Detroit Diesel Allison Division

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Detroit Diesel Allison Division, General Motors Corporation and Michael L. Aldridge G2and G1 Marvin L. Newland Local 933, United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW and Michael L. Aldridge G2and G Marvin L. Newland. Cases 25-CA-10921, 10942, 25-CB- 3737, and 3746 May 19, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On February 14, 1980, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, Respondent Union filed a brief in support of the Administrative Law Judge's Decision, and Respondent Employer filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' 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, dismissed in its entirety. ' 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 re- spect to credibility 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 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: These consolidated cases were heard before me on November 19 and 20, 1979, at Indianapolis, Indiana, upon the Gen- eral Counsel's complaints which alleged, generally, that the Respondent Union, Local 933, United Automobile, Aerospace and Agricultural Implement Workers of 249 NLRB No. 89 America, UAW, caused the Respondent Employer, De- troit Diesel Allison Division, General Motors Corpora- tion, to transfer the two Charging Parties in violation of Sections 8(b)(1)(A), 8(b)(2), 8(a)(1), and 8(a)(3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq.' The Respondents each deny that they committed any violation of the Act. Upon the record as a whole, including my observation of the witnesses, the briefs and arguments of counsel, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent Employer is a Michigan corporation engaged at its Indianapolis, Indiana, facility in the manu- facture, sale, and distribution of internal combustion en- gines and related products. In connection with this oper- ation, the Employer annually sells finished products di- rectly to points outside the State of Indiana valued in excess of $50,000. The Employer also annually receives, directly from points outside the State of Indiana, goods and materials valued in excess of $50,000. All parties admit, and I find, that the Employer is an employer en- gaged in commerce within the meaning of Section (2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union, Local 933, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, UAW, is admitted by all parties to be, and I find it is, a labor organization within the meaning of Sec- tion 2(5) of the Act. Ill. THE LLEGED UNFAIR LABOR PRACTICES A. Background Facts For many years the Union has represented the Em- ployer's production and maintenance employees and has had a series of collective-bargaining agreements with the Employer, with local supplements. The collective-bar- gaining agreement in effect during the times material here was executed in 1976. At its Indianapolis facility, the Employer manufactures diesel engines. The total work force is undefined in the record, but under Manufacturing Superintendent Gary D. Coryell consists of approximately 435 hourly employ- ees, along with 35 foremen and 6 general foremen. In department 1560, the 149 diesel engine block is manufactured. After being tooled in department 1560 the blocks are sent either to the assembly department or to shipping to be sold as a spare part. Only a limited amount of block assembly is done in department 1560. One of the principal functions performed by employ- ees in department 1560 is the removal of burrs and other surface defects which apparently result from the drilling process. The job title of the individuals who perform this work is "burr and polish." According to the Employer's I An amendment to the complaint alleging the Union's unlawful failure to represent an employee was withdrawn at the hearing. DETROIT DIESEL ALLISON DIVISION 605 job description dated September 1971, a burr and polish employee: Burrs, buffs, polishes and blends ferrous and non- ferrous parts both before and after machining. Rea- sonably close tolerances and finishes must be main- tained. After a block has been finished, it is reviewed by an inspector. On a "Rework Traveler" the inspector makes notations of additional work required before the block is sent on assembly or shipping. Such rework might include redrilling of holes, buffing and polishing burrs, or clean- ing. Much of this postinspection work is done by salvage and rework mechanics whose general job description is: Sets up and operates a variety of machine tools on salvageable ferrous and non-ferrous parts, hold- ing close tolerance.2 In 1974, there arose a dispute on the night shift con- cerning whether the burr and polish work, after the block had been inspected, should be done by burr and polish employees or by salvage and rework mechanics. At that time, the zone committeeman,3 Charging Party Michael L. Aldridge, settled this grievance with the Company on the basis that all burr and polish work fol- lowing inspection of the block would be done by salvage and rework mechanics. When the settlement came to the attention of Jerry McLain, the zone committeeman for the day shift, he told Aldridge that Aldridge was wrong, that the burr and polish work should be performed by burr and polish employees even after inspection. McLain further stated that, if he ever got a chance to