Vought Corp.

National Labor Relations Board - Board Decisions

Aug 18, 1976

225 N.L.R.B. 975 (N.L.R.B. 1976)

VOUGHT CORPORATION, MICHIGAN DIVISION 975
Vought Corporation , Michigan Division and Walter S.
Halushka. Case 7-CA-12458
August 18, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On May 21, 1976, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed
counter-exceptions, an answer, and briefs in support
thereof.
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 at-
tached 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed.
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 ( 1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On November
3, 1975, Walter S. Halushka filed with the Regional Direc-
tor for Region 7 of the National Labor Relations Board,
hereinafter called the Board, a charge alleging that LTV
Aerospace Corporation violated Section 8(a)(1) and (3) of
the Act by reprimanding and suspending Halushka and
restricting him in the exercise of his role as a shop steward
or union officer. On December 23, 1975, the Acting Re-
gional Director issued a complaint and notice of hearing
alleging that Michigan Division-LTV Aerospace Corpo-
ration violated Section 8(a)(1) and (3) of the Act by repri-
manding and suspending Halushka for filing grievances
and engaging in concerted protected activities. By its duly
filed answer LTV Aerospace Corporation Michigan Divi-
sion alleged that its name was now changed to Vought
Corporation, Michigan Division, admitted the jurisdic-
tional allegations , but denied the commission of any unfair
labor practices . On the issues thus joined the matter came
on for hearing before me on March 22 and 23, 1976. All
parties were present and Respondent and General Counsel
were represented by counsel. All parties had an opportuni-
ty to call and examine witnesses and to adduce relevant
and material evidence.
On the entire record in this case and in consideration of
oral argument by both the General Counsel and Respon-
dent and a brief submitted by Respondent, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Michigan Division-LTV Aerospace Corporation, here-
in called Respondent , is a Delaware corporation licensed
to do business in the State of Michigan , where it is engaged
in the manufacture , sale, and distribution of Lance missiles
at the city of Warren, Michigan. Respondent annually real-
izes gross revenue in excess of $1 million and purchases
goods and materials valued in excess of $50,000 which are
delivered to its Warren plant directly from points located
outside the State of Michigan.
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Local 809, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, (UAW), herein
called the Union, is a labor organization with the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Walter Halushka, the Charging Party herein, is em-
ployed by Respondent as a first grade tooling machinist.
He is the financial secretary-treasurer of the Union.
As a union officer , Halushka was permitted to be ex-
cused from his work for varying periods of time to engage
in union business and in order to do this clocked out and in
again when he returned from union business.
Under the terms of the union contract employees who
wish to file grievances have the right to ask their immediate
supervisor to provide a shop steward with whom to file the
grievance During the year 1975, Halushka filed 17 such
grievances, 13 of them complaining about the distribution
of overtime, an issue with which he was apparently at odds
with other union officers and with Respondent. All of the
overtime grievances had been rejected by the Respondent
and the Union had not carried them forward with the ex-
ception of one. Halushka had appealed to the International
225 NLRB No. 142
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union to reinstate the grievances . The record does not re-
veal the position taken by the International ; however the
union president thereafter asked the Respondent to rein-
state the grievances which had been rejected . Respondent
declined under the terms of the contract to do so.
According to the testimony of the supervisor of both
tooling and the cutter grinding room , Badarak , because
part of the reason for Halushka 's grievances was that there
was more overtime in the cutter grinding department which
is separate from the toolroom in which Halushka normally
worked , he was assigned on a temporary basis to the cut-
ter-grinder room . The cutter-grinder room is apparently
understaffed and normally one employee from the tool-
room is assigned to that place . According to the testimony
of Foreman Fuchs, which I credit in this regard , employees
assigned to the cutter -grinder room are not supervised by
the toolroom foreman unless they are doing toolroom jobs
which have been assigned them either because there was
too much work in the toolroom or because there was too
little work in the cutter-grinder room.'
