General Motors Corp.

National Labor Relations Board - Board Decisions

Mar 5, 1981

254 N.L.R.B. 1129 (N.L.R.B. 1981)

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1129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Motors Corporation and Frank Hammer.
Case 7 16583
March 5, 1981
DECISION AND ORDER
On 28, 1980, Administrative Law Judge
Peter E. issued the attached Decision in
this proceeding. Thereafter, counsel for the Re-
spondent exceptions and a supporting brief.
The has considered the record and the at-
tached in light of the exceptions and brief
and has to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, General
Motors C'orporation, Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Adm Law Judge.
The Respondent has excepted to certain credibility findings made by
the Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us he resolutions are incorrect. Standard Dry Wall Products,
91 544 enfd. 188 362 (3d Cir. 1951). We have
carefully mined the record and find no basis for reversing his findings.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY OF THE

ATIONAL LABOR RELATIONS BOARD

An
of the United States Government
WILL NOT issue special instructions to
to take breaktimes in designated
rest areas to discourage employees from
or encouraging other employee griev-
ances and committeeman calls and instigating
concern over the speed of the
y line.
WILL NOT issue written reprimands to
employees to discourage employees from solic-
iting and encouraging other employee griev-
ances and committeeman calls and instigating
employee concern over the speed of the
y line.
N O T suspend employees for en-
couraging employee grievances and commit-
254 No. 148
teeman calls and instigating employee concern
over the speed of the assembly line.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the Act.
WE WILL expunge and remove from our re-
cords any reference to the special job instruc-
tions given to Frank Hammer on June 21,
1979; the written reprimand given to Frank
Hammer on June 29, 1979; and the disciplinary
layoff given to Frank Hammer on July 10,
1979.
WE make Frank Hammer whole for
any loss of pay which he might have suffered
as a result of our discrimination practiced
against him, with interest.
OF THE CASE
PETER E. Administrative Law Judge: The
charge herein was filed by Frank Hammer, an individual,
herein sometimes called the Charging Party, on July 16,
1979. A complaint thereon was issued on August 29,
1979, alleging that General Motors Corporation, herein
called the Employer or Respondent, violated Section
and (3) of the National Labor Relations Act, as
amended, by issuing special job instructions, a written
reprimand, and a I - suspension to Hammer for
encouraging and soliciting employees to protest the
speed of an assembly line. An answer thereto was timely
filed by Respondent, and, pursuant to notice, a hearing
was held before the Administrative Law Judge on
March and May 12 and 13, 1980. Briefs have been
timely filed by the General Counsel and Respondent
which have been duly considered.
The Employer is a Delaware corporation with its prin-
cipal and place of business in Detroit, Michigan,
and a plant located in Warren, Michigan, the only facili-
ty involved herein. During the calendar year 1978, a rep-
resentative period, the Employer, in the course and con-
duct of its business operations, purchased and caused to
be transported and delivered at its facilities in the State
of Michigan goods and materials valued in the excess of
$1 million which were transported and delivered to its
Michigan facilities directly from points located outside
the State of Michigan. The complaint alleges, the answer
admits, and I find that the Employer is an employer en-
gaged in commerce within the meaning of Section
and (7) of the Act.
1130
11.
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orga-
2(5)
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1979,5
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conversations
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T HE LABOR ORGANIZATION INVOLVED all on other days, depending on his evaluation of the line
The complaint alleges, the answer admits, and I find
that Local International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, herein called the Union, is a labor
nizetion within the meaning of Section of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES~
A. FactsZ
F'rank Hammer was first employed as an assembler in
the rear axle assembly line at the Hammond plant of the
Employer in August 1977. Hammer was and is a member
of he Union, which represents, under contract, the em-
ployees at the Hammond plant.
after his employment on the rear axle assem-
bly line, Hammer began to time the speed of the line
with a stopwatch at various times when he felt
that the line was moving too When Hammer timed
the line in excess of the normal speed of 257 units per
he would call this to the attention of his supervisor
ask him to time the line. If they disagreed, Hammer
wculd call either Committeeman Art Dennis or

Committeeman
and they all participated in
tirring the line speed to resolve the matter. Hammer
that, in addition to his own line-timing activity, he
other employees when he felt that the line was
mcving too fast, sometimes by written note carried down
th t conveyor line itself, and he also advised them that
had the right to call a committeeman to ascertain
speed of the line.