reverse the grievance settlement, he would do so. McLain testified that there was no problem with regard to who should do the work on the day shift, as burr and polish work was being done by burr and polish employees. Aldridge was defeated for reelection in 1977 and thus during the time of the events here was no longer an offi- cer in the Union. In June 1978, Aldridge transferred into department 1560 as a salvage and rework mechanic. He obtained this job pursuant to a grievance settlement which was han- dled by McLain. Apparently Aldridge had bid on and was improperly denied a job of salvage and rework me- chanic. Thus, not only was he assigned the job of sal- vage and rework mechanic in department 1560, but he received $1,400 to $1,500 in backpay. In any event, from June 1978 Aldridge worked in de- partment 1560 as a salvage and rework mechanic and, 2 Apparently there are salvage and rework mechanics in other depart- ments as well as department 1560. 3 Among the working officers of the Union are zone committeemen and district committeemen. Generally, the district committeeman is re- sponsible for representing people within his district, which normally con- sists of one or more departments, and participates with first-line manage- ment at the step-one level of any grievance. A zone committeeman is the next higher officer and has under his jurisdiction more than one district. The zone committeeman represents employees at what the Employer and the Union refer to as step one and a half of the grievance procedure, the level immediately above first-line supervision. Both the district and zone committeeman are elected by the Union's membership for terms of 3 years. pursuant to the 1974 grievance settlement, was, along with the other salvage and rework mechanics,doing post- inspection burr and polish work. Sometime in September 1978, as a result of some changes in the work force, the Union determined to combine two districts, one of which included department 1560. The two district committeemen then ran in a spe- cial election to determine who would be the district committeeman over the new district and David Fenwick, who had been the district committeeman in one of the districts, was elected. Prior to the election Fenwick had not had jurisdiction over department 1560. Sometime in October, Fenwick testified, he discovered that a substantial amount of burr and polish work in de- partment 1560 was being done by salvage and rework mechanics. He thus undertook to file a grievance dated October 31, 1978, wherein he alleged that management was in violation of "Demand Settlement #11. " 4 Fen- wick's grievance was denied at the first step and was then referred to the zone committeeman and higher man- agement. According to the testimony of Coryell, following his investigation he found that 40 to 70 percent of the work being done by salvage and rework mechanics was in fact burr and polish work and that, by accepting the griev- ance, the Employer could save a substantial amount of money on wages each year. The salvage and rework me- chanics are higher pay classification than burr and polish employees, although burr and polish is considered a de- sirable job. At the time the Union and the Employer settled this grievance, it was unknown precisely how many salvage and rework mechanics would be surplused in department 1560, though it was known that some would be. Thus, Coryell asked for 3 months in which to implement the change. By December, Coryell knew that approximately five salvage and rework mechanics in department 1560 would be surplused and would have to be transferred to other departments. From January through March 1979, five salvage and rework employees in department 1560 were transferred to other departments. The employees were selected for transfer by seniority, the newest salvage and rework em- ployees being chosen for transfer. These five include the Charging Parties here, Marvin L. Newland and Michael L. Aldridge. 4 During contract negotiations in 1976, the Union requested in "Demand #11": "THE UNION DEMANDS THAT ALL EMPLOY- EES BE ASSIGNED TO WORK THAT PROPERLY FALLS WITHIN THEIR CLASSIFICATION AT ALL TIMES," and as a result of the negotiations, the Union and the Employer agreed: During the 1976 negotiations the Union maintained there were nu- merous examples whereby large numbers of employees were regular- ly assigned work apart from their classification for periods of ex- treme durations. The Union claimed this condition created inequities for other employees in the matter of equalizing available overtime and shift preference and the like. Management assured the Union that it is not its intent to improper- ly classify employees. When improperly classified employees cause properly classified employees to be denied their contractual rights such employees will be reassigned or transferred under the provi- sions of the appropriate agreement 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Issues The essence of the General Counsel's theory in this matter is that Fenwick filed the grievance at the insis- tence of McLain in order to cause the transfer of Al- dridge out of department 1560 because Aldridge had made known his intention to run against McLain for zone committeeman or, in the alternative, McLain's "fac- tion." Therefore, contends the General Counsel, the Re- spondent Union violated Sections 8(b)(1)(A) and 8(b)(2) by