 3
if he is working on tractor weights alone. Similarly, the
testimony to the effect that Supervisor Gill referred to
grinder 3 as the "punishment grinder" is credited, for I
believe that management was aware of its drawbacks. The
testimony is not so clear as to the relative superiority of
grinders I and 2 were already in operation. To this request Gill replied that
he was "too good a man," that grinder 3 was his "punishment grinder."
374
ALLIS-CHALMERS CORP.
grinder 3 as compared to grinders 4 through 8 although
employee Maye testified that grinder 3 was less cramped
for space than some of the others and was a better machine
than grinders 4 and 5. Employees Maye and Stark were
assigned to grinder I and employee Knox to grinder 2.
Morrison worked on grinder 3 and an employee named
Boyd worked on either grinder 4 or 5. The record does not
indicate who was assigned to the other four grinders
although each employee is assigned to a particular grinder.
Grinders 7 and 8 were broken down for at least a part of
the time.
Although the record reveals that Maye, Stark, and Knox
met the standard of production on grinders I and 2 and
Morrison never succeeded in meeting the standard, it
cannot be concluded that it was solely because grinder 3
was inferior that Morrison failed to make standard because
there appears little or no difference between grinder 3 and
grinders 4 and 5, upon which Boyd was employed, and
Boyd successfully met the standard on many occasions.
Moreover, Stark, the grinder with the highest efficiency,
testified that although he could not make out on grinder 3
if he worked solely on weights, he could make out if he
worked on castings other than weights. Since, according to
documentation in the record, Morrison did not work on
weights for some 10 weeks after his assignment to grinder 3
on August 11, I find such assignment to be nondiscrimina-
tory. From the totality of testimony, I also conclude that
the grinder assigned to Morrison upon his return to work in
August 1975, although inferior to grinders I and 2, was not
necessarily inferior to grinders 4 through 8. I1 also find that
Morrison's assignment to grinder 3 was not the sole reason
for his failure to meet the standard requirements because
employee Boyd was successful in making standard on
grinder 4 or 5 which I have found equally inferior to
grinders I and 2. The cause of Morrison's failure to make
standard must, at least in part, be found elsewhere,
particularly since it was quite possible to make out on
grinder 3 when grinding castings other than tractor
weights.
Tractor weights
General Counsel contends that Morrison's failure to
make standard is not only the result of his being assigned
to work on grinder 3 but a combination of factors
including his assignment to grinder 3, Fowler's discrimina-
tory means of assigning jobs to Morrison, plus the
inordinate number of tractor weights assigned by him to
Morrison. The grinding of tractor weights, in and of itself,
General Counsel contends, is an onerous job and the
testimony offered by witnesses tends to support this
contention. Thus, the tractor weights weigh, on the
average, 68 pounds whereas other items ground by the
stand grinders are much lighter; lift arms for example
weigh 20 to 30 pounds. If a grinder has the use of a hoist
and conveyor as did the operators of grinders I and 2, the
job is considerably less onerous and therefore it is easier to
meet the standard. This, in part, accounts for the ability of
Stark and other operators of grinders I and 2 to meet
standard. The story is different, however, where the
operators of grinders 3 through 8 are, as noted above,
working without these conveniences. The record is replete
with testimony that the employees find these particular
pieces far more difficult to work with than the smaller
pieces and have trouble meeting the standard. I so find.
General Counsel contends that Fowler assigned jobs to
Morrison in a discriminatory manner, by assigning him an
inordinate number of tractor weights as compared to other
less onerous jobs. There is little doubt that Fowler had full
authority to assign whatever jobs he wished to whatever
operator he chose without his decisions being questioned.
