AHI Machine Tool and Die, Inc. v. NLRB, 19672.

• Decision Date: 07 October 1970
• Docket Number: No. 19672.,19672.
• Citation: 432 F.2d 190
• Parties: AHI MACHINE TOOL AND DIE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

432 F.2d 190 (1970)

AHI MACHINE TOOL AND DIE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervenor.

No. 19672.

United States Court of Appeals, Sixth Circuit.

October 7, 1970.

Timothy K. Carroll, Detroit, Mich., for petitioner; Dykema, Wheat, Spencer, Goodnow and Trigg, Detroit, Mich., on brief.

Roger L. Sabo, Atty., N. L. R. B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, John D. Burgoyne, Atty., N. L. R. B., Washington, D. C., on brief.

Stanley Lubin, Detroit, Mich., for intervenor.

Before CELEBREZZE and PECK, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

Petitioner, AHI Machine Tool & Die, Inc., seeks review, and National Labor Relations Board asks enforcement, of an order of the Board, which found AHI Machine Tool & Die guilty of violating Section 8(a) (1) of the National Labor Relations Act, Title 29 USC § 158(a) (1). The Decision and Order are reported in 176 NLRB 57 (1969). The Board supported its trial examiner, who found that AHI had interfered with the right of four of its employees to engage in "concerted activities" protected by Section 7 of the Act by "constructively" discharging such employees. These four employees had walked off their jobs following — and allegedly to protest — the discharge of one of their fellow employees who had just assaulted a company foreman. The Board's order commands reinstatement of the alleged discriminatees, with back pay. We are of the view that the record does not contain substantial evidence that the alleged discriminatees were engaged in a protected activity when they walked off their jobs, or that they were discharged, or that they were denied re-employment.¹

We deny enforcement.

I. The Alleged Protected Activity.

AHI Machine Tool & Die, Inc., located in the environs of Mt. Clemens, Michigan, manufactures and sells tools and dies for industrial use. In March of 1968, the shop employed about fifty people, approximately twenty of whom were engaged in the tool and die department. The workmen in this department — toolmakers, diemakers, die sinkers and others — are known as the most highly skilled mechanics in industrial production. They are generally in short supply, and in much demand. That they enjoy such status and the independence it gives them is recognized. In the relevant period, the shop was busy, operating at a 58 hour week. The alleged discriminatees, Emerick, Cartwright, Osterman and Theriault, all employed in the tool and die department, were good friends of each other and of their fellow diemaker Virgil Jolly. On the morning of March 18, 1968, Louis Hypnar, described by management as a leader, but found by the Board to be a foreman, accused Jolly of "goofing off" at his job. Virgil, a much larger and younger man than Hypnar, knocked him to the ground. In testimony of the alleged discriminatees and in the trial examiner's decision, the violence of the assault is sought to be meliorated by stating that "Jolly grabbed Hypnar by the shirt and pushed the latter over a set of workhorses." However, an obviously unplanned and spontaneous observation by one of the General Counsel's witnesses, gave a more accurate description of the assault. This witness, one of the dischargees, told how men in the department went quickly to the scene and "grabbed ahold of Jolly the aggressor to keep him from doing anything else" and then,

"* * * Mr. Jolly wanted to take another poke at him but we were holding onto him, so he couldn\'t so then he calmed down a little and went over and started putting his tools away."

We are satisfied that the supervisor was not merely "touched" or "pushed". He was knocked over the workhorses by Jolly's blow. It is indeed a fair inference that Mr. Jolly was irritated by Mr. Hypnar's suggestion, when he found Jolly away from his own bench, that Jolly was "goofing off". But such irritation did not, in our view, warrant the assault upon Hypnar.

An interesting sidelight on the affair was Jolly's later explanation that his irritation was enhanced by his then nursing of a post-St. Patrick's Day "hangover". The assault was on March 18, the day after St. Patrick's Day.² Dale J. Smith, president of AHI, told that some days after March 18 he saw Jolly in the plant and inquired about the fracas, asking Jolly, "What's the matter with you?" Jolly replied, "Well, I was disgusted and celebrating St. Patrick's Day and Monday morning was tough, and Louis Hypnar said a few things to me and I didn't like it * * * and I just hit him." Upon Smith's suggestion that he thought Jolly should apologize, Jolly did walk over, shake hands with Hypnar and apologize. This testimony stood undenied. No mention was made of the foregoing in the trial examiner's findings. We mention it to support our view that it has taken not a little straining to make AHI the culprit in what happened on March 18 and the days that followed.

