Ona Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 373 (N.L.R.B. 1984)

ONA CORP.
Onan, a Division of Ona Corporation and United
Auto, Aerospace & Agricultural Implement
Workers (UAW), International Union. Cases
10-CA-18628 and 10-CA-18797
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 June 1983 Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Onan, a Di-
vision of Ona Corporation, Huntsville, Alabama, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
t The judge inadvertently dates the Union's request for bargaining
over employee Smart's discharge as II October 1982. The correct date is
4 October 1982.
The judge found that in its 17 August letter the Respondent admitted it
was in the process of upgrading job classifications. We find that the Re-
spondent merely acknowledged that it was in the process of updating job
classifications. (See the Respondent's letter which is set out in full in the
judge's decision.)
2 In agreeing with the judge that the Respondent violated Sec. 8(aXS)
and (I) by refusing to bargain with the Union about Armstrong's pay
grievance, we disavow any possible implication that the judge may have
created in fn. 8 of his decision that the parties are required to agree that
Armstrong is owed any amount of backpay. See H. K. Porter Co. v.
,NLRB, 397 U.S. 99 (1970). We also note that Shaw College, 232 NLRB
191 (1977), cited by the judge in fn. 8 is inapposite, since there is no find-
ing in this case that Armstrong is entitled to backpay.
Since he concludes that the Respondent engaged in unlawful conduct
by refusing to discuss employee Armstrong's grievance over an evalua-
lion describing him as a "[u]nion pusher," Member Hunter finds it unnec-
essary to pass on any other theory of a violation the judge set out.
Member Hunter also notes that the Respondent offered to give Arm-
slrong that document when he complained about it. but that Armstrong
refused to take the evaluation. Nonetheless, in the absence of evidence
that the Respondent has taken the appropriate remedial action. Member
Hunter adopts the judge's order directing that the document be expunged
from all files the Respondent maintains
270 NLRB No. 69
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Huntsville, Alabama, on March
15 and 16, 1982. Included are two complaints and
amendments. The first complaint, Case 10-CA-18628,
issued on December 2, 1982, and was predicated on a
charge which was filed on October 18, 1982, amended
on October 28, 1982, and second amended on November
29, 1982. An amended complaint in Case 10-CA-18628
issued on January 6, 1983. Subsequently, a complaint
issued on March 2, 1983, showing in its caption Cases
10-CA-18797 and 10-CA-18628. That complaint re-
ferred to a charge, evidently Case 10-CA-18797, which
was filed on December 13, 1982. The General Counsel
made other amendments during the hearing herein. As
shown hereinafter, the complaints allege that the Re-
spondent engaged in various activities in violation of
Section 8(a)(1), (3), and (5) of the Act.
On the entire record, and from my observation of the
witnesses, and after consideration of the briefs filed by
the General Counsel, the Charging Party, and Respond-
ent, I make the following
FINDINGS OF FACT'
I. BACKGROUND
An organizing campaign was conducted by the Union
at Respondent's facility during the spring of 1979. An
election was held on June 22, 1979. The Union received
189 votes, 179 votes were cast against the Union, and
there were 33 challenged ballots.2 Subsequently, pursu-
ant to unfair labor practice charges and objections to the
election filed by the Union, the Board found that Re-
spondent had engaged in various 8(a)(1) violations and in
8(a)(5) refusal-to-bargain violations. In the decision noted
above, the Board ordered Respondent to recognize and
bargain with the Union.
Shortly after the Board's decision issued on May 28,
1982, a union membership campaign was initiated. The
instant allegations occurred around the time of the
summer 1982 membership campaign.
II. EMMETT SMART
In several complaints and amendments, 3 the General
Counsel alleges that Respondent violated Section 8(a)(1)
I The commerce facts and conclusions are not at issue. The complaint
alleges, the answer admits, and I find that Respondent is a Delaware cor-
poration with offices and a place of business located at Huntsville. Ala-
bama, where it is engaged in the manufacture of gasoline engines, genera-
tors, and other products, and is an employer engaged in commerce within
the meaning of Sec. 2(6) and (7) of the Act. The complaint also alleges,
the answer admits, and I find that United Auto, Aerospace & Agricultur-
al Implement Workers (UAW) International Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
2 See 261 NLRB 379.
3 It is the practice of the instant Regional Office of the Board, and
perhaps other Regional Offices as well, to issue unconsolidated com-
plaints in a single unfair labor practice proceeding. The instant case in-
volves an example of that practice.