After Halushka had been assigned to the cutter-grinder
room he was given a job shaping a certain type of pin to
specifications . This job consisted of 36 pieces and it took
him about 80 hours to perform it. While he was working on
this job under the supervision of Badarak and the cutter-
grinder room leadman, Fuchs went on vacation and his
place was taken by the Night Forman Harmon. After
Fuchs went on vacation , on July 8, another order of 22
pieces of the same type of pin was assigned to Halushka.
On July 15 having spent approximately 29 hours working
on the job he was continuing to work on it when Harmon
came to him between 7:30 and 8 in the morning. As soon
as Halushka saw Harmon he asked for a steward . Accord-
ing to his testimony Harmon answered , "I'm going to get
you-." Halushka asked him how he was going to do that
and Harmon answered in effect that he would think of
something . Later that morning Harmon and Badarak came
over to see Halushka and checked his work . Harmon told
Halushka that he was going to give him a white slip which
is the plant expression for a warning slip and he asked if
Halushka would sign it. Halushka said that he would not
sign it and he wanted to see his steward . He was permitted
to do so and filed the second grievance of the morning.2
Later that afternoon according to Halushka , Harmon
again addressed him and asked him what was taking so
long with the work he was doing. Halushka tried to explain
the various problems he was having with the job and, ac-
cording to his testimony , Harmon threatened that he
would not be around much longer . According to
Halushka's testimony throughout July 15 and 16 Harmon
was continually watching him, checking his work, and
complaining about his slow progress . About noon on July
16 Halushka told Harmon he wanted to see his steward
and file a grievance that he was being harassed. The stew-
ard was called and the grievance was filed . About 3 p.m.
on July 16 Harmon and Badarak returned to Halushka's
' It appears that both rooms had the appropriate tools for many of the
jobs assigned to either
2 The first grievance had to do with the assignment of overtime on the
weekend preceding July 15
machine and checked the work together . They picked up
the blueprints and went back to Badarak ' s office . Accord-
ing to Halushka's testimony , about 2:30 on July 16 Halush-
ka asked Badarak to speak to Harmon about harassing
him. At this time Badarak told Halushka that he was con-
cerned about the time that was being used up and Halush-
ka answered that a man from the engineering department,
Mr. Hair , had told him there were no time estimates on the
job or that the time had not been used up. Badarak at that
time told him that there were something like 60 hours allo-
cated to the job and said that he would have a talk with
Harmon about bothering Halushka at his work.
Just before quitting time Harmon returned to Halushka
and told him that he was issuing another white slip for
misuse of company time with a 1-day suspension to be
served on the following day. Halushka asked for a steward
and Harmon said that he knew Halushka would do so and
another grievance was filed . After the suspension Halushka
returned to the job and after other delays caused by union
business and his vacation completed the job in something
over 60 hours.
According to the testimony of Badarak , the particular
job in question had always been done by the cutter-grinder
room under an engineering contract . The job of 22 pins
that gave rise to the instant situation was the first "produc-
tion" job on that particular type of pin . The production job
had been sent to the toolroom whereas the engineering jobs
which are charged to research and development had al-
ways been sent to the cutter -grinder room . For this reason,
according to Badarek the supervision of Halushka was un-
dertaken by Harmon since it was a toolroom job , rather
than directly by Badarek as would have been the case had
it been and R and D job.
Harmon denied that he stated on the morning of July
15 anything to the effect that he was going to get Mr. Ha-
lushka. He testified that the grievance Halushka wanted to
file at that time had nothing to do with him because he had
not posted the overtime and that his name would go on the
grievance only because he was the then current supervisor
of Halushka . He testified further that he was used to griev-
ances being filed and they arouse no rancor in him.
Harmon further testified that he was disturbed by the
slow pace at which Halushka was working when he gave
him the first white slip. According to his computation, the
job should have been finished by that time and it was less
than half done. When he continued checking because the
job was not being done fast enough , it appeared to him
that Halushka was slowing down rather than speeding up
on the work and when he had still not completed half the
job at the close of business on July 16 he determined to
give him a second warning notice and a suspension of I
day for wasting the Company 's time. He denied that the
filing of grievances had anything to do with his determina-
tion to give the suspension or the warning notices.
