General Electric Co.

National Labor Relations Board - Board Decisions

Oct 13, 1965

155 N.L.R.B. 208 (N.L.R.B. 1965)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find and conclude that when Foreman Sleigh asked Hester if he thought he
could trim butts satisfactorily , this was a good-faith exploration into the possibilities
of finding another place to use Hester, and that Hester closed such possibilities with
his negative reaction.
While Hester had worked a long time at the scalding tank , he had been off of that
job for a considerable time and it was adequately filled by another employee whose
capacity insofar as the evidence shows could have been limited or especially suited
to that task . The coincidence of Hester 's transfer on the day following his appear-
ance at the Board hearing loses significance in the light of the fact that the employee
Nix's accident required an immediate transfer of someone into the job. I credit the
testimony that Hester's past experience made him a likely substitute.
I find and conclude that Hester 's performance at various jobs to which he had been
assigned ranged between unsatisfactory and mediocre and that Respondent was not
required to make one or more transfers of other employees suitably assigned in order
to find a place for an employee of Hester 's qualifications.
It is concluded that the General Counsel's burden of proving a case by a prepon-
derance ,of the evidence , fails as to motivation . The union animus of the earlier cases
cannot be made an essential factor of an unfair labor practice in this case ; and such
circumstantial evidence as there is bearing on motivation , does not overcome the
positive , credited testimony of the Respondent 's three witnesses.
The unhappy history of labor disputes in Respondent ' s Clarksville plant has
undoubtedly given some of its management people much practice in the art of testi-
fying persuasively . But in this history of cases their testimony has been found credi-
ble in some instances . To illustrate , in the case at 143 NLRB 494, the witnesses
Barnes and Sleigh testified . Neither Trial Examiner Sidney S. Asher , nor the Board,
discredited their testimony in any substantial part. In this case they , and the witness
Sugg as well , testified forthrightly , and related plausible, highly believable stories.
It is unfortunate that all the energies expended by all the parties in this litigation
and the numerous previous cases have not been directed into more productive chan-
nels. As was said by a former distinguished Trial Examiner and member of the
Board, Stephen S. Bean, in a style typically his and in language unanimously affirmed
by the Board: "The way to industrial peace and prosperity is not found paved with
litigious stumbling blocks on suspicion of malign intent whenever an already chastened
employer, once called to account for having slipped over the metes and bounds of
fair practice , thereafter exercises his legitimate managerial prerogatives." Becker-
Durham, Inc., 132 NLRB 1131, 1136.
A recent court decision , N.L.R.B . v. Park Edge Sheridan Meats, Inc., 341 F. 2d
725 (C.A. 2), has language virtually echoing the language quoted above from Becker-
Durham. Park Edge dealt with a situation somewhat different than the instant case,
but also similar in some respects . It involved a Board decision with a dissent of
decided discernment , and the interesting , incisive initial decision of Charles W.
Whittemore. The court said that the Respondent there "ought not be viewed as
having such a propensity for sin that every episode is given the worst interpretation,
or be condemned by indiscriminate repetition of the phrase that its conduct "must
be assessed against the background of its earlier unfair labor practices ......
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
General Electric Company and International Brotherhood of
Electrical Workers, Local 1198 , AFL-CIO. Case No. 9-CFl-
3029. October 13. 1965
DECISION AND ORDER
On March 10, 1965, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that Respondent had
not engaged in unfair labor practices as alleged in the complaint, and
155 NLRB No. 24.
GENERAL ELECTRIC COMPANY 209
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter. the
Charging Party filed exceptions to the Decision and a supporting brief,
and the Respondent filed an answering brief and a brief m support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recoin-
mendations of the Trial Examiner.2
[The Board adopted the Recommended Order of the Trial Examiner
dismissing the complaint.]
I The Charging Party's request for oral argument is denied because in our opinion the
record, exceptions, and briets adequately set forth the issues and positions of the parties
2 Member Brown especially notes the applicability of article XIV of the Union's contract
with Respondent to Bolton's conduct vis-a-vis Smith, which contractual provision was
expressly relied upon by Respondent in its discharge notice to Bolton
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed June 19, 1964, General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 9, issued a complaint on Septem-
ber 18, 1964, alleging that Respondent ( herein sometimes called the Company) vio-
lated Section 8(a)(1) and (3) of the Act by discharging employee Kenneth Bolton,
and refusing to reinstate him because of his sympathy for and activities on behalf of
the Charging Party. Respondent denied the commission of the alleged unfair labor
practices.
Pursuant to notice, a hearing was held before Trial Examiner Samuel M. Singer
in Cincinnati, Ohio, on November 12 to 16 and November 23 to 24, 1964 The
parties were represented by counsel and were afforded full opportunity to be heard,
to examine and cross-examine witneses, and to introduce relevant evidence. Briefs
were received from all parties.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent, a New York corporation, with manufacturing plants and offices
throughout the United States, is engaged in the manufacture of electrical equipment,
including electrical distribution assemblies, at its plant in Blue Ash, Ohio, the only
plant here involved. During the past 12 months, a representative period, Respondent
sold and shipped in interstate commerce products, valued in excess of $50,000 from
its Blue Ash plant directly to points outside Ohio. I find that at all times material
herein Respondent has been and is engaged in commerce within the meaning of the
Act.
The Charging Party, International Brotherhood of Electrical Workers, Local 1198,
AFL-CIO, is a labor organization within the meaning of the Act.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. Introduction; the issue
The issue litigated in this proceeding was whether Respondent unlawfully dis-
charged Kenneth Bolton , the Union's president, on May 22, 1964 , because he engaged
in protected union or concerted activities in connection with the implementation of
Respondent's new wage incentive plan in its spot welding department . Respondent
denies that Bolton was unlawfully discharged , contending that Bolton was terminated
subsequent to the implementation of the plan in that department because (1) he
encouraged other employees to slow down in production , and (2 ) he personally
slowed down in his work . As to ( 1), Respondent relies on general encouragement
it claims he gave two coworkers on the night shift (Allen and Peace ) to slow down
in production and on three incidents , each with separate employees (Van Auken,
Bacon , and Smith ) in which it claims he gave such encouragement . Since Respond-
ent admitted at the hearing that but for the Smith incident , the last one preceding
Bolton 's discharge , Bolton would still be in its employ , I do not find it necessary to
describe the other incidents in the detail I might otherwise have done.
B. Background; "implementation" of the new Norwood wage plan
Respondent's plant at Blue Ash, relocated from Norwood, Ohio, in June 1961,
manufactures electrical distribution equipment primarily for commercial and indus-
trial buildings. Its production employees, approximately 380 to 390 in number, are
represented by the Union with which Respondent has had contractual relations for
at least 10 years. Until the events here involved, relationships between the parties
were amicable. The plant was struck for the first time in May 1964, following the
discharge of Bolton.