Continued
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (3) by disciplining and discharging, and Section
8(a)(5) by refusing to bargain about the discharge of,
former employee Emmett Smart.
A. The 8(a)(3) Allegation (re Smart)
I have considered Smart's August and September 1982
disciplinary warnings and discharge against elements nor-
mally considered by the Board in assessing 8(a)(3) com-
plaints.
1. Knowledge of Smart's union activities
Both Emmett Smart and Ezell Whorten4 testified
about Smart's union activities. Smart testified that he was
first active in the Union's 1979 campaign and subsequent-
ly in their 1982 membership campaign.
Smart testified that in 1979, he wore a union hat, shirt,
and button, and helped sign employees to union authori-
zation cards. In 1982, according to Smart, he solicited
employees to sign union membership cards, told employ-
ees of union meetings, signed a membership card himself,
and he wore a union hat and T-shirt and kept a union
button on his machine at work.
Ezell Whorten also testified about Smart's union ac-
tivities. Whorten played a prominent role in the prior
unfair labor practice litigation (see 261 NLRB 1379), and
in the 1979 and 1982 union campaigns. Whorten's testi-
mony herein about Smart's union activities was limited
to Smart's activities in 1982. Whorten testified that Smart
was one of three or four employees asked by Whorten to
assist in soliciting employees to sign union membership
cards in 1982. Whorten stated there were about 300 em-
ployees at Respondent's facility. According to Whorten,
Smart did help in getting employees to sign union mem-
bership cards in 1982.
However, Respondent denied knowledge of any of
Smart's union activities. Smart's immediate supervisor,
Carolyn Zuhn, testified that she was aware there were
some union activities starting in May 1982. However, ac-
cording to Zuhn, she did not see Emmett Smart wearing
union insignia, and union activity played no part in
Smart's discharge. Zuhn also denied having any conver-
sation with Ezell Whorten concerning Smart's discharge.
Ezell Whorten testified before Zuhn. Whorten testified
that, about a week after Smart was discharged, Carolyn
In a complaint, G.C. Exh. I(g), which issued on December 2, 1982, the
General Counsel alleged the Respondent discharged Emmett Smart on
September 9. 1982, in violation of Sec. 8(a)(1) and (3).
In an amended complaint, G.C. Exh. l(j), which issued on January 6,
1983, the General Counsel alleged that Respondent issued reprimands to
Smart in August 1982, and discharged Smart on September 2, 1982, in
violation of Sec. 8(aXl) and (3).
Finally, in a complaint, G.C. Exh. l(r), which issued on March 2, 1983,
the General Counsel again alleged that Respondent discharged Smart on
September 2, 1982. However, in that complaint, the General Counsel al-
leged that Respondent failed to bargain with the Union following the
Union's request to bargain about, inter alia, Smart's discharge. The
March 2, 1983 complaint did not include an allegation of 8(aX3) viola-
tions, but instead alleged violations of Sec. 8(aXl) and (5). This last com-
plaint was subsequently amended at the hearing.
Fortunately, the Region's refusal to simplify its complaint procedure
does not appear to have resulted in harm to other parties in this instance.
4 Although spelled Horten in the transcript, both Respondent and the
General Counsel spelled this witness' name as Whorten.
Zuhn asked Whorten if he were angry because she had
fired one of his union supporters.
Whorten also testified that around mid-July to the first
of August,5 Carolyn Zuhn came up while he was giving
Emmett Smart some union cards and asked what he had.
Whorten replied that he had "damn union cards."
Smart's testimony corroborated Whorten on the July 20,
1982 "damn union cards" incident involving himself,
Whorten, and Carolyn Zuhn.