:Shortly after Hammer's employment on the assembly

in October 1977, he was advised by his supervisor,
Foreman James Laino, and Foremen Steve
Horn and Harry Poe that they had enough problems on
line and did not appreciate him talking to other em-
ployees about how fast the line was going, and that, if he
a complaint about line speed, he should tell them or
committeeman.
some days Hammer either timed the line, o r caused
it to be timed, as many as three or four times, and not at
Par. of the complaint was amended at the hearing by stipulating the
allegations therein. Pars. 9. and I I were amended to cor-
rect the word "committee" to "committeeman."
There is conflicting testimony as to some of the relevant
In my view, the accounts related by Hammer and Union Alternate
Committeeman David when was present, represented the
accurate versions, and I have resolved testimonial conflicts in their
where discrepancies in the testimony appear. In reaching this and
other credibility conclusions herein, I have taken into consideration
apparent interests of the witnesses. In addition, I have considered the
interent probabilities, the probabilities in light of other events, corrobora-
tion o r the lack of it, and consistencies or inconsistencies in the testimony
of each witness and between the testimony of each and other witnesses
similar o r apparent interests. In evaluating the testimony of the wit-
I relied specifically on his or her demeanor and have made my
findings accordingly. and, while apart from considerations of demeanor I
h a t e taken into account the above-noted credibility considerations, my
fai ure to detail each of these is not to be deemed a failure on my part to
h a t e fully considered it. Bishop and d / b / a Walker's,
1161 (1966).