interfering with an employee's protected right to engage in political union activity; that the Union at- tempted to cause the Employer to discriminate against an employee because of his union activity; and finally, the Employer, by sustaining the grievance and implementing it, which caused the transfer of Aldridge, violated Sec- tion 8(a)(3) and (1) of the Act. Since Newland was junior to Aldridge, in order to transfer Aldridge, Newland was also transferred, hence his transfer was also violative of the Act. (The General Counsel does not contend that the transfer of the others was unlawful.) It is also alleged that the Union failed to represent Aldridge and Newland in connection with grievances they had filed. C. Analysis Concluding Findings Where an agent of labor organization causes or at- tempts to cause an employer to discriminate against em- ployees in violation of Section 8(a)(3) of the Act, such is a violation of Section 8(b)(2). And where the union, through its agent, is motivated in its attempt to cause such discrimination because the employee has engaged in activity guaranteed by the Labor-Management Reporting and Disclosure Act (being a candidate and/or supporting candidate for union office), then the union has violated Sections 8(b)(2) and 8(b)(1)(A) of the Act. Carpenters Local Union No. 22, United Brotherhood of Carpenters and Joiners of America (William Graziano, d/b/a Graziano Construction Company), 195 NLRB 1 (1972). And, of course, where an employer in fact does discriminate against an employee because the union sought such dis- crimination, the employer violates Section 8(a)(3) and (1) of the Act. However, the General Counsel does have the burden of proving his allegations by preponderance of the credi- ble evidence. From my evaluation of the testimony, particularly considering both the demeanor of the witnesses and the inherent probability of the allegations herein, I conclude that the General Counsel failed to prove that Fenwick was motivated by an attempt to discriminate against Al- dridge when he filed the grievance on October 31; nor did the Union thereafter cause or attempt to cause the Employer to transfer or otherwise discriminate against Newland or Aldridge. Further, I believe from a preponderance of the credi- ble evidence that Fenwick filed the grievance on Octo- ber 31 because he felt that a substantial amount of work being performed by the salvage and rework mechanics was in fact the work of burr and polish employees; and that the Employer was in violation of Demand Settle- ment #11. It is noted that grievances under Demand Settlement #11 are not unusual. In fact, the unrebutted and general- ly credible testimony of Michael Holland, the Employ- er's general supervisor, industrial relations, is that since 1976 there have been 308 employee grievances alleging violations of the Demand Settlement #11. Of these 165 have been in plant #5, the location of department 1560; 25 such grievances have been in the department within Fenwick's jurisdiction, as district committeemen and Fenwick personally filed 7 of them. In addition, 28 such grievances were filed by committemen relating to jobs other than their own individual jobs. Thus, for Fenwick to file the grievance on October 31 is certainly not un- usual, and that fact raises no inference of an unlawful motivation on his part, or that of McLain or anybody else. The gravamen of the General Counsel's complaint is that the Union requested the transfer of Aldridge be- cause he sought "to run for election against an incum- bent for the position of Zone Committeeman." The prin- cipal proof rests on the testimony of Aldridge to the effect that Fenwick told him that McLain told Fenwick to file the grievance so that Aldridge would be trans- ferred out of department 1560 and thus would not be able then to run for zone committeman against McLain during the 1980 election. Fenwick denied he made such a statement to Aldridge or that Aldridge's political plans in any way affected his determination to file the grievance. I credit Fenwick (and the other of Respondents' witnesses where their tes- timony conflicts with Aldridge) and specifically discredit Aldridge. First, I found Aldridge's demeanor to be negative and generally his testimony to be unreliable. Second, Al- dridge testified specifically that the election for which he had announced and for which he contends that McLain sought to have him transferred was the general election in 1980, when Aldridge would be contesting for McLain's zone committeeman position, McLain having indicated he would run for president. Other witnesses for the General Counsel, however, including Newland, testi- fied that the election for which Aldridge was to be the candidate for zone committeeman was an election that was anticipated in the spring of 1979 when it was antici- pated that McLain would resign as zone committeeman. McLain had applied for several skill trade jobs, and, if awarded one, would have to resign. In fact, in the spring of 1979, McLain did accept a skill trade job and did resign as the zone committeeman. Aldridge's testimony about which election was so pre- cise, though inaccurate, that I cannot conclude it was an inadvertent error on his part. Rather, Aldridge's testimo- ny appears designed to show that, as a candidate for president, McLain would be heading a slate, hence, to run for zone committeeman would be