After extensive negotiations in 1960 , the parties agreed to replace the existing
Grade Wage Payment Plan (G-plan) for compensating operators with the new
Norwood Wage Payment Plan (Norwood plan). Broadly stated, the G-plan had
been a pure piecework system under which an operator's earnings depended upon
the number of pieces produced. The Norwood plan is a more involved incentive
system , based upon time and motion computations . Basic compensation under this
plan is computed upon the number of pieces an employee is expected to produce in
an hour (called 100 percent standard), with a reward of incentive pay for pieces
produced in excess of standard. By agreement between the parties, an employee
first coming under the Norwood plan is paid his average rate earned under the G-plan
during the first 2 weeks after introduction (implementation) of the Norwood plan
in the employee's unit or department. If he fails to "qualify" the third, fourth, and
fifth weeks, his earnings are reduced by specified factors.' An employee who main-
tains an efficiency of 100 percent for 2 consecutive weeks, qualifies automatically,
provided he has "sufficient product mix" (i.e., experience in varied operations). He
may agree, however, to qualify (and thus compute his earnings under the new plan),
without meeting 100 percent efficiency for 2 weeks. There is no contractual require-
ment of qualification within any specified period, but the contract provides that an
employee failing to attain 100 percent efficiency "within a reasonable time" may be
transferred "to more suitable work." While 100 percent is "standard" performance
under the Norwood plan, an operator must produce at an efficiency of approximately
117 percent in order to attain his earnings under the G-plan. The 117 percent figure
was the anticipated average performance of the average employee upon completing
his learning period (the initial 2 weeks) under the incentive Norwood plan.
The Norwood plan was modified ( after negotiations ) at least three times since
1960. Employees have from time to time requested review of company-established
rates (as permitted by the contract), and have otherwise protested aspects of imple-
mentation through contract-established grievance procedures. A rate may be "tight"
if insufficient time is allowed for an operation, or "loose" if so much time is allowed
that he can readily produce more per hour. To date, the Norwood plan has been
implemented in 14 of Respondent's units or operations-the first (wrapping), in
November 1962 In March 1963 Respondent implemented the plan in its motor
control unit. Union President Bolton (the dischargee here involved), had objected
to the timing of the implementation on the stated reason that the Company had not
completed certain necessary studies and changes. Soon after implementation of the
'The average earned rate is then divided by factors 105, 110, and 117 respectively,
reducing income from about 5 percent the first week to 17 percent in the fifth and
subsequent weeks
GENERAL ELECTRIC COMPANY 211
plan in motor control, several employees filed grievances which Bolton processed for
them as union president. Since the motor control employees consistently continued
to produce at less than "100 percent," the Company took the position that they
were engaged in a "slowdown ." After extensive negotiations on June 11, 1963, the
Company agreed to modify the plan , "easing," as Bolton testified , "the tension in
motor control." 2
On Friday, February 28, 1964,3 Respondent informed its employees in spot weld-
ing (which is part of the fab-1 unit) that the Norwood plan would be introduced
(implemented) there on Monday, March 2.4 Company officials explained to the
men the operation of the plan, including methods of calculating pay and protesting
or reviewing prescribed rates. Opposing implementation of the plan at that time,
Bolton, who worked in spot welding, told the Company that it had not studied
enough jobs in the unit and that he anticipated difficulties such as those previously
experienced in motor control, remarking that motor control would look like a "pic-
nic" compared to what they would have in fab-i (spot welding) unless the rates
were properly established. Nevertheless, the Company implemented the plan in
spot welding on March 2.
C. Bolton's work and union activities
Bolton, 32 years of age, worked for the Company for 13 years prior to his discharge
on May 22. He had been a spot welder in the fab-1 unit (formerly the IB depart-
ment) since 1954 or 1955. Prior to implementation of the Norwood plan on March 2,
the Company had regarded him as its best welder, his average efficiency rating having
been the highest of the spot welders. He had trained other spot welders in the unit.
The Company had arranged courses for him on the subject of time studies which he
completed in December 1960.
As already noted, Bolton was the union president during the period here involved.
He had occupied that office for 6 years and was also its acting business manager and
chief steward. As noted, Bolton processed grievances for employees in motor con-
trol after implementation of the Norwood plan there in 1963. He also filed or
processed other types of employee grievances during his tenure as president .5 Bolton
was permitted to "clock out" and was paid the day rate while on union business. This
had no effect on his efficiency rating either under the old G-plan or new Norwood
plan.
In March, shortly after implementation of the Norwood plan in spot welding,
Bolton orally protested several rates as "tight"; the protests never reached the third
grievance step of reduction to writing. On March 30, Bolton transferred to the night
shift, where he and two other employees orally protested additional rates.
Bolton's production admittedly declined drastically after implementation. Statisti-
cal data submitted by Respondent demonstrate that while his average efficiency had
been 120.5 percent 6 for 57 weeks before implementation (the highest for all
welders), his average was only 85.1 for the 12-week period after implementation (the
lowest among the nine spot welders). In addition, all welders had qualified and
2 The Company made two major concessions: (a) by agreeing to what amounted to a
more liberal base period for calculating preferential rates in computing earnings (the
13-week period before the date of implementation-when employees' earnings were gen-
erally higher-was substituted for an earlier 6-month period in 1959-60) ; and (b) by
increasing the ceiling pay for piecework operators from 150 percent to 175 percent of
the timing rate for the job prior to coming under the plan.
Unless otherwise stated, all date references are to 1964.
* Preliminary studies on implementing the plan there apparently began as far back as
June 1963 ; time studies of the jobs began in October 1963. According to Respondent's
Exhibit No. 12-A, six spot welders worked in the fah-1 unit in the beginning of March,
eight by the week ending March 22, and nine by the week ending March 29
5 The collective agreement establishes a five-step grievance procedure . The first two
steps call for discussions among the aggrieved employee , a supervisor , and union steward.
At the third step, the grievance is reduced to writing with the union president and higher
managerial officials entering the negotiations , and continuing them through the fourth
and fifth steps . No arbitration of unresolved differences is provided for, so that the
Union's only recourse after the fifth step is to strike . James Diamantopulos , Respond-
ent's employee relations specialist , testified that the grievance procedure may be invoked
to protest company-established rates under the Norwood plan. Bolton testified that
although he formally stepped in only at the third step of the grievance , he was usually
consulted at earlier stages.
e Converted to reflect Norwood level efficiencies.
212-809-66-vol. 155-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally performed at or above 100 percent efficiency by the week ending April 19,
except Bolton and the two welders working with him on the night shift (Allen and
Peace). Bolton and his two coworkers failed to qualify during the period here
involved (i.e., before the date of Bolton's discharge on May 22).
Bolton sought to justify his relatively low production and efficiency (and to some
extent that of his two coworkers on the night shift) on a number of grounds. These
included frequent interruptions to answer employees' questions concerning rate cal-
culations 7 and to permit time-study technicians to test operations on his machine;
assignment of "crappy" and difficult jobs on the night shift, such as special copper wire
jobs, short length piece items, and new products ; working from "hot lists"; i.e., on
urgent jobs requiring immediate attention; and frequent shifts from machine to
machine, with some of which he was not too familiar. Respondent, in turn, sought
to rebut Bolton's contentions by numerous charts and data, as well as testimony, pur-
porting to show substantial similarity between Bolton 's assignments , operations, and
working conditions and those of the other welders on the day shift who produced at
or above 100 percent. Respondent also adduced evidence that under company pro-
cedure Bolton was required to clock out and go on daywork, in which case his effi-
ciency rating was unaffected, while a job was time studied or while on union business;
that he had been specifically instructed to refrain from answering employee questions
and warned that disciplinary action would be taken against him if he continued talking
to employees and failing to improve his production; that he had been repeatedly
questioned about his failure to increase efficiency and to qualify; that he had been
informed of the Company's view that he was "slowing down" in his work; and, finally,
that it had been necessary for the Company to assign a foreman to the night shift on
May 11 to ascertain, among other things, why Bolton and the other two welders on
that shift (Allen and Peace) had not qualified.