He was admittedly in such a position of authority that he
could, in fact, accomplish the discriminatory result attrib-
uted to him by General Counsel if he chose to do so. On
the other hand, he could also assign work in such a way as
to make certain that each of the grinders working under
him received a relatively equal number of difficult or easy
jobs, and these figures would be reflected in the company
records made available as exhibits at the hearing. If,
however, Fowler's primary consideration was increased
production without regard to either discriminatory motiva-
tion or equalization and fairness in assignment, the pattern
of assignments would not necessarily or conclusively prove
the existence of either subjective consideration. Thus,
Fowler might determine that although one job is far more
difficult than another, and it would be unfair to assign it in
inordinate numbers to one employee rather than to
another, he might nevertheless choose to do so if in his
considered judgment, greater production would result.
Similarly, Fowler might reason that an employee incapable
of meeting the standard on any job assigned, might just as
well be given the more onerous tasks since, as no loss of
production would result, the more able employees would
be rewarded by being assigned fewer onerous tasks and the
less able employees might thereby be induced to try harder
to meet standards on the easier jobs if they were made
aware that failure to make standard on the easier jobs
would result in their being assigned more onerous jobs.
Any or all of these motivations could determine the basis
upon which a foreman might assign jobs, given the
authority which Fowler possessed.
Tractor weights are considered by Respondent to be a
priority piece and every effort is made to see that
production of tractor weights takes precedence over the
production of other pieces. Unhappily, the employees, as
noted above, consider the job of grinding tractor weights
one of the least desirable assignments and while manage-
ment emphasizes the necessity of pushing the production of
tractor weights to meet the required quota, the employees
appear to do whatever they can to avoid grinding these
specific pieces. The result of this dichotomy of interests is a
certain amount of jockeying between lower management,
Fowler, attempting to implement Respondent's program,
and the employees, who avoid, where possible, the more
onerous tasks. Thus, whenever an employee reporting to
work finds that the box that has been left next to his
grinder by the previous shift contains a large number of
tractor weights, he will switch boxes in order to obtain a
box containing fewer weights. Employees switch boxes,
according to credited testimony, as often as they can "get
away with it." Admittedly, the employees switch boxes
only when Fowler is not around. Fowler, however, if he
notices employees working on other pieces when tractor
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weights have to be done pulls those boxes and replaces
them with boxes containing tractor weights. He frequently
does this as a matter of course in order to get the priority
work done first, not simply because an employee has
switched boxes. With regard to this matter, General
Counsel contends that Fowler was in the habit of
permitting other employees to switch boxes while discrimi-
natorily keeping Morrison from doing it. Employee Knox
testfied, however, that Morrison seldom attempted to
switch boxes because, in his opinion, it would not have
done him any good since he would be back on weights
again as soon as Fowler saw him working on something
else. But Knox also testified that on occasions he would
have other pieces taken away from him by Fowler and
given weights to grind. This, according to Knox also
happened to other employees. He testified also that
sometimes there was nothing to work on but tractor
weights and on other occasions he would work on tractor
weights though other pieces were available because he
knew they had to be done, that tractor weights were
priority pieces.
When an employee finishes grinding a box of parts, he
usually searches out another box containing the easier
pieces to work on and, if he is not assigned a specific job by
the foreman, he is permitted to choose his own work in this
manner. All of the employees are free to choose their own
work if there is nothing of a priority nature which must
take precedence. Knox noted, however, that whenever
Morrison attempted to choose his own work, he would
invariably be assigned tractor weights by Fowler. He stated
that this had not always been the case but that he first
noticed Fowler's disparate treatment of Morrison in late
November after he, Knox, returned from an extended
leave. Knox also testified that beginning in late November
1975, Fowler and Knox engaged in frequent and loud
arguments during which Fowler criticized Morrison's lack
of production and absenteeism and Morrison, in turn,
objected to his being assigned weights to grind. The
documentary evidence, in so far as it bears on Knox's
testimony concerning these arguments between Fowler and
Morrison, indicates that although Morrison returned to
work on August 11, 1975, he was not assigned to work on
tractor weights until pay period 45, October 27 through
November 2, 1975. During this 10-week period running
from August II through October 27, 1975, despite the fact
that Morrison was assigned none of the onerous tractor
weights to grind, he nevertheless failed to meet the
production standard as required even once and averaged
over the period little over 50 percent efficiency. It is clear
from the testimony and supporting documentation, then,
that if Morrison was in fact the victim of disparate
treatment, involving the assignment of onerous tasks, such
treatment did not occur, at least until Morrison was back
on the job for 10 weeks and had been completely free of
such assignments for that period of time. Also, it should be
noted that from August 11, 1975, until February 22, 1976,
when he filed the instant charge, Morrison was responsible
for only 6 percent of the total production of the tractor
weights in question whereas Stark, Maye, Boyd, and Knox
produced 24 percent, 20 percent, 16 percent, and 8 percent,
respectively. I find then, that at least during the first 10
weeks of reemployment, Morrison was not disparately
assigned more onerous tasks than other employees.
Morrison himself testified that on occasions he asked
Fowler if he could choose his own jobs. Fowler on one of
these occasions commented that Morrison was there to
work, not to play games, and that Fowler would choose the
jobs for Morrison. When Morrison and Fowler discussed
Morrison's low efficiency, Morrison blamed it on the
assignment of weights. Fowler, however, told Morrison
that he was walking around too much and that this was the
reason for his low efficiency.
There seems little doubt that Morrison was the victim of
disparate ill treatment. His testimony that Fowler made
him restack his work because "it was not pretty enough"
and on other occasions sent back work to be reworked
after it had passed inspection is credited and lends
credence to the allegation that Morrison was also discrimi-
nated against by the assignment of an inordinate number
of onerous jobs. The question remains, however, when and
for what reason was Morrison the recipient of such
treatment.
General Counsel, in support of its allegation concerning
the assignment of an inordinate number of onerous jobs
points out that during pay periods 7, 8, and 9 in February
1976, Morrison worked 78.25 percent, 51.25 percent, and
86 percent of his total working time, respectively on tractor
weights while the other operators worked a far lesser
percentage of their time on this type of work. From this
cold data it would appear rather conclusively that for one
reason or another Morrison was, in fact, assigned to work
on the tractor weights a greater part of his working day
than were the other grinder operators during the period
February 2, 1976, through February 20, 1976. But granting,
arguendo, that such assignments were disparately made, a
similar evaluation of the assignments made during the
previous 3 pay periods indicates that during pay periods 4,
5, and 6 covering the period January 12 through February
1, 1976, Morrison worked only 29 percent, I percent, and
48 percent of his working day on tractor weights. During
pay period 4, employees Boyd and Knox spent 58 percent
and 43 percent of their time on tractor parts compared to
Morrison's 29 percent. During pay period 5, Stark and
Maye spent 90 percent and 19 percent of their time
grinding tractor weights, while Morrison spent only I
percent of his time at such work. Suddenly in pay period 6,
the percentage of time spent by Morrison on grinding
tractor weights dramatically increased from the 1 percent
in pay period 5 to 48 percent in pay period 6, while Maye,
Stark, and Knox spent 22 percent, 38 percent, and 12
percent, respectively, on the onerous job in question. It
would appear that if Respondent or one of its officers
suddenly decided to make life difficult for Morrison by
having him assigned an inordinate number of tractor
weights, the decision and implementation of that decision
occurred during pay period 6, that is, between January 26
and February 1. By pay period II, the first week in March,
Morrison was spending 100 percent of his working time
grinding tractor weights. Since Respondent is clearly
concerned with production efficiency as evidenced by the
44 warning notices issued to its employees documented in
the record, the question cries out for explanation as to why
376
ALLIS-CHALMERS CORP.
Respondent should insist in January and February 1976 on
Morrison spending an even larger proportion of his
working time grinding tractor weights when over a period
of months it must have become apparent to everyone that
Morrison was unable or unwilling to meet the standard.