Discussion and Conclusions
Although most of the time at the hearing was spent in
litigating whether or not Harmon was justified in his stated
belief that Halushka was wasting time in the fabrication of
the 22 pins , the sole issue before me is whether the real
VOUGHT CORPORATION, MICHIGAN DIVISION 977
reason for the white slips and the 1-day suspension was
Respondent's pique at the filing of grievances by Halush-
ka. The General Counsel relies heavily on the testimony of
Halushka, supported by that of another employee, that
when he asked to file the first grievance on July 15 Har-
mon said that he was going to get him. It is interesting that
neither of the grievances filed by Halushka alleging that he
was being harassed by Harmon make any mention of this
statement nor does the initial affidavit taken by a Board
agent after the filing of a charge. It was only when a second
affidavit was taken, after an affidavit was taken from Carl
Luttrell, Jr., which stated that Harmon had made this
statement that Halushka recounted this incident. It is in-
conceivable to me that Halushka would not have men-
tioned this incident to either his shop steward or to the
Board agent on the occasion of the taking of the affidavit
and it is difficult to believe that a Board agent so informed
would not have included it in the affidavit. No adequate
explanation is offered by Halushka for his failure to have
recounted or recalled this incident prior to December 1975,
when the second affidavit was taken.
I find Halushka's testimony unsatisfactory in many re-
gards On cross-examination he appeared at times to be
evasive and was at all times strongly influenced by his
sense of grievance. On the other hand, I found Harmon
evasive on cross-examination and his testimony is directly
contradicted by that of Fuchs and sometimes by that of
Badarek.
With regard to the job that was done on the pins, the
records of Respondent show that another mechanic, Wen-
chovsky, ran 40 identical pins in January 1974 and took
approximately 50 hours to do it. Halushka himself had
done 36 in about 80 hours previously. John Delmotte cred-
ibly testified that he had worked on such pins a number of
times and he would estimate that 22 pins would take from
44 to 66 hours because he estimated 2 to 3 hours a piece.
The 22 pins in fact took over 60 hours. Respondent appar-
ently keeps records of the time spent on all of these jobs.
The records are kept differently for production jobs and
for research and development orders. Also it appears that
the pressure to produce is greater on production jobs.
Badarek testified that he had computed that the 22 pins
should take 35 hours. He also testified that Harmon had
computed the job when it was first assigned to the tool-
room and estimated 35 hours. However , Harmon testified
that he did not estimate the amount of time the job should
take until after the morning of July 15 when he had a "gut
reaction" that it was taking too long.
The evidence as a whole with regard to the job is con-
fused and inconclusive but it is enough to say that
Harmon 's complaint is not so far out of line that it gives
rise to an inference that he gave the white slips and the
suspension for discriminatory reasons. Nor on the other
hand does it appear that the time spent was so intolerably
long that it gives rise to an inference that the warning slips
are Justified , as was found by the court in D.C. Internation-
al, Inc. v. N.L.R. B., 385 F2d 215 (C.A. 6, 1964) cited by
Respondent.
As I have indicated I was not impressed with the credi-
bility of the witnesses offered by the General Counsel other
than Mr. Delmotte nor by Respondent other than Fore-
man Fuchs . Neither Delmotte nor Fuchs had direct evi-
dence to offer with regard to the incidents which we are
here concerned . Under these circumstances, I cannot see
that either the inference suggested to me by the Respon-
dent that the sanctions it imposed were justified or by the
General Counsel that they were discriminatory are strong
enough to prevail.
ORDERS
Accordingly, I shall recommend that the charge in the
instant case be dismissed because I cannot find by a pre-
ponderance of the evidence that the allegations of discrimi-
nation and interference, coercion, and restraint are sup-
ported. I so recommend.
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