2. Timing
Smart was discharged by Respondent on September 2,
1982. The union membership campaign was initiated in
May 1982. Smart's immediate supervisor allegedly knew
of his involvement with union activist Ezell Whorten by
mid-July 1982.
Therefore, it is apparent that, from the standpoint of
proximate time, the date of Smart's discharge raises sus-
picion as to the legality of Respondent's motive.
3. Animus
There is no doubt from a reading of the prior case (see
above 261 NLRB 1379) that Respondent strongly op-
posed the Union.
4. Motivation
Respondent contended that Emmett Smart was dis-
charged on September 2, 1982, because his production
continued to be low. After his supervisor warned him on
three occasions, she set production minimums which
Smart failed to achieve.
Smart admitted to Respondent's assertion that he had a
history of production problems. He admitted that in ad-
dition to warnings from his last supervisor, Carolyn
Zuhn, he was also cautioned about his production and
about other work-related difficulties by all save one of
his prior supervisors. Smart admitted that when cau-
tioned by those other supervisors, he improved his pro-
ductivity. Respondent points to that admission as the dis-
tinguishing aspect of Smart's discharge. According to
Supervisor Carolyn Zuhn, Smart failed to improve fol-
lowing her warnings. Surprisingly, Smart admitted that
his productivity decreased during August 1982. Howev-
er, Smart contended that his decrease in productivity
was because of a defective spindle clutch on his ma-
chine-the P.J. 400.
Respondent did not deny that the P.J. 400 had a defec-
tive spindle clutch. The spindle clutch was replaced the
week after Smart's discharge. However, Respondent of-
fered testimony that the defective spindle clutch did not
adversely affect productivity on the machine. Respond-
ent pointed out that following Smart's discharge but
before the spindle clutch was replaced, employee Neal
operated the defective machine at a speed which greatly
exceeded Smart's rate (i.e., 88.8 percent for Neal; Smart
51.27 percent on September 2 and 41.39 percent on Sep-
tember 1, 1982).
s Whorten testified this incident occurred before Carolyn Zuhn
became a supervisor. Zuhn was promoted supervisor on July 29, 1982.
374
ONA CORP.
The General Counsel argues that Smart was treated in
a disparate manner. In support of its position, the Gener-
al Counsel points to Respondent's Exhibit 13 which
shows efficiency ratings for five employees that ran the
P.J. 400 between August 1, 1982, and September 5, 1982.
The General Counsel argues that the records illustrate
that among the five employees listed on Respondent's
Exhibit 13 alleged discriminatee Smart did not consist-
ently score lower than all four other employees.
B. The 8(a)(3) Factual Findings on Disputed
Elements
1. Knowledge
In consideration of the evidence regarding knowledge,
I have carefully examined the testimony of the three crit-
ical witnesses, Emmett Smart, Ezell Whorten, and Caro-
lyn Zuhn.
I was impressed by Smart's demeanor and testimony.
His responses to cross-examination, and especially the
questions which proved that his productivity has been
poor under a series of supervisors, were impressive. I
find that Smart was a truthful witness.
Unfortunately for the General Counsel, I did not find
Ezell Whorten as candid as Smart. During cross-exami-
nation, it appeared that Whorten tried to embellish his
testimony by exaggerating his knowledge of facts which
would tend to support the General Counsel. For exam-
ple, for the first time, even though Whorten previously
testified to Regional Office investigators, he remembered
that Emmett Smart commented to the effect that Caro-
lyn Zuhn was motivated because of Smart's union activi-
ties. Moreover, I noticed that Whorten's role in the pre-
vious hearing before Administrative Law Judge Evans
(see 261 NLRB 1379 supra) was remarkably similar to
his position in the instant case. There, as here, a supervi-
sor allegedly disclosed to him facts which would tend to
support a case for an illegal discharge. Administrative
Law Judge Evans found Whorten's demeanor was ques-
tionable. Due to the above considerations, and my obser-
vation of Whorten's demeanor, I am unable to credit
Whorten's testimony to the extent that it was not sup-
ported by other credited evidence.