Fowler's testimony that he treated all employees equally
insofar as assignments are concerned is credited for the
early months of Morrison's reinstatement. I further find,
however, that in late January or early February 1976,
Fowler did, despite his denials, undertake a campaign of
harassment against Morrison by assigning him a grossly
inordinate number of onerous jobs, namely the grinding of
no. 26-788100 tractor weights. Where testimony of neutral
employees concerning incidents in support of this allega-
tion was offered without context as to time, the incidents
described are deemed to have occurred in this latter period
of Morrison's reemployment, and is so credited, largely
because documentation in the record supports the conclu-
sion that the assignment of an inordinate number of tractor
weights did not occur until Morrison was back on the job
for several months.
Morrison's production and relationship with Fowler
As noted above, from August 11, 1975, until October 26,
1975, Morrison was assigned no tractor weights to grind
and despite this fact failed to make out or even produce
over 87 percent of efficiency. During this period he
averaged approximately 52 percent of efficiency. His
supervisor, noting his low production and his very frequent
absences from his work station, asked on several occasions
why "he was walking," that is, why Morrison was away
from his machine. On these occasions Morrison would
reply that he was going to the men's room. Fowler testified
that every time he turned his back, Morrison would be
gone.7 Other witnesses testified to the fact that Morrison
was frequently away from his work station and that Fowler
berated him numerous times because of it. Fowler further
testified that he talked to Nevers Pittman, the steward and
Morrison's father several times to see if together they could
"rehabilitate" him to increase his efficiency. Pittman
acknowledged that this had occurred and though he
promised Fowler that he would help try to bring up
Morrison's efficiency, he was unable to do anything about
Morrison's failure to produce or about his wandering away
from his machine, primarily because he was busy with his
own duties. When Fowler counseled Morrison to remain at
his work station, he neither received a reply from Morrison
nor any later indication of improvement either in efficiency
or in his work habits.
On November 12, 1975, Fowler sent Morrison a written
warning, reminding him of an earlier verbal warning
7 I credit Fowler's testimony that Morrison was frequently away from his
work station and for that reason Fowler watched him more closely than
other employees. Based on these findings, I conclude that Fowler's closer
observation of Morrison was legitimately work related, not harassment
allegedly in violation of the Act.
s The records indicate that Momson production efficiency during the 3
previous weeks had been 41 percent, 60 percent, and 66 percent.
9 Contrary to this contention, Respondent issued warnings to a large
number of employees for failure to produce efficiently and disciplined
several of them severely.
i0 I interpret this statement to mean that Fowler intended to continue to
concerning his low production efficiency, noting Morri-
son's subsequent failure to improve and warning him
further that continued low efficiency could result in
disciplinary action, possibly a layoff based on his inability
to produce. On November 17 Fowler followed up his
written warning to Morrison with a note to Foundry
Foreman Olson in which he stated that Morrison had been
given both verbal and written warnings about his low
production but that his efficiency had gone down anyway. 8
Fowler advised Olson that Morrison had been working on
the same type of castings on which other employees had
been making out successfully. He stated that it seemed to
him that Morrison did not want to make out and drew
Olson's attention to the fact that Morrison had been going
to the nurse just about everyday and concluded, "The man
just walks around." Meanwhile, when Morrison received
the written warning from Fowler on November 12, he
contacted Pittman and complained about it. The result was
that a grievance was filed November 14 in which Morrison
claimed that his low efficiency was not always his fault
because the foreman was requiring him to do excess work
on each piece. The grievance charged Respondent with
prejudice against Morrison on grounds that other employ-
ees in the department were not required to produce 100
percent efficiency while Morrison was threatened with
layoff unless he met the standard.9 Shortly after Morrison
filed the grievance, Fowler returned a copy to Morrison
and stated, "These monkey ass grievances ain't going to
help you none because it just shows the company how
much I want my job." 10 Morrison's grievance was rejected
on November 24 on grounds that his foreman was not
requiring him to do excess work, the pieces assigned to him
were the same as those assigned to other employees" who
were able to meet standard while performing the same
work, and Morrison too would be required to meet the
same standard demanded of other employees.t 2 Mean-
while, on November 18 General Foreman Olson, on the
basis of Fowler's communication, made the decision to
assess a 1-day disciplinary layoff for low efficiency against
Morrison. The official disciplinary notice was placed in
Morrison's file on November 20. At this time Morrison was
producing at 74 percent efficiency while Stark, Maye, and
Boyd were producing at 140 percent, 151 percent, and 179
percent efficiency. Production of the onerous tractor
weights by Stark, Maye, Boyd, and Morrison during this
period were 782, 426, 613, and 114 respectively.'3 Employ-
ees Towsend and Butler, not otherwise involved in this
case, produced 256 and 295 tractor weights, respectively.
Thus, even taking into account the fact that Morrison was
on disciplinary layoff November 18, it appears that he was
underproducing while not disparately overburdened with
tractor weight assignments. I conclude from these facts that
insist that Momson produce up to standard, and Momrrison's propensity to
file grievances would not keep Fowler from persisting in pressuring
Morrison to produce.
it No documentation was offered by Respondent or General Counsel to
prove or disprove this assertion as it refers to this period of time.
12 This grievance was not processed further.
13 From September 22, 1975, through mid-November. Knox was on
leave and according to Fowler's credited testimony. Momson operated
grinder 2. Though operating one of the better grinders, Momson still failed
to make standard. It is also of note that Morrison was offered the
opportunity to operate grinder I but declined the offer.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the I-day suspension assessed against Morrison was based
on his failure to produce efficiently and not for reasons
violative of the Act.
With Morrison's continued failure to make out on the
stand grinders, Pittman requested that Fowler transfer
Morrison to the production line to work on transmissions
to see if his production efficiency might increase. Fowler
agreed and both Pittman and Fowler instructed Morrison
on the operation. Morrison worked in this area 3 days but
failed to make production, evidently because of inexperi-
ence with the work. On the third day, following a near
accident involving one of the 3,000 pound castings almost
falling off the conveyor, Fowler took Morrison off the job
and put him back onto the standup grinder. According to
Fowler neither Pittman nor Morrison objected when
Fowler decided to take Morrison off the transmissions.
General Counsel points to Fowler's decision to transfer
Morrison from the transmission line back to the stand
grinders as an indication of animus. However, it appears
patently clear that since Fowler need never have offered
the transmission job to Morrison in the first place and did
so only at the behest of Pittman, he did so in order to help
raise Morrison's efficiency and returned him to the stand
grinder job only after he failed to work out on the
transmission line. If Fowler bore Morrison animus at this
time, he would never have transferred Morrison to the
transmission line initially. On the contrary, Fowler's
several attempts at obtaining Pittman's cooperation in
trying to rehabilitate Morrison and his agreeing at
Pittman's request to try Morrison on the transmission line
convinces me that, at least at this time, Fowler bore no
animus toward Morrison either because Pittman was his
father or because he won the arbitration case against
Respondent. Fowler by mid-November had been aware for
years that Pittman was Morrison's father and not only
never took any action against Morrison before but seemed
to get along and cooperate with Pittman to benefit
Morrison whenever possible. He certainly demonstrated no
animosity toward Pittman so I can conceive of no possible
reason why he should bear Pittman's son ill will because he
is his son while bearing no apparent ill will toward Pittman.
Similarly, if Fowler was concerned with the reinstatement
of Morrison following his winning of the arbitration award,
14 In late December an incident occurred which General Counsel
contends proves both animus on the part of Fowler toward Morrison and
discriminatory motivation. Maye credibly testified to the occurrence of this
incident generally as follows: Fowler approached Maye in the lunchroom
cafeteria toward the end of the shift and initiated a conversation with him
by asking him if he had made out yet. Maye replied that he had, whereupon
Fowler suggested that Maye could bring up his production even further.
Maye, who was chipping at the rate of 10 hours per night, suggested that if
he increased his production the Company might cut the price on the job.