It appears that the normal speed for the line was 257 units (axles) per

hour with a full complement of employees and 208 units per hour when
employee complement of the line was reduced.
A committeeman roughly the equivalent of a shop steward.
speed. testified asked him to time
the line speed about two or three times a week, more
regularly than other employees. Respondent was aware
of Hammer's proclivity to time or have others time the
line speed. In February incident to an abortive
walkout of the axle line over the line speed,
Horn told that "didn't understand
Hammer was complaining about the line speed all the
time. You know, that there was problema with him
about that." Laino commented, with this cry
baby, always complaining about line speed."
On June 11, because of a high inventory, the number
of employees on the line was reduced and the line speed
reduced to 208 axles per hour. Hammer, however, felt
that the line speed was exceeding 208. He complained
about it, and, on June 20, put in a call for his committee-
man. responded and timed the line with a stop-
watch while Hammer observed. timed the line at
somewhere between 2 16 and 2 18 axles per hour and they
went to speak to Laino about it. Laino, who was timing
the line himself, shouted at Hammer saying, "You don't
know what the you are talking about." Shortly there-
after, a maintenance man was called and the line was
slowed
Later in the day on June 20, while on his break,
Hammer went to speak to the employee next to him
named Steve Brooks. Brooks was still working. While so
engaged, Horn, who was located some feet away, mo-
tioned to Hammer for Hammer to come to him.
Hammer, however, since he was on his break, continued
to talk to Brooks, whereupon Horn came over to the line
and accused Hammer of "soliciting" and told him to
leave the line. He did, removing himself to the rest area
nearby.
On June 21, the following day, Hammer again called
his committeeman with a request to time the line, which
he felt was running too fast. Again the line was timed by
It was slower than the previous day but still in
excess of 208, running at or about 212 axles per hour.
Laino came by and this information was given to him,
whereupon he became agitated, telling Hammer that he
did not know "what the hell he was talking about." He
also called Hammer an "ass-hole" and told him to go to
his office.
A meeting was thereafter held in Laino's and
was attended by Hammer, Laino, and Horn.
asked Horn if Hammer were being put on notice
for violating any shop rule and Laino replied that he was
not; however, Laino did tell him that "they were tired of
me, o r didn't want me going up and down the line talk-
ing to people about line speed, agitating." Hammer also
testified, "At that time it was mainly Jim Laino doing
the talking, he said that he had reports that I had intimi-
dated someone, and I remember asking who, and he said
that they wouldn't tell me, and that I had been calling
All dates refer to 1979 unless otherwise indicated.
T h e record discloses some discrepancies as to the dates on which this
and other took place. The dates set out herein appear to be
the more accurate. In any event, the precise dates are not essential to my
disposition of the allegations.
com~nitteeman
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8(a)(l)
1131 GENERAL MOTORS CORPORATION
the and he told me that because of this he
was to give me a special job assignment which
was my personal leave time: take that time in the
rest area, away from the line." Laino's recollection of
this con is that he did not tell Hammer not to
talk to anyone on the line during his break, but only that
he should not spend an excessive amount of his
time, 20 o r 25 minutes,' talking to working employ-
ees on line, and that he regarded this as interference
with the work of such employees. Horn's testimony was
to the that he advised Hammer that he should not
be the line for more than 5 minutes o r what-
ever, I feel that it distracts people on the line
when were working." Laino denied ever telling
Hammer that he could not talk o r take his break on the
line at all; however, as noted above, I credit Hammer's
version, which is substantially corroborated by
In another incident, while on his break on June 28,
Hammer engaged another employee, May Ann Frye, in
conversation. During this conversation, he was
proachecl by Horn, who told him to leave the line.
Hammer protested having to leave the line, but did so.
On following day, June 29, and once again while
on his relief time, Hammer was talking to employees
Frye Gerald Jameson while they were working.
Foreman Herb approached and told him that
he was interrupting the work of those two employees
and told him to move away from the line, reminding him
of his instructions." did not explain, even
when what constituted the interference, but pro-
ceeded to put Hammer on disciplinary notice when he
refused move. Hammer returned to work thereafter
and later in the day was called to the office. was
present was Horn and another foreman, Dick
who was substituting for Laino. was not
there. During this meeting, Hammer was accused by
Horn of soliciting committeeman calls among the em-
ployees interfering with their work. Hammer testi-
fied, "In that particular interview Steve Horn did most
of the talking and when I went in there he mentioned
several times the reason I was in the office was I am so-
liciting committeeman calls, that I had been going up
and down and talking to people about line speed and
horse like that, that I had been bothering people,
that I had been interfering with employees and causing
repairs, and when I asked him how was that, he said it
wasn't the people who I was talking to that was causing
the work but other people on the line, and he ex-
plained other people were always interested in what
Frank had to say and how it was distracting
them and causing them to make repairs." Hammer was
told that he was being issued a notice of formal repri-
mand Exh. 8) for violations of shop rule
not testify, but Horn testified that, while the
was issued by him, it was done in error, under
the wrong shop rule, and was subsequently canceled.
Assembly line employees one work break in the morning and
another in tt e afternoon, each for 22 minutes.
There are 42 chop rules Enh. 4). Rule reads: "Refusal or
failure to dr job assignment. ( D o the work assigned to you and follow
instructions; any complaint may be taken up later through the regular
channels.)"
Horn testified to telling Hammer that extended time
spent talking to working employees, "anything over 5
minutes," was too long and that this caused the working
employees not to give full attention to their work and
caused unnecessary repairs in work on the line. Howev-
er, as noted above, I credit Hammer's version of this
meeting.
The next series of incidents involving Hammer oc-
curred on July 10. On this day, upon being relieved for
his break, Hammer went over to the work station occu-
pied by the repairman, Tom Brohl, to show him a news-
paper article concerning the descent of Just
after Hammer had given the newspaper to Brohl, Laino
took the newspaper commenting to Hammer,
you suppose to be on some kind of job assignment?"
Brohl corroborated Laino's reference to a job assignment
testifying, "Something about a job assignment. He
wanted him off the main line during his break time."
While most of this incident is not in dispute, Laino's ac-
count does not allude to any ''job assignment." Howev-
er, as noted earlier, I credit Hammer's corroborated ver-
sion of this conversation. It is undisputed that Hammer
refused to leave the line even when ordered to d o so by
Laino. At the disciplinary interview which followed, he
was issued a "Notice of Disciplinary Action" for viola-
tion of shop rule 15 which reads: "Refusal to obey
orders of foreman or other supervision." Hammer was
told by Laino at the disciplinary interview that Hammer
was an instigator, that Laino was afraid that Hammer
would interfere with Brohl's work and would thus cause
repairs, and that this was the reason for the discipline.
The discipline imposed was, in substance, suspension
without pay for the balance of the shift on July 10 and