As to Supervisor Carolyn Zuhn, I was generally im-
pressed with her testimony. In fact, in most areas her tes-
timony agrees with that of Emmett Smart. However, I
found disturbing Zuhn's testimony regarding her knowl-
edge of Smart's union activities. Zuhn did not deny that
on one occasion before she became supervisor she saw
Ezell Whorten give union cards to Emmett Smart, nor
did she deny asking Whorten what the cards were.
Moreover, Zuhn admitted that she knew of the employ-
ees' union activities beginning in May 1982. Neverthe-
less, she denied knowledge as to any of Smart's union ac-
tivities including knowledge that Smart wore a union
hat, shirt, maintained a button on his machine at work,
and solicited other employees to sign union membership
cards. I am unable to credit Zuhn's testimony in that
regard.
I specifically find that in July 1982 Carolyn Zuhn ob-
served Ezell Whorten giving union cards to Emmett
Smart. Zuhn asked and was told by Whorten that the
cards were union cards.
However, due to my discrediting Ezell Whorten, I
find that Zuhn did not go to Whorten after Smart's dis-
charge and ask if Whorten was angry because Zuhn had
fired one of his union supporters.
2. Motivation and disparity
The record established, without rebuttal, the following
regarding Emmett Smart's productivity during the short
period he was under the supervision of Carolyn Zuhn.
On August 3 and 4, 1982, shortly after Zuhn became
his immediate supervisor, Smart's daily performance effi-
ciency statistics reflect that his productivity was higher
than the average in his department. Thereafter, on suc-
cessive workdays in August 1982, Smart's performance
efficiency was as follows:
Date
Aug. 5
Aug. 6
Aug. 9
Aug. 10
Aug. 11, 12 and 13
Aug. 16
Aug. 17
Percentage
74.38
73.13
67.88
30.00
Vacation
51.38
55.50
On August 17, 1982, Carolyn Zuhn called Emmett
Smart into the office after having had earlier informal
discussions with him about his productivity. Smart com-
plained about the mechanical operation of his machine.
Subsequently, Zuhn had Industrial Engineering Techni-
cian Tim McCarley check out the P.J. 400. According to
McCarley's report to Zuhn and his testimony in the in-
stant hearing, the P.J. 400 was actually running faster
than standard on that date, even though its spindle
clutch was slipping. Zuhn showed McCarley's figures to
Smart, and Smart agreed that he would put forth a 100-
percent effort.
Subsequently, the daily performance efficiency records
for August 1982 show the following as to Emmett
Smart:
Date
Aug. 18
Aug. 19
Aug. 20
Aug. 23
Aug. 24
Percentage
26.33
44.00
46.00
47.25
44.80
Again on August 24, Zuhn called Smart into the su-
pervisor's office. She pointed out to Smart that instead of
improving, he was backsliding. Smart mentioned adjust-
ing his tooling or that the machine was running slower.
Zuhn then used a stopwatch and timed Smart's operation
on the P.J. 400. She took her figures to Tim McCarley
and was told that in consideration of those figures,
Smart's production should be 95 percent. Zuhn informed
Smart what she had been told by McCarley. Zuhn then
set a goal of 89 percent for Smart. Smart indicated that
he felt the goal was fair.
Subsequently, Smart's figures for August 1982 showed:
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Date Percentage
Aug. 25 46.03
Aug. 26 33.25
Aug. 27 Off Work
Aug. 30 37.68
Zuhn planned to discuss Smart's performance with
him on August 27. However, due to Smart's being off on
August 27, Zuhn met with Smart on August 30. Because
of Smart's continued low production, Zuhn issued a
written warning to Smart that date. The warning stated,
inter alia, "continued poor performance will result in
your termination."
Following August 30, Smart's figures for 1982 showed:
Date
Aug. 31
Sept. 1
Sept. 2
Percentage
52.13
41.39
51.27
Another meeting was scheduled with Smart on Sep-
tember 3. However, before that date, Smart asked to be
off on Friday, September 3. Zuhn told Smart that the
problem with his work was serious. Nevertheless, Smart
insisted on taking off due to a doctor's appointment.