Fowler then opined that Maye and Stark were the only employees who
could make so many hours. At this point Maye asked Fowler if he read "The
Trouble Shooter," a newsletter, distributed by a certain group of employees
who call themselves the Trouble Shooters. Fowler then stated that Jim
Allison, a metallurgist, regarded by Maye as a member of management, had
come down to the foundry "to see who that Dulberger guy was." Maye
identified Dulberger as the probable publisher of "The Trouble Shooter."
Fowler continued the discussion by stating that the Company was going to
set a trap for Dulberger and that he was going to walk right into it. What the
trap was or precisely why it was being set for Dulberger, is not clear from
Maye's testimony. The implication is, however, that it probably had
something to do with an article appearing in the newsletter which Allison
and Fowler found objectionable. Maye testified with regard to this
he would certainly have manifested his animosity when
Morrison was first reinstated on August 11. Instead, as late
as mid-November he continued to try to find means to help
Morrison meet standard, either by transferring him or by
seeking to get his father to convince him to increase his
production. Where the Fowler/Morrison relationship was
marked by friction, it invariably reflected Fowler's dissatis-
faction with Morrison's inefficiency or the latter's dissatis-
faction with his assignments which I find at this point in
time, mid-November, to have been fair and equitable.
The week following Morrison's I-day layoff his produc-
tion increased from 74 percent the week previous to 94
percent, a mark he had never before attained and which he
never quite equalled thereafter. The increase in Morrison's
production during this week is all the more remarkable
when considered in light of the fact that he produced 251
tractor weights, more than he had ever produced up to that
time. The following week, however, his production efficien-
cy once again dropped to 64 percent, less than half the
production efficiency of Stark, Maye, or Boyd whose
marks were, respectively, 136 percent, 131 percent, and 139
percent. During this week these three employees produced
477, 324, and 750 of the onerous tractor weights respective-
ly while Morrison produced 21. Comparing Morrison's
production efficiency during pay periods 49 and 50 with
that of the other named employees, and comparing his own
production efficiency during these 2 weeks, one with the
other, and taking into consideration the type of jobs they
worked on, the conclusion is unavoidable that Morrison
was capable of producing at far greater efficiency than he
did, regardless of the types of castings he worked on, but
for one reason or another refused to produce enough to
meet standard. This was certainly as clear to Fowler as it is
to anyone analyzing this record.
During the period December 8 through 14 Morrison was
assigned a relatively large number of tractor weights
though far fewer than Maye, Boyd, or Knox. Nevertheless
his production efficiency for that period was 83 percent, his
third highest production since his reinstatement. The other
grinders efficiency production ranged from 126 percent to
168 percent for that period. Morrison then took off from
December 15, 1975, through January 4, 1976.'4 When he
returned to work, he produced at 64 percent of efficiency
conversation, "We did get on the subject of people making out, and in other
words, troublemakers in the foundry area. We discussed a few of them. Some
of which was-John Pip and Trent Morrison." Fowler identified Dulberger
also in terms of his having trouble making out and stated that the Company
was going to get rid of a few guys, implying Morrison and Pip and
mentioning Dulberger by name. General Counsel appears to argue that
Respondent was discriminatorily motivated when it threatened to get rid of
Momson and Dulberger because the former was a son of a steward who had
been successful in winning his arbitration case, reinstatement and backpay
while the latter was the author of a newsletter critical of management and an
activist who espoused the cause of labor and openly discussed walkouts and
other union related matters. My analysis of the conversation, however,
convinces me that not withstanding the historic place which the term
"troublemaker" has held in unfair labor practice cases since the passage of
the Wagner Act, its usuage in this particular conversation, referred to those
employees such as Dulberger, Pip, and Morrison, who consistently failed or
refused to make standard. Maye so testified when he stated, "We did get on
the subject of people making out, and in other words, troublemakers in the
foundry area." Maye's description of the conversation clearly indicates that
the main theme that ran through it was the failure of certain employees to
make out and that these individuals were considered troublemakers. That
one of them was publishing a newsletter critical of management and another
378
ALLIS-CHALMERS CORP.