In view of the considerations already adverted to in the introduction and to be
stated more fully hereafter, the fact that Respondent, according to its own admission,
would have retained Bolton except for the Smith incident which preceded his dis-
charge, I do not deem it essential to resolve the evidentiary conflict respecting the
nature of Bolton's performance and, more specifically, whether Bolton, as Respondent
contends , engaged in a "personal slowdown" and sought to slow down his two
coworkers on the night shift.8
On May 6, Bolton filed a written application to transfer out of spot welding to a
day job in another unit (fab-2). Bolton testified that the wage rate for the job in
question was determined on straight time, unlike incentive basis in spot welding.
Admittedly, no vacancy existed at the time in the fab-2 unit.
During the week of May 18 Bolton requested a transfer from night to day shift.
Foreman Hesidence testified that Bolton offered to qualify on the day shift if the
transfer were made, but his request was denied because there was no opening.
The record shows that Bolton had an average efficiency rating of 94 percent for
the last week of his employment-the week ending May 24. His daily efficiencies
for the first 3 days of that week exceeded 100 (i.e., 101.2, 102.8, 101.7), while his
efficiency for the fourth day was only 66.5. Bolton's discharge at the beginning of
the fifth day (Friday, May 22, the last workday of the week) did not affect his
weekly average.
On May 24 the Union struck the plant, initially at least in protest over Bolton's
discharge. The strike ended on July 30. Respondent adduced evidence showing
significant increases in production and efficiency of the returned spot welders after the
7 As earlier noted, Bolton completed courses, given by the Company , on the operation
of the Norwood plan. Bolton claimed that Company Supervisor Reichard specifically
told him to answer the men's questions.
e In addition to urging credibility resolution in favor of Bolton , counsel for the Union
urges that a finding that Bolton did not slow down in his work is further supported by
certain undisputed evidence . Thus, it is clear that Bolton had a strong incentive to
qualify since he had suffered severe monetary penalties for failing to do so each week
after the first 2-week learning period . ( Bolton testified , without contradiction , that he
received only $2.85 an hour as compared to the $3.34 an hour he would have received
had he operated at 100 percent, or $3.90 an hour if he had operated at 117 percent).
Moreover , it appears that the choice as to whether and when to qualify was one for the
employee , the Company having the option only to transfer the nonqualifying employee
to "more suitable work" after a "reasonable" period , a step Respondent never took with
Bolton . Furthermore, the record shows that in response to Foreman Hesidence's request,
Bolton voluntarily offered and did use his "influence" to persuade his two coworkers on
the night shift to qualify within the last few days of his employment , action hardly con-
sistent with a design to slow down production of his coworkers , at least during the
crucial period before his discharge.
GENERAL ELECTRIC COMPANY 213
strike. Peace and Allen (the two night-shift welders who had worked with Bolton)
qualified the first week after the strike (the week ending August 9), demonstrating
120.5 percent and 118.6 percent efficiencies, respectively. They maintained this level
of efficiency thereafter-averaging 120.2 and 120.0 for the 13-week poststrike period,
compared to 91.2 and 93.3 for the 12-week prestrike period. The average efficiency
level for all welders in the group was 124.7 for the 13-week poststrike period, com-
pared to 102.3 for the prestrike period.
D. The Van Auken and Bacon incidents
On March 5-3 days after implementation of the Norwood plan in spot welding-
the Company received a report that Bolton had warned welder Van Auken during
an argument that "he had better slow his welder down" and had threatened to beat
him up. On March 9 the Company took a statement from Van Auken describing
this incident. On the same day the Company took a statement from another
employee, Lindon Bacon, who worked in the plug department, to the effect that
Bolton had, a month earlier (February 4), threatened to bring charges against him
under the Union's constitution, if Bacon reported "loose" rates to the Company. At
the hearing, Bacon and Van Auken testified to this effect, with additional details.
Denying that he ever threatened Van Auken, Bolton testified that he struck up a
casual conversation with him, remarking that Van Auken was "doing pretty good"
on the job, but that Van Auken took his remarks in the wrong spirit and became
belligerent, and that there was no threat of any kind. Bolton conceded that he spoke
to Bacon about his intention to report "loose" rates, but asserted, as Bacon admitted,
that the conversation was preceded by heated argument between Bacon and two other
employees (Meece and Brockman) concerning the latter's intention to report "tight"
rates. It is clear, and I so find, that Bacon in effect told the two that if they reported
the "tight" rates, he would report "loose" rates; that Bolton then told Bacon that
notifying the Company of "loose" rates would be contrary to the interest of the Union
and the employees; and that Bolton further told Bacon that his remarks incited
dissension and he could face charges under the union constitution for both reasons .9
After receiving Van Auken's and Bacon's reports, Bolton was informed by the
Company that " we had received reports from employees that he had been trying to
get them to slow down in their job," that "he had threatened physical harm to one of
them," that the charges were serious and in violation of the contract, and that the
Company would not tolerate such conduct. Bolton was also reminded of his state-
ment at the "implementation meeting held on February 28 [when] he said that [the]
motor control situation would look like a kindergarden [sic] picnic compared to the
problems we would encounter" in spot welding. Bolton denied the threats and con-
duct attributed to him, but admitted asking Van Auken "how he was doing on the
job," insisting, however, that he did not pursue the matter further because he "didn't
want to argue with him." Deciding not to take action against Bolton, the Company
warned him it "would take certain action should it continue."
On March 9 the Company met with the spot welders, including Bolton, and told
them that it had come to its attention that some employees "had been threatening"
others "to slow down in their work," and that the Company would not tolerate these
matters and would take disciplinary action against violators. On the same day Bolton
requested the Company to identify its informers and sought vindication of the accusa-
tions against him. Upon the Company's refusal to comply, Bolton processed a griev-
ance, in the course of which the Company ultimately revealed the names. Bolton
then filed charges against the informers-Van Auken and Bacon-under the Union's
constitution.10 On May 31 the union trial board found the two men guilty on several
counts, including the charge of creating dissension among members (for which the
two employees were given a 3-month suspension from membership) and the charge
of misrepresenting their president in statements to the Company (for which a $25 fine
was imposed but suspended). Reichard, the fab-1 unit supervisor, admitted at the
hearing that Van Auken had informed him of Bolton's charges against him and that
he relayed the information on to management.
For reasons already stated in connection with Respondent's contention that Bolton
personally slowed down in his work and encouraged the two night-shift welders to
9 Bacon's and Bolton's ( also other General Counsel witnesses ') versions of the incident
are inconsistent in only one major respect : Bacon quoted Bolton as telling him in course
of the conversation , "You have got to fight fire with fire. These people [ Respondent]
fix prices , they are crooks , and we have to fight them . . . ."