tantamount to run- ning against McLain. Thus he testified, "McLain and I never talked personally together, where I said I was going to run against him; no." Given this, and his nega- tive demeanor, I conclude that his testimony of hearsay statements allegedly made to him by officers of the DETROIT DIESEL ALLISON DIVISION 607 Union, even absent denials,5 are not sufficiently trust- worthy to form a basis for finding a violation here. All of the direct evidence of unlawful motivation on the part of Fenwick and/or McLain was testified to by Aldridge and denied specifically by Foreman Ernest Vaughn, Fenwick, McLain, and Coryell. Although McLain admits to a fundamental difference of opinion between him and Aldridge concerning which classifica- tion should do postinspection burr and polish work, there is no evidence in the record to indicate why McLain would seek to have Aldridge or Newland trans- ferred out of plant #5. To the contrary, even though McLain and Aldridge had this difference of opinion dating back several years, it is noted that, as recently as the summer of 1978, McLain personally handled a griev- ance for Aldridge and was successful in netting Aldridge not only the job he wanted but also $1,400 to $1,500. Such certainly mitigates against any inference of general animosity on the part of McLain. Further, by the time McLain was supposed to have set in motion the chain of events leading to Aldridge's transfer, McLain had ap- plied for a skill trade job and foreseeably would not be a candidate for election in 1980. There is no showing that he had any interest in who would be elected to replace him or in any events of 1980 Thus, there really is no basis in this record to infer that McLain or any of the other officers of the Union had any particular reason to want to discriminate against Aldridge. Similarly, there is no evidence of any reason why any of the officers of the Union would discriminate against Newland other than Newland's testimony that he and Aldridge were political allies. And, as I conclude none of the officers of the Union sought to discriminate against Aldridge because he intended to be a candidate, it follows that Newland likewise was not discriminated against. The General Counsel seems to argue that the griev- ance was unmeritorious, thus to file it implies an unlaw- ful motivation on Fenwick's part. The evidence, howev- er, particularly the job descriptions, belies this conten- tion. And the grievance certainly appears arguable, not- withstanding that Aldridge, Newland, and others felt otherwise. That there was conversation among employ- ees and with Vaughn relating to the settlement of this I The only undenied testimony of Aldridge relates to zone committee- man Danny Pardue who, according to counsel for the Union, was on a hunting trip on the day of the hearing. Aldridge testified that, sometime in January 1979, Pardue told him that McLain was trying to move Al- dridge out. While such may be admissible because Pardue is an officer of the Union, although a low-level officer, given my evaluation of Al- dridge's general unreliability, I conclude that, while admissible, and un- denied, it is not sufficiently trustworthy to be relied on. grievance-and such is the real thrust of most of Al- dridge's testimony-does not imply a determination by union officers to "get" Aldridge, or a conspiracy be- tween the Union and the Employer. The General Counsel also contends that, even with granting the grievance, surplusing Aldridge was not nec- essary, thus such must have been done for a discrimina- tory reason. The Employer's records reveal a drop in production for the spring and summer of 1979 with an increase thereafter, as a result of which some of the sur- plused salvage and rework mechanics were returned to department 1560. Aldridge was not because he too ac- cepted a skill trade job. I find no basis to reject the Employer's documentary evidence, or the testimony of management personnel, that the surplusing of salvage and rework mechanics was caused by taking burr and polish work from them, and that there was an overall reduction in work available as a result of the schedule cutback. Finally, there is no evidence that Aldridge or New- land was in any way harmed by the temporary depart- ment transfers, or that such in any way inhibited his abil- ity to run for union office. Upon the record as a whole, I conclude that the Gen- eral Counsel has failed to establish that the Union was in any way motivated to cause discrimination against Al- dridge or Newland and I specifically conclude that none of the statements Aldridge testified to concerning McLain's attempt to have him transferred in fact oc- curred. I further conclude that the Employer did not dis- criminate against Aldridge or Newland and, finally, there is no evidence to support the ancillary allegations that the Union failed and refused fairly to process a grievance for Aldridge and Newland. In fact, the only grievances testified to were settled in favor of the grievants. There- fore, I will recommend that the complaint be dismissed in its entirety. Upon the foregoing findings of fact, conclusions of law, and the entire record in this matter, I hereby issue the following recommended: ORDER6 The complaint is dismissed in its entirety. I 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 find- ings, 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.