Smart indicated he was having sinus problems. With
that, the Zuhn-Smart meeting was moved to the after-
noon of September 2.
At the September 2 meeting, Zuhn and another super-
visor, Don Zimmerman, had Smart's production figures
through the preceding day (September 1). During the
meeting, Smart was told that he was being terminated
due to his consistently low production.
Carolyn Zuhn testified that Smart differed from other
employees that received warnings for low production by
his failure to improve following counseling.
C. Legal Conclusions
As shown above, the credited evidence proved that,
before becoming supervisor, Carolyn Zuhn learned of
Emmett Smart's involvement with known union pusher
Ezell Whorten, by observing Whorten giving union
cards to Smart. Smart wore union insignia on his person
and machine in full view of Zuhn. Additionally, the
record supports the General Counsel in elements of
timing and union animus.
However, Respondent advanced as its justification for
the discharge of Smart a business-related motivation
which was not overcome by the General Counsel. The
record clearly demonstrated that Smart's efficiency rat-
ings continued to be low throughout the month of
August 1982, despite discussions, warnings, and a written
reprimand from his supervisor. Supervisor Zuhn then set
production quotas which Smart failed to even approach.
She issued a warning to discharge absent improvement.
Yet, despite all those danger signals, Smart never
achieved a reasonable level of productivity.
The General Counsel points to Respondent's Exhibit 13
as demonstrating disparity. However, the employees,
other than Smart, mentioned in that document were not
full-time P.J. 400 operators. Nevertheless, the productivi-
ty figures show that occasional operators oftentimes op-
erated the P.J. 400 at a higher efficiency rating than did
Smart, the regular operator. Those other operators in-
cluding Neal, operated at a higher efficiency than Smart
at times when the machine's spindle clutch was defec-
tive.
Therefore, I find under the rationale of Wright Line,
251 NLRB 1083 (1980), that regardless of the General
Counsel's prima facie case, Respondent proved that
Emmett Smart would have been discharged in the ab-
sence of his union activities. I recommend that the
8(a)(3) allegation be dismissed.
D. The 8(a)(5) Allegation as to Emmett Smart
Following Smart's discharge on September 2, 1982,
the Union on October 4, 1982, requested Respondent to
bargain about Smart's discharge. On October 11, 1982,
Respondent refused the Union's request.
As mentioned above, Respondent was ordered to bar-
gain with the Union on request by the Board's May 28,
1982 Order. 6 That case is now pending a determination
as to enforcement by the Eleventh Circuit Court of Ap-
peals. For the sake of this litigation, I must, and do, pre-
sume that the Board's Order is a valid one which will be
enforced by the court.
Discharge is a mandatory subject of bargaining, and
Respondent erred in refusing the Union's request in view
of the Union's status as exclusive bargaining representa-
tive. However, it is not alleged, and the evidence did not
show, that Smart was discharged because of unilateral
changes in working conditions, in violation of Section
8(a)(5). In fact, a reading of the prior case (see above,
261 NLRB 1379) demonstrates that it was Respondent's
practice, at that time, to discharge employees for low
production. A unilateral change would necessitate a
remedy including reinstatement. However, that is not the
case here.
The typical 8(a)(5) remedy, which is appropriate here,
requires restoration of the status quo ante. Here, the
status quo is that which was in effect on October 11,
1982, the date the Union requested negotiations over
Smart's discharge. In other words, Respondent has no
obligation to reinstate Smart with backpay before negoti-
ations over his discharge. Those negotiations may or
may not result in agreement to reinstate Smart.
I find that the General Counsel's reliance on cases
which it asserts would require traditional 8(a)(3) remedy
for Smart's discharge, including backpay and reinstate-
ment, are misplaced in view of my findings above. 7
E. Roger Armstrong
The allegations going to Armstrong include 8(a)(1)
and (5) allegations that Respondent maintained a docu-
ment in Armstrong's file which identifies him as a union
pusher, that Respondent has since July 15, 1982, refused
to pay Armstrong the proper wage rate, and Respondent
has refused the Union's request that it bargain about both
of those issues.