10 Bacon and Van Auken were union members. The collective agreement contained a
union-shop clause requiring membership in the Union after 45 days of employment.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
slow down in theirs, it is unnecessary to resolve the conflicting testimony on the Bacon
and Van Auken incidents. I now turn to the crucial May 21 Smith incident which
admittedly led to Bolton's discharge on May 22.
E. The Smith incident
1. The testimony
The testimony on this incident is in sharp conflict in material respects. As to the
following, however, there is no substantial dispute.
Vernon Smith, Bolton's cousin by marriage, obtained his job with the Company
21h years ago through Bolton's assistance. On May 11 (11 days before Bolton's
discharge) Smith was assigned to the fab-1 (Bolton's) unit to do spot welding.
Without prior welding experience, Smith immediately became a phenomenal pro-
ducer, easily outdistancing all nine welders in the unit from the very beginning. He
averaged 126.4 percent efficiency in his first week, ending May 17, and 167.4 percent
in his second week, ending May 24, against 111.8 and 115.6, respectively for his group
as a whole (including himself). Employee Sorrell had the next highest efficiency
(121.8) the week ending May 17, and Naylor the following week (119.8). The
night-shift welders' efficiencies for those 2 weeks were: Bolton-101.1 and 94.0;
Peace-98.3 and 100.4; and Allen-99.6 and 102.1.11
Bolton and his two coworkers on the night shift discussed Smith's performance
among themselves.12 On the evening of May 20, Allen and Peace called Bolton's
attention to a job attributed to Smith which they regarded as defective.13 Around
3:15 the next afternoon, May 21 (just before Smith's quitting time and Bolton's
starting time), Bolton secured permission from Reichard (the fab-1 unit supervisor)
to see Smith, ostensibly to help fix Smith's machine. Bolton went over to Smith's
machine and, after exchanging remarks about alleged tampering with the machine,
the discussion turned to Smith's production. Bolton asked Smith what "efficiency"
he was making. When Smith answered that he was running between 140 and 160
percent of standard, Bolton advised him to make sure he produced good quality
because if he did not, he would be subject to warning notices and possible discharge.
There is serious question whether Bolton, in his conversation with Smith on May 21
or at any other times, told Smith to cut down on his high production. Reichard
testified that on the morning of May 21, Smith came to his office and told him he
"would like to get removed from the machine" because "he was being pressured" by
Bolton "to hold his production to a certain given percentage." According to Reichard,
Smith insisted that he had to make a higher percentage in order to maintain his
standard of living. Reichard further testified that a short time later, he saw Bolton
and Smith in "a heated argument"; that after requesting Bolton to leave, he asked
Smith to state what was going on; and that Smith thereupon said: "He's telling me
what I got to produce, 117 percent, and I just can't stand it ... I have got to produce
more than that or I can't have my standard of living ...." According to Reichard, he
observed Bolton and two other employees (Bray and Mosbacker) conversing with
Smith a few minutes later, and he then called his superior, Tallman, and asked for an
appointment the next morning. Reichard further testified that the next morning-
before the meeting-Smith repeated in his office the conversation he had with Bolton
the night before. Smith also reported incidents of sabotage or tampering with his
machine which Sorrell, who helped Smith set up the machine, confirmed.14 Reichard
then asked Sorrell to sit in on the interview "and had Mr. Smith relate the story in
front of Mr. Sorrell." According to Reichard, Smith again reported that Bolton told
him "to hold his production down to 117 percent." Reichard reported his interview
to Diamantopulos, the Company's employee relations specialist.
11 Smith's productive capacity after the events here involved is even more impressive.
The company records show that in the 12-week poststrike period (August 9 to Novem-
ber 1, following the plant shutdown from May 24 to July 30), he averaged 154.6. In that
period Smith's efficiency exceeded 130 percent each week and reached as high as 178 6.
The average efficiency of all welders for the same 12 weeks was 124.7.
12 Smith's daily efficiency reports, turned in to the day-shift dispatcher, were accessible
to night-shift employees.
"There is no credible evidence that the Company ever complained about the quality
of this or any other welding by Smith. Supervisor Reichard testified that Smith pro-
duced work of satisfactory quality.
11 Sorrell, a senior welder, trained Smith at that time and helped Smith ready his
machine for operation.
GENERAL ELECTRIC COMPANY 215
About 9:30 a.m., management representatives (Diamantopulos, Hillman, Reichard,
and Tallman) met with Smith and Sorrell. Reichard testified that Smith "repeated
the same story" with "some additions," that Smith said "he was being pressured,"
pointing out that his wife was related to Bolton and "is telling me that I had better
listen to Mr. Bolton"; that he quoted Bolton as saying that he got him the job and
can see that he loses it; and that Smith remarked that he did not know what to do
and wanted another job, stating, "I just got to get out of here, I can't take the
pressure," and "he kept repeating the same thing over and over." In addition to the
Bolton matter there was a discussion about the alleged sabotage to Smith's machine.
Diamantopulos and Tallman corroborated testimony given by Reichard. Diaman-
topulos confirmed Reichard's statement that Reichard reported to him about the
"heated discussion" he observed between Smith and Bolton's group in later afternoon
on May 21, and that Smith later spoke to him about Bolton's attempt "to get him to
slow down on his job." Diamantopulos quoted Smith as saying at the management
meeting the next morning that Bolton told him "he was running his machine too fast
and that he ought to slow down his pace;" that "there had been notes left on his
machine ... to indicate ... how many pieces to run to maintain a certain efficiency,
117 percent efficiency"; that "this thing had been a constant concern to him because
his relatives were also pressuring him"; and that Bolton told him "that the Company
would cut prices [i.e., standard job rates] if his efficiencies were too high" and that
"his high efficiency was having a bad effect on the other employees."
Tallman, like Diamantopulos, confirmed Reichard's testimony concerning Smith's
complaints about the pressures utilized by Bolton and his relatives (including his
wife) to "slow down" in his job and also Smith's and Sorrell's reports of tampering
with his machine. He quoted Smith as saying that the men on the second shift "were
calculating his efficiencies" from Smith's production reports and Bolton "was using
this information to badger him into producing" fewer pieces. Tallman further testified
that Smith said "Bolton had told him that he was making an ass out of other employees
as a result of his high efficiencies."
Smith admitted that Bolton had talked to him "once or twice" about production,
stating that Bolton had mentioned that there had been complaints about his "high
production,"-"the night shift men ... complaining that I was turning in pretty heavy
in a sense and they thought I was cheating . jumping the gun to make more
percentage," and wanted him (Bolton) to talk to him about it. Smith further testified
that he talked to Reichard about production on the afternoon of May 21, and men-
tioned to him that a slip was left on his machine the night before showing him "how
to figure time" and the number of pieces to produce. According to Smith, Reichard
then asked if Bolton was "trying some way to slow me down," but he (Smith)
answered that Bolton, "was helping me fix the pin on the welder " Smith testified,
"I don't think Mr. Bolton was trying to get me to slow down," explaining that Bolton
had told him, "I was turning in pretty high percentage, to make sure I was putting
out ... quantity plus quality or it wouldn't stand up for the Company ...." He also
stated "I don't believe Mr. Bolton ever said anything about 117 percent to me." As
to his meeting with Reichard, the morning after his conversation with Bolton, Smith
testified that the topic they discussed was his problem in setting up his machine. He
admitted that he might have asked Reichard that morning if he could be transferred
from the Blue Ash to another (Evendale) plant. He explained, however, that he had
"quite often" talked to Reichard about a transfer since passing various tests for other
jobs (in August 1963) and, indeed, had spoken to the Evendale personnel manager
about a job there because he "wanted to get ahead" and "didn't want to be a punch
press operator the rest of my life," Smith also admitted that since he had been turning
out more production than the other men from the very beginning on the welder, he
"could tell the way a lot of them talked to me ... that was awfully high for a young
man right off the street" and, hence, he "just wanted to get out of there."