the entire following day.
B. Analysis and Recommendations
The General Counsel contends that Hammer was en-
gaged in protected concerted activities in soliciting and
encouraging employee grievances and committeeman
calls and instigating employee concern over the speed of
the assembly line; and that the disciplinary measures
taken against Hammer, as set out individually in the
complaint, were designed to discourage him from engag-
ing in such activity, all in violation of Section and
(3) of the Act.
Respondent contends that whatever disciplinary action
may have been imposed was not to discourage any
lawful activity on Hammer's part, but to prevent him
from interfering with the work of other employees
through extended conversations with them, and to pre-
vent the repairs that such interference would generate on
the assembly line.
A review of the record herein makes it clear that
Hammer was most active and vocal in his effort to main-
tain what he regarded as a proper speed for the assembly
line. It is equally clear that he was active in encouraging
other employees to protest the speed of the line. Respon-
dent acknowledges that it was aware of Hammer's con-
cern and his efforts to reduce the line speed when he felt
that it was going too fast. However, Respondent denies
that Hammer was given any special instructions for the
only
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1132
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of inhibiting such activity among other employ-
ees by keeping Hammer away from the assembly line
during breaks.
Examination of the record discloses, however, that not
was Respondent aware of Hammer's line-speed con-
cern and activity, but, as set forth above in some detail,
it irritated by these activities. The credited testimo-
ny concerning the incidents on and prior to June 20 and
a serious antipathy towards Hammer's activ-
ity in connection with the line speed.
Respondent concedes that it was aware of Hammer's
vigilance in connection with the line speed, but asserts
that this was not the basis for any reprimand or disciplin-
ary action taken against him. Respondent also concedes
there were no rules prohibiting employees on break
talking to other employees who were at work on
the assembly line. N o rule required employees on break
to the designated break areas. In fact, the record
it clear that it was commonplace for employees on
to converse with working employees; however,
Respondent argues that it did not condone excessive
o n the assembly line to the point where it con-
stituted interference with the work of other employees
because such interference resulted in repairs due to the
inattention of the working employees. Respondent's posi-
tion is that its actions against Hammer were prompted by
his abuse of the privilege of conversation on the line.
the evidence discloses that such was not the
addition to the evidentiary support provided by
20 and 21 events, the statements made by Respon-
dent's supervisors on those days constitute direct evi-
dence that Respondent was seriously disenchanted with
and that a special instruction o r order was
given to him in order to keep him away from the
line. In this regard, Laino's remarks during the disciplin-
ary interview on June 21 show both that a special in-
struction was in fact issued to Hammer and that Ham-
mer's involvement of other employees in his concern
over the line speed prompted the special instruction.
Respondent also offers statistics, presumably to show
that repairs were being generated on the assembly line
which were related to excessive conversations on the
line. (Resp. Exh. However, these statistics
a steady monthly decline in the percentage of re-
pairs on the rear axle assembly line throughout the time
period in issue, decreasing from 7.49 percent in March
to 5.49 percent in August 1979.
summary, I conclude that Respondent issued a spe-
cial instruction to Hammer to remove him from the as-
sembly line and that this instruction was motivated by
Respondent's desire to discourage Hammer from solicit-
ing and encouraging the involvement of other employees
in matter of line speed in violation of Section
and (3) of the Act.
respect to the June 29 disciplinary action, it ap-
pears that, on the previous day, Hammer had once again
ordered off the assembly line by Horn while con-
versing with another employee. On June 29, while on his
and engaged in a conversation with two other
working on the line, he was approached by Me-
who, in ordering him off the assembly line, al-
luded to his job "instructions." In the disciplinary meet-
ing held thereafter, Horn made certain remarks, as set
out above, which make it clear that the disciplinary
action imposed was related to Hammer's encouragement
of assembly line employees t o protest the speed of the as-
sembly line. While Respondent attempted to show that
Hammer was unduly interfering with the work of other
employees, I d o not find this explanation persuasive in
light of the direct and compelling evidence that the disci-
plinary action, to wit, the written reprimand, was
minatorily motivated.
The written reprimand cites only a violation of "Shop
Rule Number refusing a job assignment. Respondent
states that the reprimand was later rescinded; however,
without again reciting the credited testimony concerning
this incident, the remarks of and Horn, as well
as the written reprimand itself, establish quite conclusive-
ly that Hammer was issued the reprimand on June 29
pursuant to enforcement of the previously issued illegal
special instruction removing Hammer from the line
during his relief time. Simply stated, Respondent's at-
tempt on June 29 to enforce this unlawfully imposed spe-
cial instruction was itself an unlawful disciplinary action
violative of Section and (3) of the Act.
Finally, as to Hammer's layoff on July 10, the record
discloses still another effort by Respondent to enforce
the unlawful special instruction or assignment to keep
Hammer off the assembly line during relief periods.
Laino's reference to Hammer's "job assignment" when
he approached Hammer supports this conclusion. Re-
spondent, however, again attempted to justify its action,
taking the position that Hammer was interfering with the
work of another employee which could generate repairs
as to the product, particularly since was a repair-
man and his failure to notice items in need of repair on
the assembly line would adversely affect production.
However, it appears that the repairmen were free, as
were the other line employees, to talk on the assembly .
line while working, and there was nothing extraordinary
in Hammer's contacts with the repairman so as to war-
rant disciplinary action.
The written reprimand itself recites a violation of shop
rule 15, refusing to obey a direct order. Hammer did dis-
obey a direct order; however, in view of my finding
herein that the order pursuant to which the disciplinary
action was taken was unlawful, Hammer's refusal to
accede to it was therefore privileged. In summary, the
gravamen of the evidence shows that the basis of the un-
derlying motivation for the disciplinary layoff of July 10
was the unlawfully motivated original instruction to
Hammer not to take his breaktime on the line. Accord-
ingly, the disciplinary layoff on July 10 administered
pursuant thereto violated Section and (3) of the
In evaluating the testimony herein, I have given full consideration to
the Healthy test of causality as to the aspects of this case. Mt.
Healthy County District of Education v. Doyle, 429 U.S.274
and the criteria established pursuant thereto by the Board (Wright
Line. A Division of Line. 251 NLRB 1083 (1980)). conclude
that the General Counsel has made a prima facie showing that the pro-
tected conduct was a motivating factor in Respondent's decision to
Continued
UNFAIR
111,
occi~rring
dttscribed
iound
cease
Flank
8(a)(3)
recommenlj
pay dis-
criminatio~~ backpay
wi.:h
p..escribed E W. Woolworrh
(1950),
65: (1977).1°
Respmdent
2(6)
909,
A:rospace
2(5)
8(a)(l)
I-1/2-day
8(a)(3)
lhe 10(c)
'
Itespondent,
ndichigan,
ol'demonstrating
wen
l o Isis & Co., 138
I ' Sec.
a ~ ~ d
1.
afirmative
backpay
Sec.
l 2 IS
1133 GENERAL MOTORS CORPORATION
IV. THE EFFECT OF THE LABOR PRACTICES