Supra, 261 NLRB 1379.
' Unlike the situation in authority cited by the General Counsel includ-
ing Shaw College, 232 NLRB 191 (1977), the evidence did not show that
Respondent was obligated to notify and bargain before discharging Smart.
376
ONA CORP.
1. Did Respondent refuse to properly classify Ray
Roger Armstrong?
In the past 2 years, Respondent introduced a diesel
program. That program, plus what Respondent's manag-
er of quality assurance characterized as a need to be
better organized, ultimately lead Respondent to reclassify
some of its jobs.
Until January 1983, Roger Armstrong was classified as
J-Ill inspector. Other classifications at that time included
the positions of inspector specialist and industrial engi-
neering technician. Both the inspector specialist and the
industrial engineering technician positions included
higher maximum pay scales than the J-III inspector job.
During the summer 1981, Roger Armstrong was trans-
ferred into the "gear lab." While in the gear lab, Arm-
strong's duties included duties which he felt fell within
the scope of the industrial engineering technician job de-
scription.
On August 3, 1982, Armstrong filed a written griev-
ance with Respondent claiming that he was performing
technician duties. Armstrong requested that he be up-
graded "to at least an inspector specialist."
On August 10, 1982, the Union, in a letter to Respond-
ent's Manager Don Fore, requested Respondent to meet
and bargain over, inter alia, Respondent's "refusal to pay
Roger Armstrong the proper pay rate."
Armstrong's grievance was denied by Respondent. In
a note dated August 17, 1982, Manager of Employee and
Community Relations Ronald Polk wrote the following
regarding Armstrong's request:
Due to numerous changes over the past two years,
with the introduction of the diesel engine, changes
to and additions of new manufacturing methods and
inspection procedures, current job descriptions are
outdated. Job tasks that were historically associated
with a particular job classification may or may not
now be included in the same job classification. This
will not be known until all job descriptions are up-
dated. Efforts to update all job descriptions within
the QA department are underway.
Request for upgrading cannot be approved at this
time.
On August 18, 1982, Plant Manager Fore wrote the
Union denying its request to bargain over the Roger
Armstrong pay rate grievance.
Eventually, Respondent completed its upgrading of
various job descriptions. In January 1983, Roger Arm-
strong was reclassified "layout inspector." That position
was created in January 1983. It did not exist at the time
of Armstrong's grievance.
2. Findings
In view of the above evidence, there appears to be no
doubt that Respondent violated Section 8(a)(5) of the
Act by refusing to bargain regarding Roger Armstrong's
pay rate. As shown above, Respondent's obligation to
recognize and bargain with the Union was clearly estab-
lished by the Board's Order dated May 28, 1982 (261
NLRB 1379).
Moreover, the evidence, including the above-quoted
August 17, 1982 note from Ronald Polk, demonstrates
that from before the Union's August 10, 1982 demand to
bargain about Armstrong's grievance, Roger Armstrong
was performing duties which exceeded the scope of the
J-III Inspector position. Respondent acknowledged in its
note to Armstrong, both the need to upgrade his job
classification and the fact that it was in the process of ac-
tually upgrading job classifications.
The above facts show two distinct bases through
which Respondent had an obligation to meet and bargain
with the Union. First, of course, there was an outstand-
ing grievance from Roger Armstrong which was being
considered by Respondent. As Armstrong and his fellow
employees' bargaining representative, the Union was en-
titled to negotiate over that grievance.
Secondly, Respondent's ongoing reclassification proc-
ess evidences the occurrence of a change in working
conditions. Since that change affected unit personnel in-
cluding Armstrong, the Union was entitled to consider-
ation and an opportunity to negotiate before the new
classifications were unilaterally installed.
Therefore, I find that Respondent violated Section
8(a)(5) by refusing to negotiate from the Union's August
10, 1982 request, regarding the job classification and
proper pay rate for Roger Armstrong.