As to the May 22 morning meeting with management, Smith testified that, in addi-
tion to discussing the alleged sabotage of his machine, there was a discussion of
Bolton's alleged attempts to hold down his production. Smith stated that Reichard
"said something about we know Mr. Bolton is trying to slow you down in produc-
tion." Smith replied, "Well, if you all know what's happening it's your job to elimi-
nate it, not mine . . . . He got my father a job at age 42 years, helped my brother
get a job, myself and my brother-in-law and I cannot say nothing against Mr. Bol-
ton .... If you all feel this way I will pick my paycheck up and leave." Smith went
on to say that in answer to the inquiry put to him (at the May 22 meeting) whether
Bolton had "in any way" threatened him, he told the group, "No, I didn't think
Mr. Bolton would ever threaten me because I thought he knew that we would be
outside the green if he did." Smith admitted that he may have mentioned at this
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting an incident concerning time he recorded on a timecard about which Bolton
and he had a heated argument several days before. Bolton at that time told him, "I
got you a job and I can also get you fired."
Bolton testified that his conversation with Smith on the afternoon of May 21 was
prompted by the fact that his two coworkers on the night shift (Peace and Allen)
showed him defective work done by Smith the day before (May 20). He admitted
that in talking to Smith about the "bad quality work," the word "efficiency " got into
the conversation and that he had asked Smith, "What did you make on those?" When
Smith replied that the "turned in about 140 or 160 percent on them," he told him
that "for his own good ... to make sure he put out good quality work with quantity
because if he didn't he was subject to warning notices." At the hearing Bolton
explained that Hesidence, the night foreman, told him the night before that the parts
were defective and "had to be scrapped" and asked if he knew who had worked on
them on the day shift. Bolton replied that it was Smith because only he operated
that machine on the day shift and said he would talk to him about it. Bolton testified,
"I told him I was going to see Mr. Smith about it, that I felt a personal responsibility
to see that Smith turned out good quality work since I vouched for him to get a job
there." 15 Bolton admitted that in course of the discussion he did get into an
"argument" with Smith but stated that this related not to production or efficiency
but to his announced intention "to try to bump him on the night shift" in order "to
take care of my union business better." According to Bolton, Smith "became quite
riled up about this and he said he didn't see why I wanted to come back on the day
shift since I had only transferred on there March 30." Bolton indicated that he pre-
viously had "a lot of [personal] problems" which required him to be off during the day
but these have now been "corrected," and he now wished to return to day work,
stating that "as far as I was concerned under the terms of the contract I would come
back." 16 Bolton denied that he ever told Smith to hold his production down "to
117 percent or below," or that he requested an employee "to cut back on his produc-
tion." (He also denied tampering or interfering with Smith's machine).
Virgil Mosbacker, a member of the Union's executive board called by General
Counsel, corroborated much of Bolton's testimony. He testified that Bolton asked
him to listen in on his conversation with Smith; that after remarks were exchanged
about tampering with Smith's machine and the efficiency involved in setting it up,
Bolton asked Smith what kind of production he was getting; that when Smith replied
he "was running between 140 and 160 percent of standard on this production" and
that "as a matter of fact ... he thought in about a week or so he would qualify,"
Bolton said that after he qualified he would bump him "onto the night shift." Accord-
ing to Mosbacker, Smith "didn't take this very well" and said he could not under-
stand why he would want to bump him when he just recently transferred to the night
shift himself. Bolton replied that he had personal problems at home-taking his wife
to the doctor during the day-and he felt that as union president he should now go
back to the day shift. Smith got "pretty hot" and used a "cuss" word. After the
conversation calmed down and Bolton and Smith returned to Smith's estimate that
he was running 140 to 160 percent of standard, Bolton said, "Well, this is all well and
good, but ... just be sure and run good quality work along with your high production,
because ... if you don't run good quality work you can be subject to a warning notice
on this, and ... if you get a warning notice ... if you get enough of them you can
even be possibly be fired." Smith replied that he was there "to make money."
Earl Sorrell, a company witness, contributed little to the resolution of the question
as to Bolton's statements to Smith regarding production. He corroborated Smith's
undisputed testimony concerning the problem of setting up his machine on the morn-
ing of May 22. He could not remember whether Smith made any remarks at the
management meeting about Bolton "asking him to slow down, to hold his production,"
insisting that he paid no attention to anything other than that which concerned him;
namely, the operation of Smith's machine, for which he had some responsibility.
16 On cross -examination , Bolton indicated that his conversation with Residence came
up when they talked about quality and he told Residence that "here's some work I am
not going to mix my work with." The subject turned to the question of who was
responsible for the work and be then quoted Allen and Peace as stating that it must be
Smith's. Respondent adduced in rebuttal records tending to show that Smith's work on
May 20 (on that day he had run over 1,100 weld nuts) was not scrapped.
18Article 12, section 7, of the collective agreement provides that: "An employee may
not exercise his seniority to displace another employee until, or unless he, himself, is
affected by a change of status." However, it also provides: "A transfer between shifts
on the same job title will not be construed to mean a change of status . .. ."
GENERAL ELECTRIC COMPANY 217
When pressed further on the matter , he recalled "a few statements in there about
Smith being ordered to make percentage on his job and . . . Tallman saying that he
could make all the percentage up to 170 percent ...."
2. Credibility resolutions
In my view , the key to the resolution of the important credibility issue here is to be
found in the testimony of Smith and the demeanor he displayed on the witness stand.
Smith impressed me as a reluctant witness, impaled on the horns of a dilemma. On
the one hand , he seemed anxious to avoid jeopardizing the job of Bolton-his cousin
and benefactor who had helped obtain his job as well as others for the family. On
the other hand, he was faced with the necessity of not repudiating a position he had
firmly and repeatedly taken in the presence of managerial officials, upon whom he (an
ambitious young man ) continues to be dependent for advancement and, indeed,
employment itself. This reluctance manifested itself in an apparent holding back of
facts within his possession . While obviously voluble on other subjects , he seemed
skittish on the subject of Bolton . Nevertheless , Smith's account of his conversations
with Bolton- at times punctuated with reluctant admissions-afforded me sufficient
insight into the situation to enable me to deduce that Bolton had in fact told Smith
to cut down on his high production.
