International Harvester Co.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 1009 (N.L.R.B. 1972)

INTERNATIONAL HARVESTER COMPANY 1009
International Harvester Company and Tomas P. Rodri-
guez . Case 38-CA-1275
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On July 6, 1972, Administrative Law Judge I
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
1 The title of "Tnal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Trial Examiner: Upon the charges
filed by Tomas P. Rodriguez, an individual, the General
Counsel of the National Labor Relations Board issued a
complaint on March 24, 1972, alleging violations of Section
8(a)(1) and (3) of the Act. Respondent's answer denies the
alleged violations and a hearing was held on May 31, 1972.
Upon the entire record in the case, including my obser-
vation of the demeanor of witnesses and upon consideration
of briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an office
and place of business in Rock Island, Illinois, where it is
engaged in the manufacture of farm implements; during a
representative yearly period Respondent made inter-State
sales and purchases exceeding $50,000. Respondent admits,
and I find, that it is engaged in commerce within Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
United Automobile , Aerospace & Agricultural Imple-
ment Workers of America , Local 1309 , herein called the
Union , is a labor organization within Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
The General Counsel contends that Respondent har-
assed and interfered with the production of employees To-
mas Rodriguez and Herminio Salinas during the period
from about August 23, 1971, through September 14, 1971,
and that such harassment included disciplinary action
against these men in the form of reprimands and suspen-
sions. Further contending that such disciplinary actions
were in reprisal for charges filed by one of these employees
with the Illinois Fair Employee Practices Commission in
December 1970 and because they filed grievances against
Respondent under operative contract procedures, the Gen-
eral Counsel alleges that Respondent thereby violated Sec-
tion 8(a)(1) and (3) of the Act.
Rodriguez and Salinas, both born in the United States,
are of Mexican parentage and have been employed for
about 14 and 9 years, respectively, at Respondent's Farmall
Works in Rock Island, Illinois. At material times they were
employed in the IPTO room of Department 71 which is
within a multiplant bargaining unit of approximately 2,300
employees represented by the Union through a series of
collective bargaining agreements with Respondent. Jerry
Trask, also employed at the Farmall Works, is the Union's
zone committeeman in which capacity he represents IPTO
employees.
IPTO produces, in a subassembly line operation, an
integral part of the farm tractor manufactured at Farmall
Works. Under the operative contract between Respondent
and the Union, the wages of employees in this operation are
based on two factors-a fixed hourly rate and a piece work
or so-called incentive rate. Because of the nature of the
IPTO operation, the incentive rate is computed on a group
basis, with each shift member receiving the same amount,
and the Respondent expects or hopes for a level of produc-
tion which, translated in monetary terms, reaches a " timing
rate" of $1.06.
Disciplinary action in 1970
In the fall of 1970 a greasing operation was added to
the IPTO functions and some operations were retimed and
certain piece rates were changed. Employees were appar-
ently dissatisfied with the changes in piece rates. Production
decreased, and so did the incentive earnings of employees.
Respondent became concerned by what it considered to be
an employee slowdown-and Rodriguez admitted that he
and other employees did slow down-and Respondent, for
199 NLRB No. 144
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons of unsatisfactory production, issued oral repri-
mands to all five employees in the IPTO operation and a
written reprimand to Rodriguez. William Horak is
Respondent's industrial relations manager . Horak testified
that Respondent applied on that 1970 occasion a technique
it had previously developed for dealing with situations of
declining production. This technique involves, in brief, a
review of job content, tooling, and operational procedures
and close scrutiny of individual employee performance, im-
plemented by disciplinary action against any employee
whom it considers as not performing at an acceptable pace.
Horak testified that these measures were effective in the
1970 situation and that production did, in fact, consequent-
ly improve.
In December 1970, on the basis of the aforesaid scruti-
ny of employees and imposition of disciplinary action, Ro-
driguez filed a charge with the Illinois FEPC claiming that
Respondent had thereby discriminated against him because
of his Mexican ancestry. A complaint in the FEPC matter
was issued in June 1971, a hearing was held on September
23-24, 1971, and the Hearing Examiner's Decision issued on
May 1, 1972. The Hearing Examiner found no merit in the
claimed discrimination and thereupon recommended dis-
missal of that case.' No appeal has been taken from this
action, and the appeal period has expired.
Discipline in 1971
As previously stated, the General Counsel alleges in
the present case that Respondent disciplined and otherwise
harassed Rodriguez and Salinas in August and September
1971 because Rodriguez instituted the described 1970 ac-
tion before the Illinois FEPC and because both men filed
related grievances under the contract. Respondent concedes
that it reprimanded both men in late August and early
September 1971 and that it also suspended them for periods
of 1 and 3 days, the last suspension being made on Septem-
ber 10. Respondent denies taking such disciplinary action
because these individuals instituted the 1970 FEPC matter
or because they filed concurrent grievances under the con-
tract in that connection. Rather, Respondent asserts with
supporting evidence that it took such action because pro-
duction fell off again and that it invoked its aforementioned
procedures dealing with slowdown situations.
The 1971 situation under consideration developed in
August of that year when Respondent established a second
shift in the IPTO operation, consisting of Rodriguez, Sali-
nas, James Criddel, and with Terry Cahill as repairman.