However, I specifically find that the General Counsel
failed to prove that Roger Armstrong functioned within
the scope of other job classifications which existed
during 1981 and 1982. In that regard, Roger Armstrong
expressed belief that he was functioning as a technician
from the time he was assigned to the gear lab. Arm-
strong pointed in particular to the fact that he was train-
ing inspectors and others, and the fact that he programed
the computer.
The record demonstrated that while Armstrong evi-
denced a sincere belief that his duties were those of a
technician, he was not actually functioning at that level.
In actuality, what the record demonstrated was that
Armstrong familiarized others, including a technician,
with the machines in the gear lab. Familiarization with
gear lab machinery does not qualify as a duty within the
job description of a "technician." That job description
requires that technicians must be able to "train inspectors
in all phases of inspection." No evidence was offered to
show that Armstrong was so qualified. The familiariza-
tion process did not serve to train people to become in-
spectors. Persons that had previously qualified as inspec-
tors required familiarization whenever they changed to
different machinery. That was the type training per-
formed by Armstrong.
Similarly, the evidence failed to show that Armstrong
possessed the capability of programing computer-assisted
measuring machines. The record demonstrated that tech-
nicians programed the computers in order to permit
others to feed into the computer the measurements of the
various gears handled by Respondent from time to time.
Armstrong's duties included feeding those gear measure-
ments into the preprogramed computer-a function total-
ly different from the programing function.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, my Order shall not include a recommenda-
tion that Roger Armstrong is entitled to backpay meas-
ured in relation to the 1982 pay classifications of either
technicians or inspectors specialist. My recommended
Order will require Respondent to bargain with the Union
under conditions as they existed when the Union made
its August 10, 1982 request. The result of that bargaining
should be retroactive to August 10, 1982. While Arm-
strong was performing above the J-III Inspector position
during August 1982, he was not performing as an "In-
spector Specialists" or as an "Industrial Engineering
Technician." s
2. The "Termination Evaluation"
From a July 27, 1979 layoff until discovered by Roger
Armstrong in the summer of 1982, Respondent main-
tained a completed termination evaluation questionnaire
in Armstrong's personnel file which identified Armstrong
as a "union pusher." As illustrated during the instant
hearing, that document was available for examination by
Armstrong along with various supervisory employees.
3. Findings
Obviously Respondent maintained the above-men-
tioned document in Armstrong's file in violation of the
provisions of Section 8(a)(1) of the Act. That provision
of the Act proscribes the interference, restraint, and co-
ercion of employees in the exercise of protected activi-
ties, including union activities. Here, the questionaire in
material respect, as to Roger Armstrong, stated:
Weak points? Union pusher.
That notation has the tendency to coerce and restrain
Armstrong and other employees that learned of its exist-
ence.
When Armstrong complained about the termination
evaluation, Respondent offered the document to Arm-
strong, but he refused to accept the evaluation. Howev-
er, Respondent refused to bargain with the Union about
Armstrong's grievance regarding the evaluation.
Technically, Respondent was obligated to bargain with
the Union as its employees' exclusive collective-bargain-
ing representative regarding Armstrong's grievance.
With that in mind, I find that by maintaining the evalua-
tion in Armstrong's file and by refusing to bargain about
Armstrong's grievance over the evaluation, Respondent
violated Section 8(a)(1) and (5).
From a practical standpoint, it is difficult to determine
how Respondent could engage in the give-and-take proc-
ess of negotiations over a matter which was prohibited
by law. Therefore, in my recommended remedy, I shall
8 Since Armstrong performed in the gear lab before Respondent was
obligated to recognize and bargain with the Union, I find that General
Counsel failed to prove that Respondent violated Sec. 8(a)(5) solely by
refusing to properly pay Armstrong. There was no showing that Re-
spondent's refusal to pay Armstrong at a rate higher than that due a J-Ill
inspector constituted a unilateral change. Backpay, which may be due
Armstrong under the rationale of Shaw College, supra at fn. 7, because of
Respondent's refusal to bargain over Armstrong's grievance, may be de-
termined, if necessary, in compliance proceedings.