Thus, Smith admitted that Bolton had talked to him about production and about
the complaints of the welders on the night shift that he (Smith ) "was turning in
pretty heavy." He admitted that Bolton then told him he "was doing a pretty high
percentage ," He acknowledged that he had informed Reichard on the afternoon of
May 21 that a slip had been placed on his machine showing him "how to figure
time" and the number of pieces to produce . He testified that he had at one time told
Reichard , "I couldn't live on around 115 or 17 or 20 percent , that I had to make
higher than that or I would look for a better job ." 17 He conceded that he might
have asked Reichard to be transferred out of the plant to Evendale and that this
request could have been made on May 22. Furthermore , Smith demonstrated hesi-
tancy and equivocation in that part of his testimony which dealt with the major
issue as it touched Bolton . At one point , Smith was asked if, in an interview held
shortly before this hearing (November 10), he had told management and counsel
for Respondent that he "would like to tell the whole truth about this thing and get
it off my chest ," that "all the guys in the shop are mad at me," that "you know the
position I am in ," and that the men "hold me responsible for everything that's hap-
pened ." Smith first denied making the statements but then added , "No, sir, not in
them words ." When further asked what words he used, Smith said , "I don't
remember." 18
Based on all of the foregoing , I find that Bolton in his conversations with Smith
(including May 21 ) sought to prevail upon Smith to cut down on his high produc-
tion and that Smith thereafter reported these conversations to management on
May 21 and 22.
F. The discharge of Bolton
Upon conclusion of management's meeting on May 22, discussed above, Super-
visor Reichard recommended to his superiors that Bolton be discharged-a recom-
mendation the Company approved.
When Bolton arrived at the plant around 3:30 p .m. that day ( May 22 ), Diaman-
topulos asked him to report to the office with a union representative. Bolton went
with Virgil Mosbacker , a member of the Union 's executive board , and met with
Diamantopulos , Reichard , and Residence . Diamantopulos told Bolton that "there
had been some further instances related to us which he had been involved in again
threatening , coercing , intimidating employees to slow down their work and he wanted
17 Smith denied that this conversation took place on May 22 but then admitted that it
occurred at the time Reichard talked with him about Bolton's activity.
"The record further shows that in testimony before the Ohio Bureau of Unemployment
Compensation Smith answered the question whether Bolton had not told him that his
production "shouldn't be as high as it was" as follows: "In a sense he said that and in
another way he said that my production was the highest on paper work and it would
be quantity plus quality or it wouldn 't stand up. I felt it was Bolton 's job to come to me
and talk to me and slow down if all the men on the night shift was basing it on him
because he was president of the Union ." The bureau of unemployment compensation
found that Bolton was discharged for cause and that he was not entitled to compensation
benefits. This determination , although relevant , is, of course , not binding here.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discuss those with him ." Diamantopulos mentioned the Bacon and Van Auken
incidents , stating, "The same incident that happened to Van Auken and Bacon has
occurred again on another employee. We told you both on March 6 if this ever
happened again you would be fired." Diamantopulos did not identify the employee
(Smith ) involved in the new incident , rejecting Bolton's request to name him.19 In
course of the interview Bolton was handed a slip, stating the reason for his discharge:
sanctioning and encouraging a slowdown and interfering with the work of other
employees in violation of Article III and Article XIV of the collective-
bargaining agreement between the Company and Local 1198 I B E.W and
contrary to his obligations as an employee and as president of the Union.20
At the hearing, Diamantopulos testified that the Smith incident "was the straw
that broke the camel's back" and conceded that if that incident "had not happened
Mr. Bolton would still be retained." While testifying at one point that the Company
"was concerned ... only with Bolton's pressuring the employees in a slowdown," he
testified at another point that Bolton's alleged personal slowdown in his work was
also a factor . 21 Plant Manager Brownlee testified that while the decision to dis-
charge "was a culmination . . . of these different instances" involving Bacon, Van
Auken , and Smith , the last one (Smith incident ) "finally brought it to a head."
G. Conclusions
1. The discharge of Bolton because he requested Smith to hold down
his high production
As already noted, Respondent adduced voluminous evidence purporting to show
that Bolton personally "slowed down" in his work and encouraged others (specifi-
cally his two coworkers on the night shift-Allen and Peace) to hold down their
production. The cold statistical data submitted by Respondent do indeed show that
while Bolton's average production or efficiency was 120.5 percent for 57 weeks
before "implementation" of the Norwood (incentive wage) plan in his department-
the highest of all spot welders-his average efficiency decreased to 85.1 percent for
the 12-week period after implementation-the lowest among the nine welders. In
addition , all welders on the day shift had qualified under the new plan and gener-
ally performed at or above 100 percent by the week ending April 19, except Bolton
and the two night shift welders . However, as also noted , Bolton sought to justify
his (and his coworkers') admittedly reduced production on several grounds, including
interruptions , unusually difficult tasks, and "hot list" assignments-contentions dis-
puted by Respondent. Respondent also relied on two incidents-in addition to the
Smith episode-to show that Bolton encouraged "slowdowns." Thus, on February 4,
Bolton threatened to bring charges under the Union's constitution against employee
Bacon because Bacon had told two other employees that he would report "loose"
rates to the Company if they reported "tight" rates . Further, according to Respond-
ent, on March 4 Bolton allegedly warned Van Auken that "he had better slow his
welder down," threatening to beat him up. As noted, General Counsel adduced
evidence controverting much of Respondent 's proof. However as already stated, I
found it unnecessary to resolve the conflicting evidence on this point in view of the
admission of Respondent 's management witnesses that Bolton would have been
le Bolton testified that one of the company representatives told him "we will not go
through that. You have . . . give[n] those other men enough trouble" Mosbacker
testified that Diamantopulos told Bolton that "they didn't want to take it before the Trial
Board such as Van Auken and Bacon had been."
m It is unessential to resolve the conflict whether the above wording-appearing on the
back of the discharge notice-was read to Bolton as claimed by Diamantopulos but denied
by Bolton.
Under article III of the contract, the Union agreed that "it will diligently encourage"
employees "to perform loyal and efficient work" and to "cooperate with the management
in advancing the Company's welfare . . . Under article XIV, the Union agreed "that
neither Its officers nor its members . . . will call , sanction , encourage , or participate in
any . . . slowdown . . . or any other type of organized or concerted interference with
work during the term of this Agreement . . . .
2'Bolton denied he was ever told that he was discharged "because of a personal slow-
down," stating that the matter "was not discussed whatsoever" during the discharge
interview. Bolton stressed that "the whole conversation was built around that I was
supposed to have threatened someone else."
GENERAL ELECTRIC COMPANY 219
retained but for the May 21 Smith incident.22 As I see it, the crucial question here
is whether, as General Counsel and the Union contend, Respondent discharged Bol-
ton because he engaged in protected concerted activities (in connection with his
prosecution of complaints and grievances arising out of implementation of the new
Norwood wage plan) or because he induced Smith to curtail his production.