the first week back, the week of January 5-11 while
producing among other castings, 221 tractor weights; 81
percent of efficiency during the week of January 12-18
while producing 163 tractor weights: and an extremely low
46 percent during the week of January 19-25 while
producing only five tractor weights among the several types
of castings he was assigned to grind. On January 27
Morrison received another written reprimand for ineffi-
cient production. The steps that had been taken in an effort
to have him increase his production were outlined in it, and
it was noted that since none of the steps taken had been
successful, additional disciplinary action would be taken
against him at some future date. The written reprimand
was signed by Fowler.
On January 27, the date of his written reprimand,
Morrison filed another grievance in which he complained
that he was unfairly treated because he had been told to
chip castings from a box other than the one located at his
working station. According to the grievance, Mc'rrison then
asked that the box be moved to his working station so that
he could work on the pieces contained in it but the foreman
refused his request. He noted that in order to work on the
pieces, he had to hand-carry them back to his work station.
Morrison complained that other employees were not
required to hand-carry castings in this manner and implied
that he was the object of discrimination. The superinten-
dent's decision on this grievance noted that Morrison had
been assigned to grind weights but that he wanted to work
on lift arms. Fowler requested Morrison to move to the
grinding station where the weights were located but
Morrison insisted on carrying the castings back to the
machine on which he was working. It is not clear from the
testimony or the exhibits precisely whose position was
correct but it is clear that once again there was friction
between Fowler and Morrison with regard to work
assignments on January 27. This was payroll period 6
during which, according to the records, Morrison produced
at 71 percent production efficiency and produced 123
tractor weights, as compared with 362 for Stark, 97 for
Maye, and 92 for Knox. Although the records do not
indicate that Morrison was particularly overburdened with
assignments of tractor weights during this week, the
testimony reflects that friction between Morrison and
Fowler was excessive. Whether the excessive friction was
the result of Morrison's 46 percent productivity the week
before or his filing of the grievance on January 27 cannot
be ascertained with certainty, at any rate, no immediate
reaction to Morrison's grievance was evident during the
period following its filing. Thereafter during pay periods 7,
had won a case in arbitration was coincidental to the determination to get
rid of those who refused to produce. John Pip was one of those named by
Fowler as a troublemaker of whom the Company would rid itself and there
is no evidence that he was involved in any protected activity. He was simply
identified as a nonproducer. Finally, Maye testified that when he
complained to Fowler that Dulberger was bothering him and interfering
with his production by insisting on engaging Maye in conversations about
union related matters, Fowler had Dulberger transferred, not to a
punishment grinder or some other more onerous work but to a machine
where he was subsequently able to meet production standards, thus
satisfying Maye who was no longer bothered. Fowler who obtained
additional production and Dulberger who was satisfied because he was
making out. It appears certain that if Respondent were motivated by
animus, it would have handled the situation differently.
8, and 9, February 2-8, 9-15, and 16-22, respectively,
Morrison produced at the efficiency rating of 61 percent,
77 percent, and 43 percent. During these periods he
produced 328, 216, and 254 tractor weights, respectively,
more than anyone else during the first two of these periods
and the third highest number produced by any employee
during the third week.
In analyzing all of the figures contained in the documen-
tation offered as exhibits, I find that Morrison was not
discriminated against with regard to onerous work assign-
ments until late January or early February 1976, and that
at that point in time he was assigned an inordinate number
of tractor weights to grind. The reason for the sudden
heavy assignment of onerous work at this time is not
certain but in all probability it reflected Fowler's total loss
of patience with Morrison's refusal to meet the production
standards when assigned the same kind of work as other
employees, particularly during the weeks immediately
preceding these assignments. Whether Morrison's apparent
ploy of filing a grievance 5 whenever he was reprimanded
for failing to meet production standards was part of the
consideration behind the onerous work assignments is not
clear from the record nor did General Counsel allege or
argue that this was a basis for the alleged discriminatory
assignments of work. Moreover, the record reveals that
despite Fowler's notice of January 27 that he would receive
additional discipline for failure to produce, the record does
not reveal that additional disciplinary action was ever
taken against Morrison. Rather, on April 5, 1976, Morrison
was transferred to the shaker conveyor line where he is now
free to work on castings other than tractor weights.