UPON COMMERCE

The activities of Respondent set forth in section
above, in connection with Respondent's oper-
ations as in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having that Respondent has engaged in, and is
engaging in, unfair labor practices, I shall recommend
that it and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the
Act. I have found that Respondent disciplined and sus-
pended Hammer for reasons which offend the
provisions of Section of the Act. I shall therefore
that Respondent make him whole for any
loss of he may have suffered as a result of the
practiced against him, the provided
herein interest thereon to be computed in the
manner in Company, 90
NLRB 289 and Florida Steel Corporation, 231
NLRB
1. is an employer engaged in commerce
within the meaning of Section and (7) of the Act.
2. Local International Union of United Auto-
mobile, and Agricultural Implement Workers
of America, UAW, is a labor organization within the
meaning of Section of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in, and is engaging
in, unfair abor practices proscribed by Section of
the Act.
4. By unlawfully issuing special instructions, a written
reprimand, and a suspension to Frank
Hammer, Respondent engaged in unfair labor practices
within the meaning of Section of the Act.
Upon the foregoing findings of fact, conclusions of
law, and entire record, and pursuant to Section
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER
The General Motors Corporation,
Warren, its officers, agents, successors, and as-
signs, shall:
minister the disciplinary action it took and that Respondent has not met
its burden that the same disciplinary action would have
taken place in the absence of the protected conduct.
See, generally, Plumbing Hearing NLRB 716 (1962).
In the event no exceptions are filed as provided by 102.46 of
the Rules Regulations of the National Labor Relations Board, the
Cease and desist from:
(a) Issuing special instructions to employees to take
breaktimes in designated rest areas to discourage employ-
ees from soliciting or encouraging other employee griev-
ances and committeeman calls and instigating employee
concern over the speed of the assembly line.
(b) Issuing written reprimands to employees to dis-
courage employees from soliciting and encouraging other
employee grievances and committeeman calls and insti-
gating employee concern over the speed of the assembly
line.
(c) Suspending employees for encouraging employee
grievances and committeeman calls and instigating em-
ployee concern over the speed of the assembly line.
(d) In any like o r related manner intefering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following action which I find
necessary to effectuate the policies of the Act:
(a) Expunge and remove from its records any refer-
ence to the special job instructions given to Frank
Hammer on June 21, 1979, the written reprimand given
to Frank Hammer on June 29, 1979, and the disciplinary
layoff given to Frank Hammer on July 10, 1979.
(b) Make Frank Hammer whole for any loss of pay he
might have suffered as a result of the discrimination
practiced against him in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of due
herein.
(d) Post at its facilities in Warren, Michigan, copies of
the attached notice marked "Appendix." Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by
Respondent for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, o r covered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
findings, conclusions, and recommended Order herein shall, as provided
in 102.48 o f 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.
In the event that this Order enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."