I have already resolved the factual question whether Bolton told Smith to hold
down his production in favor of Respondent and against the Union and General
Counsel. As found, Smith-a new, young welder and cousin of Bolton-was a phe-
nomenal producer, with average efficiencies of 126 4 and 167.4 percent durmg his
first 2 weeks at the welder (May 17-24); this compares with average efficiencies (for
the same weeks) of 111.8 and 115.6 for the welders as a group; and averages for
the night-shift welders of 101.1 and 94 (Bolton), 98.3 and 100.4 (Peace), and 99.6
and 102.1 (Allen).23 The welders apparently discussed the matter among them-
selves, expressing suspicion that Smith was either cheating or producing poor qual-
ity.24 On the evening of May 20, Allen and Peace directed Bolton's attention to a
defective job attributed by them to Smith. Bolton went to see Smith the next after-
noon (May 21). In course of a seemingly heated conversation, Bolton learned that
Smith was producing between 140 and 160 efficiency, told Smith to make sure he
produced quality as well as quantity, and asked Smith to cut down on his produc-
tion. Supervisor Reichard, who saw the "heated argument," then questioned Smith
about it. Smith related to Reichard, and later to other management officials, that
he was under constant pressure from Bolton and members of his family (including
his wife, Bolton's cousin) to hold down production; that Bolton told him his high
efficiency reflected on the other welders and might lead to reduction in job rates;
that Bolton urged him to cut his production to 117 percent; that notes were left on
his machine telling him how many pieces to run to maintain 117 percent efficiency;
and that he wanted to get out of the department because he could not take the pres-
sure. Respondent then called in Bolton. After informing him that it had received
a report that he "again" intimidated "employees to slow down their work," the
Company handed him his discharge slip, stating that he was being released for
"sanctioning and encouraging a slowdown " in violation of the collective-bargaining
agreement.
I conclude that Bolton in his conversations with Smith (including May 21) sought
to prevail upon Smith to hold down his production; that Smith so reported to man-
agement; and that after receiving that report, Respondent discharged Bolton on
May 22. While it may be that Respondent might have overlooked the Smith inci-
dent if it had been merely isolated, the fact that it was not, since this was not the
first "slowdown" report it received about him.25 Moreover, Bolton's production fig-
ures following implementation, as compared to his preimplementation production
(and also compared to the postimplementation production of others) were plainly
before Respondent at all times 26 without a satisfactory explanation from its point of
2 As noted, Diamantopulos (Respondent's employee relations official), testified that
if the Smith Incident Immediately preceding Bolton's discharge "had not happened
Mr. Bolton'would still be retained ." According to Diamantopulos "this Smith incident
was the straw that broke the camel's back." Plant Manager Brownlee testified to the
same effect. Nor does the discharge slip handed Bolton give Bolton's alleged personal
slowdown as a factor In the decision to discharge.
It may be , as Bolton suggested in his testimony , that Smith ' s high efficiency was in
part attributable to the fact that his setup time while in learner's status was computed
on a straight time-basis (so that time consumed in setting up difficult Jobs was not
charged against his efficiency) while that of the other welders was computed under the
incentive plan. Bolton testified, however, that on May 18 the Company agreed to dis-
continue the claimed special treatment. And Smith's efficiency continued to soar after
that time, Including the poststrike period.
u The credible evidence does not support these suspicions.
25These were (a) the Van Auken Incident of March 5, and (b) the one with Bacon.
Whether the Van Auken incident did or did not take place as reported is not truly
germane to the point under consideration since the report was actually received and
given consideration by the Employer as an instance of slowdown ascribed to Bolton.
Bolton's request to Bacon (which he did not dispute) that he refrain from reporting
"loose" rates, while not technically involving a "slowdown," could well have colored
Respondent's viewpoint generally with regard to Bolton's basic loyalty toward it and
have affected Its appraisal of his other conduct here under scrutiny and therefore its
decision to discharge him.
20 Respondent compiled daily efficiency reports for all of Its spot welders.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view. All of the foregoing had formed the basis for several warnings by Respond-
ent to Bolton. Atop all of this ensued the Smith incident, which in itself-even in
the absence of prior adverse history-would have warranted discharge.
I further conclude--despite all of the foregoing considerations-that Bolton's
request to Smith to hold down his tremendously high production was in fact moti-
vated by a desire to still the complaints of other welders (more specifically his
coworkers on the night shift) who either resented being "shown up" by a new and
young welder, or suspected that he was "cheating" and producing poor quality work,
or feared (rightly or wrongly) that Smith's high efficiencies-out of proportion to
their own-might bring about a cut in rates by the Company. Bolton, as their union
president, complied with their request and appealed to Smith to hold his production
to a lower level, resting his appeal on the fact that quality was an important con-
sideration and that failure to produce good quality might jeopardize his job.
2. Bolton's activity was not a protected concerted activity
There still remains the question-posed by counsel for the Union-whether Bol-
ton's attempt to induce Smith to curtail production was a protected concerted activ-
ity. If it was, Respondent's discharge would be a violation of the Act even if in
good faith it believed that Bolton encouraged a "slowdown." See N.L.R.B. v. Burnup
and Sims, Inc., 379 U.S. 21. Counsel argues:
Bolton could not have been encouraging Smith to "slow down" as that term
connotes a partial strike in violation of the contract. The very most of the
Company produced in support of its position is that Smith was told to hold pro-
duction at 117%. Actually, 117% is a very satisfactory rate of production.
100% is standard and 117% brings earnings to those that existed prior to the
implementation of the Plan .... [W]ould it not be a protected activity, where
incentive or piece rates are in effect, for a union to ask an employee, who is
producing far out of line compared to the other employees, to bring production
somewhat more in line with the production of the other employees? ... [T]he
single employee by exerting superhuman effort can "show up" the other employ-
ees and jeopardize their working conditions, even their jobs, and certainly jeop-
ardize their earning capacity through a management reduction of rates since one
employee is earning excessive amount.
Counsel raises an interesting and appealing argument but not one that need be
answered dogmatically. It is conceivable-although the question need not here be
decided-that collective action to set production ceilings could, under certain cir-
cumstances, constitute protected concerted activity. As Trial Examiner A. Norman
Somers vividly pointed out in Local 283, United Automobile, etc., Workers, AFL-
CIO (Wisconsin Motor Corp.), 145 NLRB 1097, pending review sub nom. Scofield
v. N.L.R.B. (C.A. 7) [382 U.S. 205], the history of piecework rate systems demon-
strates that such systems have, since time immemorial, been of grave concern to
employees and unions have imposed self-limiting ceilings in order to spread work
among members, stabilize earnings, discourage speedups, protect jobs of elderly and
physically less capable workers, and avoid demoralizing competition among employ-
ees.27 However, Wisconsin Motor is not dispositive of the issue here, since the
Board there held only that a union did not violate Section 8(b)(1) (A) by fining
members for exceeding a "ceiling " on piecework earnings set by a union rule , because
such action fell within the immunity of the proviso to Section 8 (b) (1) (A) preserv-
ing to a union the "right ... to prescribe its own rules with respect to the acquisition
or retention of membership." The Board expressly refrained from taking a posi-
tion on whether employee adherence to such a rule is protected concerted activity,
pointing out that union conduct immune under the proviso is not necessarily within
the protection of Section 7 (i.e., that it would be an unfair labor practice for an
employer to discipline employees for such activity). 145 NLRB at 1118, 1131-1134.
Counsel for the Union has cited and I know of no case holding that a union rule
limiting piecework earnings, however reasonably grounded, is affirmatively protected
21 Trial Examiner Somers noted that the "authorities on the subject
. . . [extracts from treatises are reproduced in his Appendixes] inform us that the
setting of production limits among pieceworkers is hardly new in our industrial life,
and that it has its roots in experience under piecework and incentive plans giving
rise to apprehensions, reasonably grounded, with which such a practice is designed
to cope." Local 283, supra, 1136, 1138-1140.