Respondent's attempt at solving the problems of Morrison
and the tractor weights by transferring Morrison to the
shaker conveyor line reflects a genuine desire to reach an
equitable solution to which neither Morrison nor General
Counsel apparently objects.
Conclusion
General Counsel contends that Morrison was discrimi-
nated against in the manner fully discussed above because
his father was steward and because he won an arbitration
award, reinstatement, and backpay. But Morrison testified
that Fowler was harassing him long before he knew that
Pittman, the steward, was his father. Additionally the
record reveals no animosity on the part of Fowler or any
other member of management toward Pittman himself, so
it is difficult to grasp General Counsel's theory that
Respondent should discriminate against Morrison because
Pittman is his father, yet show absolutely no animosity
i1 According to the testimony of Nevers Pittman, Fowler, on February
23 told Pittman, "You are all going to get into trouble filing these chicken
shit grievances." This testimony was offered by Pittman following examina-
tion by General Counsel concerning the filing of a grievance the previous
November. The statement was not placed in any context whereby the
subject matter would normally have been discussed. No grievance, as far as
the record shows, had been filed since January. about a month before, and
no foundation laid for why Fowler, might, suddenly, out of the blue, make
such a threat. If Fowler did, in fact, make such a statement on February 23,
he must have been referring, not to a grievance but to the charge in the
instant case, which was filed on February 19 and served on Respondent,
February 23. the date of the alleged threat. This threat is not, however,
alleged in the complaint and occurred, as did the filing of the charge.
subsequent to the alleged discriminatory assignments.
379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward Pittman himself. Finally, the record reveals a
positive attempt on the part of Fowler to enlist Pittman in
an attempt to rehabiliate Morrison, action certainly at odds
with General Counsel's theory concerning animosity based
on the father-son relationship. For these reasons I reject
General Counsel's contention that Respondent discrimi-
nated against Morrison because of his relationship to
Pittman.
General Counsel's contention that Respondent discrimi-
nated against Morrison since August 19, 1975, by discrimi-
natorily assigning him onerous jobs in disproportionate
numbers and suspended him on November 18, 1975,
because he won the arbitration award is likewise rejected
since as noted above, Morrison was not, in fact, assigned
onerous tasks in a disproportionate number until late
January and February 1976, 5 months after his reinstate-
ment. If, as General Counsel contends, Respondent held
Morrison's victory in arbitration against him, the animosity
reflected by the assignment of the onerous jobs would have
become evident immediately upon reinstatement or shortly
thereafter. I find that the suspension of November 18 was a
legitimate disciplinary action taken against Morrison
16 Testimony of employee witnesses indicate that Fowler favored those
employees who produced and manifested ill feelings toward those who did
not.
1" 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,
because of his record of consistently low production and
that the heavy and disproportionate assignment of tractor
weights in late January and February had nothing to do
with the arbitration hearing but was the result of Morri-
son's substandard working habits, his consistent and
persistent failure to meet production standards and the
personal animosity between Fowler and Morrison engen-
dered as a result thereof.' 6 Similarly, I find that other
incidents of harassment of Morrison by Fowler were the
result of this same personal feeling of animosity, a type of
work related animosity which Fowler not infrequently
manifested against other employees.
In my opinion General Counsel has failed to show by
evidence, fact, or inference any causal connection between
the assignment of onerous tasks to and disciplining of
Morrison on the one hand and his union and/or protected
activity on the other. Accordingly, I shall recommend that
the charge in the instant case be dismissed because I
cannot find by a preponderance of the evidence that the
allegations contained in the complaint are supported. I so
recommend.17
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.
380