recommend that the evaluation must be expunged9 from
Respondent's files and that Respondent be required to
post an appropriate notice. I shall not recommend that
Respondent be ordered to bargain regarding Armstrong's
grievance over the termination evaluation. Such an order
would be moot in view of my Order that the evaluation
be expunged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Auto, Aerospace & Agricultural Implement
Workers (UAW), International Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By maintaining in its files a document which identi-
fies its employee as a "union pusher," Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. All production and maintenance employees em-
ployed by Respondent at its Madison, Alabama, facility
including all work leaders, quality control inspectors,
and testing technicians, but excluding all office clerical
employees, professional employees, guards and supervi-
sors as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. At all times material herein, United Auto, Aero-
space & Agricultural Implement Workers (UAW), Inter-
national Union, has been, and is, the exclusive collective-
bargaining representative of the employees in the above-
mentioned appropriate unit."'
6. By refusing to bargain with the Union regarding the
discharge of employee Emmett Smart and the grievances
of employee Roger Armstrong, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
7. Respondent has not otherwise engaged in violations
of unfair labor practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that they be ordered
to cease and desist therefrom, and take certain affirma-
tive action designed to effectuate the policies of the Act.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended t
I Although the record shows Respondent tried to remove the termina-
tion evaluation from Armstrong's file in 1982, the evidence does not
show that Respondent took any action to remedy the effects of its main-
tenance of that document. Moreover, the document should be expunged
from all files of Respondent and its agents, and not simply from Arm-
strong's personnel file.
io See Ona Corp., 261 NLRB 1379 (1982).
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
378
ONA CORP.
ORDER
The Respondent, Onan, a Division of Ona Corpora-
tion, Huntsville, Alabama, its officers, agents, successors,
and assigns, shall
i. Cease and desist from
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, in violation of Section 8(a)(1) of the
Act, by maintaining in its records a document which
identifies its employee as a "union pusher."
(b) Refusing to bargain collectively with United Auto,
Aerospace & Agricultural Implement Workers (UAW),
International Union, as the exclusive representative of its
employees in the following appropriate bargaining unit,
with respect to the rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment by
refusing to bargain regarding the discharge of employee
Emmett Smart and the grievances of employee Roger
Armstrong:
All production and maintenance employees em-
ployed by Respondent at its Madison, Alabama, fa-
cility including all work leaders, quality control in-
spectors, and testing technicians, but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act.
(a) Upon request by the Union, meet and bargain with
the Union as exclusive representative of its employees in
the above-described bargaining unit regarding the dis-
charge of employee Emmett Smart and the proper pay
grievance of employee Roger Armstrong in the manner
set forth above in this decision.
(b) Expunge from its files any reference to Roger
Armstrong as "union pusher" and notify the Union and
Armstrong, in writing, that this has been done, and that
the reference to him as a union pusher will not be used
as a basis for future personnel action against him.
(c) Post at its Madison, Alabama facility copies of the
attached notice marked "Appendix." 2 Copies of said
notice on forms provided by the Regional Director for
Region 10, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT maintain documents in our files which
identify our employee as a "union pusher" because of
our employees' union activities.
WE WILL NOT refuse to bargain collectively with
United Auto, Aerospace & Agricultural Implement
Workers (UAW), International Union, as exclusive col-
lective-bargaining representative of our employees in the
appropriate bargaining unit described:
All production and maintenance employees em-
ployed by Respondent at its Madison, Alabama, fa-
cility including all work leaders, quality control in-
spectors, and testing technicians, but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT refuse to bargain on request by the
Union, regarding the discharge of our employees, or re-
garding grievances filed by employees in the appropriate
unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees with respect to
their exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act.
WE WILL, on request by the Union, rescind our ac-
tions in denying the grievances of Emmett Smart and
Roger Armstrong and restore the status quo ante by re-
considering those grievances through negotiations with
the Union at the state of proceedings as they existed
when the Union made their respective request to bargain
regarding those matters.
WE WILL expunge from our records any reference to
Roger Armstrong as a "union pusher," and WE WILL
notify the Union and Roger Armstrong in writing of our
action in that regard.
ONAN, A DIVISION OF ONA CORPORATION
379