GENERAL ELECTRIC COMPANY 221
by Section 7. The most that could be said for Bolton's activity under the Wisconsin
Motor doctrine is that assuming Bolton acted to implement a union rule, the Union
would not be in violation of the Act because of Bolton's overtures to Smith.
In any event, whether a particular activity constitutes a protected concerted activ-
ity cannot be determined by mere abstract characterization. The activity here, even
if concerted, is not on a parity with classically protected activity such as discussions
for better wages. The activity here is one which impinged on the competing right
of an employer to expect his employees to devote their workday to work and to
producing to the best of their abilities, that is to say, not to slow down.28 "This
involves striking the balance between, on the one hand, management's interest in
having pieceworkers produce and earn to the maximum of their capacities, and, on
the other, interest of the group as a whole in determining the point at which those
comprising it can avail themselves of that inducement consistently with preserving
the basic purpose of the allowances themselves." Wisconsin Motor, supra, 1120.
Cf. The Kroger Company, 145 NLRB 235, 237.29
Furthermore, there is no evidence that Bolton's seeking to hold down Smith's
production, even though prompted by desire to qiuet other employees' apprehen-
sions concerning consequences of one employee's inordinately high production, was
pursuant to a preexisting collectively determined rule setting production standards, as
in Wisconsin Motor 30 Furthermore, it appears that Bolton's request to Smith to
cut down production was predicated on a purely personal basis. Bolton testified that
he approached Smith because "I felt a personal responsibility to see that Smith turned
out good quality work since I had vouched for him to get a job there." He told
Smith "for his own good ... to make sure he put out good quality work with quan-
tity because if he didn't he was subject to warning notices." At one point in his
testimony (concerning the Bacon incident), Bolton disclaimed concern about rate
cuts, asserting that existing rates were protected by contract Moreover, contrary
to the Union's contention, Bolton's attempt in effect to hold Smith down to 117
percent of standard cannot be justified on the theory that Respondent was not enti-
tled to expect more than that amount of production under the collective agreement.
It is reasonable to assume that the purpose of an incentive wage system is to induce
maximum production consistent with satisfactory performance. The fact that 117
percent was an anticipated average performance, did not freeze performance of all
employees at or below that figure.31 The very meaning of the word "average"
negates such a contention. Rather, it would seem-particularly in view of the
June 11 supplemental agreement (supra, footnote 2) and the circumstances leading
to this agreement-that if any production ceiling was intended, it was pegged at 175
percent.
Accordingly, I conclude that Bolton's action in seeking to hold down Smith's pro-
duction was not, in the circumstances of this case, a protected concerted activity, and
therefore, that his discharge because of such action did not constitute interference
with, restraint, or coercion in the exercise of a right protected by Section 7 of the Act.
3. The discharge was not motivated by discriminatory reasons
In reaching the conclusion herein that Bolton's discharge was motivated by his
attempt to induce Smith to hold down his production and not by discriminatory rea-
sons, I have not overlooked the countervailing factors stressed by General Counsel
tending to indicate the contrary. Here, as in many discharges for cause, the circum-
21 See Elk Lumber Company, 91 NLRB 333; Calsiornia Cotton Cooperative Association,
Ltd., 110 NLRB 1494, cf. Burns Garage, Inc., 148 NLRB 303.
'3 The fact that the particular activity may have a lesser demonstrable adverse impact
on an employer with an incentive wage system (where wages are based on output) than
on an employer with a straight hourly wage system, is not determinative The measure
of protection accorded to concerted activities does not turn simply on the degree of injury
the employer may suffer. Cf. Republic Aviation Corporation v. N.L.R.B., 324 U S. 793,
798. In any event, an employer's interest in maximum utilization of manpower and plant
facilities, with attendant overhead (including machinery and administration) savings,
are not so insubstantial as to warrant ignoring.
80 In Wisconsin Motor the Union had set, announced, and posted a specific ceiling as a
result of the combined deliberation and a pooling of experiences of the group Not only
did the employees know but the employer, too, knew the prescribed ceiling. Indeed, the
ceiling was a subject of collective bargaining during negotiation renewals and reopenings.
sz The record shows that numerous employees in Respondent's various departments
exceeded the 117 percent efficiency figure.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances surrounding the discharge are not entirely free of suspicion. Thus, it is not
without significance that Respondent made its decision to terminate Bolton without
first obtaining Bolton's version of the Smith incident and, indeed, withholding
Smith's identity as the one induced in the slowdown; on the other hand, it may be
that Respondent's conduct in this respect was motivated by a desire to shield Smith
against possible reprisal by Bolton. Furthermore, Respondent retained in its employ
other employees (e.g., Allen and Peace) whom it suspected of slowdowns, although
it is true (as Respondent claims) that none of them were also suspected of inducing
other employees to curtail production, as was Bolton. Moreover, it may be that
Respondent "simply wanted to make an `example' of [Bolton] in order to stop the
slowdown, and apparently felt that it was unnecessary to discharge [other employees]
to accomplish that purpose." California Cotton Cooperative, supra, 1496.
In any event, I have given weight to the countervailing factors supporting a finding
of discrimination and I find, on the basis of the whole record, that these are counter-
balanced by the factors supporting a contrary finding, including the circumstance
(already found) that Respondent's defense was not a concocted one. There is no
evidence of union animus on the part of Respondent at the plant here involved.
The record shows that until the recent incidents, Respondent had had long and
amicable relations with the Union extending over at least 10 years, during 6 of which
Bolton was union president. The parties have periodically signed collective agree-
ments, at least the last two with union shop and dues checkoff. There is no claim,
let alone evidence, that Respondent had at any time previously taken reprisal against
any employee for processing grievances or protesting wage rates-the protected activi-
ties of Bolton claimed by General Counsel to have motivated the discharge. From
all that appears, these activities were normal, everyday occurrences to which Respond-
ent willingly submitted in accordance with its contractual commitments. While it
may be (as Bolton testified Company officials had told him, supra, footnote 19),
that Respondent resented his filing of charges against two union members (Bacon
and Van Auken), I am satisfied that such resentment, even if established, was not a
substantial factor in Respondent's decision to terminate Bolton, particularly since
Respondent took no action against Bolton until after the Smith incident-long after
the charges were filed. Cf. Softexture Yarns, Inc., 128 NLRB 764, 766.
For all of the reasons stated and on the basis of the entire record, I find and con-
clude that General Counsel has failed to meet his burden of establishing by a prepon-
derance of the credible evidence that Respondent's termination of Bolton on May 22
was discriminatorily motivated, in violation of Section 8(a) (1) and (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and upon the entire record in this case,
it is recommended that the complaint be dismissed.
Worthington Corporation , Compressor and Engine Division I and
Office Employes International Union , Local No. 212, AFL-CIO,
Petitioner.2 Case No. 3-UC-1. October 13,1965
DECISION AND ORDER
Upon a Petition for Clarification duly filed under Section 9(b) of
the National Labor Relations Act, as amended, a hearing was held
before Hearing Officer Jeremy V. Cohen. All parties appeared and
were given full opportunity to participate at the hearing. Thereafter,
the Employer and the Petitioner filed briefs in support of their respec-
tive positions.
'The name of the Employer appears as amended at the hearing
'The name of the Petitioner appears as amended at the hearing.
155 NLRB No. 18.