Much is made of Hypnar's reaction to what happened to him. He quickly responded by telling Jolly that he was fired and to get his tools and get out. Whether or not Hypnar had the authority to fire Jolly, his conduct was a natural reaction to the assault, as was his answer to the suggestion of an employee, Jernberg, (a so-called leader, and in no way involved in the relevant activities) that they go in and talk it over with management. The examiner's findings suggest that among the reasons that prompted the four diemakers to walk out was that "Hypnar refused to permit the men a hearing when he refused Jernberg's suggestion that the men take their case to higher management." There is no suggestion in the evidence that the four alleged discriminatees desired, at that moment or at any other time, to "take their case to higher management." They had never complained of Hypnar before Jolly's assault on him, nor did they thereafter, although all of them were in the plant and in the presence of management on several occasions after they had walked out.

The trial examiner's opinion contains the following:

"The record further establishes that the men were unhappy with Hypnar\'s conduct for some time and that the Jolly incident was the explosion that resulted from what the men considered the constant harassment visited upon them by Hypnar."

and also that:

"In any event in the case at bar the striking of Hypnar by Jolly and the latter\'s discharge were but the culmination of a series of disagreeable events." (Emphasis supplied.)

These assertions are without evidentiary support. The trial examiner does not point out proofs of the "constant harassment" or "disagreeable events." Neither does he point to evidence from which they could be justifiably inferred. Certainly the day-to-day irritations that may be the product of a foreman's attempt to meet his responsibilities cannot be magnified into such inferences. It is understandable that diesinkers and diemakers, the much in demand aristocrats of the shop, do not accept easily criticism of their work or conduct. We set out below the total and only evidence of irritations caused by Hypnar's conduct as a supervisor. They do not add up to the "constant harassment" and the "disagreeable events" found by the trial examiner to have resulted in a walkout protected by Section 7 of the Act as "concerted activity."

William E. Emerick, an activist in the walkout, told of Hypnar, who was himself a skilled diemaker with long experience, being meticulous in overseeing the work of others:

"Well, if there was a couple of different ways of performing the job, why he Hypnar would tell me how he wanted it done, and especially in the die tryout, why, he would oversee the work there."

Emerick further testified:

"Q. Have there been any incidents in which he Hypnar has actually commented directly upon your work?

"A. Yes, a number of times he complimented me on doing a good job.

"Q. Has he ever criticized you for your work?

"A. No, not to my knowledge."

Emerick told of Hypnar scolding him for being late for work and leaving ahead of time, "on two different occasions he got on my back because I washed up a little early, and on two other occasions he got on me again because I was coming in late and a number of times it was for leaving early." The witness did not claim that he was not guilty of the infractions that prompted Hypnar's remarks. His fellow diemakers said that Hypnar usually opened the shop in the morning and was the last to leave at night. Emerick also apparently resented Hypnar's action in the redoing of a part that had become warped.

"* * * so we put them back into the press and at that time I felt I knew what I was doing because I had already done it once. And Mr. Hypnar would not let me go ahead and do it as I saw fit. He definitely told me what to do, every move to make, which was a great deal of the reason for the dissention between Mr. Hypnar and myself." (Emphasis supplied.)

On the morning of Jolly's assault on Hypnar, Emerick told of Hypnar looking over the part Emerick was working on and "said he felt I was making progess." At that point, Emerick asked for, and got, Hypnar's approval to leave work early that day.

Another of the alleged discriminatees, Richard Cartwright, gave this description of his unhappiness with Hypnar. Referring to his second period of employment with the company, which began January 8, 1968, he said:

"It was the very second day — and I happened to be eleven minutes late that morning and he bawled me out for being late and I said, `Look, its only eleven minutes\' and he said, `Well I don\'t care. I\'ve got six thousand hours I\'ve got to get done here, and you guys come in late and you want to leave early, and everything.\' And I said, `Well, Louis, I can see you and I are never going to get along.\'" (Emphasis

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