There were some production differences between the work
performed on the first and second shifts. It was soon report-
ed to Industrial Relations Manager Horak that production
was low on the new second shift. Horak decided to wait
awhile. However, upon receiving a similar adverse report a
week later, Horak instructed that the shift be closely scruti-
nized in accordance with Respondent's slowdown handling
i The Hearing Examiner found that Respondent's "overwhelming concern
was production and not anyone's national ancestry" and that "the evidence
was overwhelming that respondent was acting from motives unrelated to
national ancestry " Matter of Tomas P Rodriguez and International Harvester
Farmall Works, State of Illinois Fair Employment Practice Commission,
Heanng Examiner's Recommended Order and Decision
procedure; and the aforementioned disciplinary actions
were taken, as provided in article XI of the contract, upon
the basis of managerial judgment to cope with the produc-
tion problem. The record shows that reprimands were also
issued to Criddle and Cahill on or about September 10 and
14, 1971, respectively.
Collective Bargaining Resolves 1971 Production Prob-
lems and 1970-1971 Disciplinary Actions.
Grievances were presented by the Union in all cases
of disciplinary actions, including the 1971 disciplinary ac-
tions in this case, under applicable grievance procedures.
Pursuant to the Union's request to review the entire IPTO
situation on both shifts, several meetings were held in
March 1972. These meetings were within the grievance pro-
cedures framework of the parties' contract and were attend-
ed by Local and International Union representatives and by
corporate and plant management personnel. The Union
made certain proposals to Respondent, and the parties fi-
nally agreed, in part, that Respondent would rescind all
disciplinary actions, including the 1970 and 1971 repri-
mands against all IPTO employees, and that it would pay
Rodriguez and Salinas the wages lost by them during their
respective suspensions. For its part the Union agreed that
it would urge IPTO personnel to "get back to work" and
improve production. Respondent thereupon did rescind all
disciplinary action and pay Rodriguez and Salinas their lost
wages and an International union representative did exhort
the employees "to try harder," and Union Committeeman
Trask later spoke in a similar vein to some employees on the
IPTO crew.
The implementation by both parties of their mutual
undertakings in March 1972 has apparently cleared the air
so far as IPTO production is concerned, and no further
disciplinary action has been taken against any IPTO em-
ployee on that or any other account. Rodriguez, however,
filed still another action before the Illinois FEPC on the
basis of the August 1971 disciplinary action involved in this
case . This second FEPC action has also been dismissed by
that agency for lack of substantial evidence, and no appeal
has been taken.
The Present Case
In the present case we have the General Counsel's
claim that Respondent harassed and disciplined Rodriguez
and Salinas in August and September 1971 purportedly for
initiating the 1970 FEPC case.2
The operative contract proscribes, among other thing,
production slowdowns by employees (article X) and dis-
crimination by Respondent on the basis of national origin
(article IX), and it also deals extensively with procedures for
handling grievances and other labor relations disputes (arti-
cles VI-VII). The, State FEPC resolved the matter of dis-
crimination in its proceedings; and in the March 1972
2 Unfair labor practice cases are , of course , tried on the basis of the
complaints, not the charges It is nevertheless interesting to note Rodriguez'
testimony that the charge of discrimination in the present case is, in effect,
the same claim which was dismissed by the Illinois FEPC , namely, an allega-
tion of on-the-job discrimination and harassment for reasons of national
origin
INTERNATIONAL HARVESTER COMPANY 1011
meetings the Union , representing Rodriguez and Salinas
and all other IPTO employees, also settled with Respondent
the related disciplinary and production matters. After coun-
sel for the parties presented their respective statements of
position early in this proceeding, I indicated my view 3
3 Title II, Section 201 , of the Act provides in part
That it is the policy of the United States that-
(a) sound and stable industrial peace and the advancement of the
general welfare , health, and safety of the National and of the best
interest of employers and employees can most satisfactorily be secured
by settlement of issues between employers and employees through the
processes of conference and collective bargaining between employers
and the representatives of their employees.
(b) the settlement of issues between employers and employees
through collective bargaining may be advanced by making available full
and adequate governmental facilities for conciliation , mediation, and
voluntary arbitration to aid and encourage employers and the represent-
atives of their employees to reach and maintain agreements concerning
rates of pay , hours, and working conditions , and to make all the reason-
able efforts to settle their differences by mutual agreement reached through
conferences and collective bargaining or by such method as may be provided
for in any applicable agreement for the settlement of disputes ..[Emphasis
supplied I
Cf. Collyer Installed Wire, 192 NLRB No. 150 Indeed , the maintenance of
the present action is at odds, in my judgment , with the underlying rationale
of Spielberg Mfg Co, 112 NLRB 139 For, if the disputed disciplinary action
-and it remains my opinion-that this case should be dis-
missed for the reason that the Union and the Respondent
have resolved all matters appropriately within the present
complaint and that further proceedings herein would not
effectuate the policies of the Act.4
Upon all the foregoing, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
It is hereby ordered that the complaint herein be dis-
missed.
had gone the arbitration route, rather than having been resolved at an earlier
grievance stage , such arbitral decision would have ended the matter
° I deemed it prudent that the parties make their record should the Board
disagree with my view, and I accordingly also denied Respondent 's motion
to dismiss at the conclusion of the General Counsel's case-in-chief The
record does not, in my view, preponderantly establish the unfair labor prac-
tices alleged here, but I have not detailed evidentiary praticulars in this
connection for I do not rely on such basis for my action herein
5 In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes