General Motors Corp.

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during bad weather; the Employer has the right to make trips on the vessels in the event of an emergency; the captains are required to de- liver all catches to the Employer; and in negotiations between the cap- tains and the Employer, the specific amounts of compensation for the various crewmembers as well as the captains are established .-3 Accord- ingly, we find, contrary to the Regional Director, that the captains are not independent contractors and the crewmembers are not their em- ployees but are employees of the Employer, and shall direct an election in a unit composed of them. We therefore find that a question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, and that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(c) of the Act: All crewmen employed on the whaling ships Lynn Ann and Sioux City, excluding the captains and all supervisors. [Text of Direction of Election omitted from publication.] 8 We also find the other cases cited by the Employer and Regional Director distinguish- able on their facts. Cadillac Motor Division, General Motors Corporation and Charles Mullen. ' Case No. 7-CA-4414. November 17, 1964 DECISION AND ORDER On April 21, 1964, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no. prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner as modified herein. 149 NLRB No. 79. CADILLAC MOTOR DIVISION, GENERAL MOTORS CORP. 745 The Trial Examiner found that shortly before employee Mullen's discharge, Respondent's supervisors Timmons, Porter, and Labbe dis- cussed Mullen's union activities at a "mysterious" meeting held in Tim- mons' office ,at 4 o'clock in the morning. The Trial Examiner further found that because these supervisors testified that their conversations on this subject were restricted to "one sentence conversations" and that their testimony in this regard was otherwise vague and reluctantly given, a suspicion was created that plant guards Porter and Labbe were instructed by their superior, Timmons, to spy upon Mullen's union efforts. We do not agree with this conclusion. Uncontroverted evidence in the record not alluded to by the Trial Examiner in his Decision shows that contemporaneously with Mullen's established dereliction of duties, for which he was subsequently dis- charged, Timmons was conducting an investigation into- a series of thefts from Respondent's plant. Undisputed evidence also establishes that during this phase of the investigation, Timmons had been working at all hours, that he had been informed that certain foremen were sus- pected of being involved in these thefts, that one of these suspects arrived for work between 6 and 6:30 a.m., and that Timmons called the 4 a.m. meeting with Porter and Labbe, both of whom were on guard duty, for the purpose of instructing them to ascertain the license num- ber and the occupants of the car driven by this suspect. In addition, the record does not clearly establish that Mullen's activities were in fact discussed at this meeting. Accordingly, in view of this uncontroverted, positive evidence in the record, and the absence of any evidence to support the Trial Examiner's suspicions, we cannot infer, as did the Trial Examiner, that the manner in which these witnesses testified raises any suspicion of impropriety or indicates that the Respondent otherwise engaged in, or may have en- gaged in, any unlawful activity as to Mullen. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on October 16, 1963, by Charles Mullen, an individual, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel 1 and the Board respectively , by the Regional Director for Region 10 (Detroit, Michigan ), issued his complaint dated December 31, 1963, against Cadillac Motor Division , General Motors Corporation, hereinafter called the Re- spondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2 (6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practice. Pursuant to notice a hearing was held thereon at Detroit, Michigan, on February 10, 11, 12, and 14, 1964, before Trial Examiner Thomas S. Wilson. All parties ap- peared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce, examine and cross-examine witnesses, to introduce evidence material and pertinent to the issues. Oral argument at the close of the hearing was waived. Briefs were received from General Counsel and Respondent on March 23, 1964. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT The complaint alleged, Respondent's answer admitted, "for the purpose of this proceeding only," and I find that General Motors Corporation is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware, and maintains plants in various States of the United States, including a Cadillac Motor Division plant located ' at Clark and Michigan Avenues in Detroit, Michigan, herein sometimes referred to as the Cadillac plant, where it manufactures automobiles and automotive parts and that in excess of $50,000 in value per annum of the raw materials and fabricated parts used at said Cadillac plant came from sources outside the State of Michigan and that in excess of $50,000 in value per annum of the completed products of said plant ultimately reached customers outside the State of Michigan. I find that Respondent is engaged in commerce within the meaning of the Act. H. THE UNIONS Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., and United Plant Guard Workers of America, are labor organizations admitting to membership employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts In September 1963, "Charles A. Mullen had been employed as a plant guard by Respondent for some 111/z years. His record over that period had been good, con- taining several commendations. - In 1960 the United Plant Guard Workers of America attempted to organize Re- spondent's plant guards. The instigator and the acknowledged leader of this union movement, as was well' known at the time to Respondent, was Mullen. The Union lost the election which resulted therefrom. In 1961 Mullen again discussed the prospect of another union organizing effort with that Union. The campaign did not develop. In July and August 1963,'Mullen and, a fellow plant guard named Presnell ap- proached Local 299 of the Teamsters Union with the idea of organizing Respondent's guards into that Union. Upon advice of counsel, Local 299 refused to proceed with the proposed organizing effort. This approach to the Teamsters was known to Respondent as well as the result thereof. Subsequently in August or September 1963, Mullen, after consultation with some of his fellow guards, again sought assistance of the Plant Guards Union to start an- other organizational drive among Respondent's guards. All of the above was well known to Respondent officials William J. Timmins, director of salaried personnel since November 1961, and prior to that director of plant security at the Cadillac plant, George S. Machesney, who succeeded Timmins as director of plant security, as well as to Lieutenant John M. Burg and Sergeants John H. Porter and Robert D. Labbe and the plant guards generally as Mullen made no effort to keep his activities along this line secret. It was known to one said all in the plant security force that Mullen was enthusiastically and energetically in, favor of 'union organization among the plant guards. Mullen openly and freely notified one and all as to the progress of his efforts. So far as this record shows Respondent made no objection or effort to hinder or stop Mullen's activities along this line. However, the evidence does show that Timmins kept Lieutenant Burg and Sergeants Porter and Labbe as well as Machesney informed of Mullen's efforts. In fact Timmins had a conversation with Porter and CADILLAC MOTOR DIVISION, GENERAL MOTORS CORP. 747 Labbe on this subject about 4 o'clock one morning in his office at the plant. This became somewhat mysterious when Respondent's witnesses, after reluctantly ad- mitting the event, could recall only that the subject of Mullen's activities had been mentioned.2 There is at least a suspicion that Porter and Labbe were ordered to "watch" Mullen during this conversation. Among other duties, the job of the plant patrolman or guard, such as Mullen, includes the inspection of all motor vehicles leaving the plant through the post to which the guard is assigned.3 Various parts of the numerous types of vehicles which passed through the post are inspected by the guards, visually or otherwise. The type of inspection varies according to the type of vehicle. The purpose of the inspection is, of course, to prevent the loss of Respondent's property. In addition the guards keep a paper log of the vehicles, the drivers, and the time of their entrance and exit. Although Respondent has provided its guards with some written instructions of a generalized nature on the method of inspection of the various types of vehicles which pass through the plant, new patrolmen learned the procedures in large part through osmosis, i.e. observing a more experienced patrolman-at work. The portions ,of the vehicle and the manner of its inspection vary according to the type of vehicle. After the discovery that Respondent's property was being removed from the plant under the hood of the test cars, on March 28, 1962, Lieutenant Burg had the sergeants read at daily rollcall an order for the plant guards to raise the hoods of all test cars leaving the plant. Theretofore the inspection had not required the raising of the hood of these vehicles. The generalized instructions require the guards to inspect the cab of tractors "visually." Such "visual inspection" may mean all kinds of ,different things. The thoroughness of the investigation or inspection given a vehicle was largely ,discretionary with the patrolman on duty, except for the generalized rules. In addi- tion, some sergeants would, on occasion, issue orders for what is called a "100 per- cent inspection" of the existing vehicles which was a considerably more rugged and .complete inspection of the vehicle than was customary. As was to be expected, the type of inspection given tended to vary not only with the various individual guards on duty but also as to how busy the post might happen to be and, probably, even upon how well the individual guard had happened to digest his last meal. The evidence indicated that by September 27, 1963, the guards generally were tending to become somewhat lax and perfunctory in their inspections. The evidence also shows that with the change to the 1964 models, the space through which the fingers had to pass in order to unlock the hood of test cars became so restricted as to cause injuries to the guards' fingers. Soon' after the discharge of Mullen on September 30, this complaint came to the attention of Respondent with, the result that they were provided with 'a wooden tool with which to unlock the hood of the test cars. About 10:30 a.m. on September 10, Mullen was the guard at post 27, a busy exit gate. Lieutenant Burg had gone to check a matter on the fourth floor of the assembly building. As he was returning to his office, Burg passed windows on the third floor ,of that building from which he could, oversee post 27. Burg stopped and watched. He noted that the guard on duty did not raise the hood of a test car as required by the order of March 28, 1962, and that the guard appeared to fail to give the cab of a vendors' truck a visual inspection as it passed through the,post. Burg then proceeded to walk out of the building and up to post 27 which took about 10 or 15 minutes. As Burg approached the post he noted that the guard failed to check the'trailer of another vendor's vehicle. After that vehicle had pulled through the gate, Burg went to the post and found Mullen to be the patrolman on duty. Burg reprimanded Mullen for his failure to inspect the cars properly and reinstructed him as to the proper inspection method. He ended by saying "Get on the stick, Charlie." In his testimony Mullen had admitted that he had not raised the hood of the test car, blaming that on the fact that he had caught his wedding ring in the grill and thus was unable to unlock the hood. Mullen also included in his testimony the claim that he had just returned from a relief and thus was not the patrolman on duty while Burg had been watching from the third floor window. However, that test car had exited the post while Burg was on the third floor and, in addition, the post log shows 2 It appeared to this Trial Examiner that Timmins, Porter, and Labbe all suddenly be- came unduly, if not intentionally, vague about the conversation regarding Mullen Each testified that their 'various conversations on the subject, if their testimony can be accepted at face value, were almost universally restricted to one sentence conversations. Such single sentence conversations are hardly commonplace, especially, over a cup of coffee. 3 At Respondent's plant there are at least 30-odd posts to which guards are assigned. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Mullen had been the only guard on that post from at least 8:20 a.m, to 12:15 p.m. Thus, although Burg could not identify the patrolman while at the third floor window, the record requires the finding that that patrolman on duty had been Mullen. Immediately after the incident Lieutenant Burg filed a report thereof which became a part of Mullen's personnel file .4 On the morning of September 27 Mullen was the patrolman on duty at post 26, another busy exit post. On this occasion shortly before 8:30 a.m., Timmins was standing on a stairway overlooking the post and noted that Mullen failed to check the cabs of two company trucks; in addition , Mullen had failed to open the tractor door of a vendor's truck and had waved a company tractor through the post without any inspection. When Timmins got to the post, he called Mullen's attention to what he had seen and Mullen admitted that he had waved a company tractor through the post without inspection because it was going just across the street to another com- pany dock. Timmins preceded to the office of Chief Machesney where he reported his repri- mand of Mullen to Machesney . Machesney ordered Mullen replaced on duty and proceeded to suspend him without pay at 8:55 a.m., after Mullen had admitted that he had permitted the tractor to go through the post uninspected. Company records and the driver of that tractor proved that the tractor was not driven into the dock across the street as Mullen had informed Timmins. The driver also testified that the inspection given his tractor on that occasion did not differ from the usual routine inspection so far as he could tell. Later that day Timmins filed a written report of the incident with Mullen at gate 10 with Chief Machesney. On October 1 Mullen was notified by Timmins that he was discharged , effective September 30, 1963, for failure to perform his duties. Later that same day Mullen, accompanied by his attorney, George Roumell, had an exit interview with Timmins in the absence of Chief Machesney who was ill. Timmins testified that both Mullen and Roumell acknowledged the fact that Mullen had been derelict in the performance of his duties.5 He also testified that Mullen had been told that he would be considered for reemployment if he applied. About 3 weeks after the termination of Mullen, Patrolman O'Meara had a con- versation with Sergeant Porter in which O 'Meara, in his testimony, quoted Porter as saying "Why did he [Mullen] bring down that lawyer? He didn't need a lawyer. . He should have went to the Labor Board . He was fired for union practices." 6 About 2 weeks thereafter O'Meara testified that he had another conversation with Sergeant Porter in which Sergeant Porter asked O 'Meara if O'Meara had gone to the Board and signed an affidavit. After some sparring on the question O'Meara answered that he refused to answer the question "on the ground that it might in- criminate me." Thereupon Porter said, "You did. You are a marked man." Also during the course of this conversation Porter allegedly said , "Charlie [Mullen] might have been fired for union activities , but I will deny it anywhere" and that "We can fire anybody we want to around here, you know . . . . We may have to blacken a few records to do it in the meantime , but sooner or later we can get the man we want." 7 B. Conclusions For years the Board and the courts have emphasized the fact that the activities of an employee on behalf of a union is no guarantee against his being discharged for cause. In other words, no matter how active an employee may be on behalf of his union, he has, under this Act, no assurance of continued employment if he does not do his job. 4 General Counsel attempted to discredit this report on the ground that the same had not been called to Mullen's attention properly. Even if General Counsel's attempt had been successful , this would not discredit the facts. 6 Roumell was not called as a witness. 6In O'Meara's affidavit given to a field examiner of the Board , Porter was quoted as saying "He [ Mullen] was crazy to bring a lawyer anyway, his first choice should have been the NLRB because of his union background " 7 O'Meara's affidavit does not mention this last conversation. Porter denied having made any of the above -quoted statements attributed to him. How- ever, he did admit on cross-examination that he might have made some of them while sympathizing with some of Mullen's friends. Although the Examiner believes that Porter may have "sympathized " more than he ad- mitted, I do not believe that this conflict need be resolved as the statement, under the circumstances here, is isolated. CADILLAC MOTOR DIVISION, GENERAL MOTORS CORP. 749 That unhappily is the situation here. There is, and can be, no doubt but that Charles Mullen was the most active pro- union employee among the plant guards at Respondent's plant. Not only was Mullen the most active proumon employee, but Respondent knew him to be such. He led the Plant Guards Union organizational drive in 1960. When that failed at a Board- conducted election, he tried to revive interest in it again in 1961. Respondent was well aware of Mullen's efforts in both instances. Mullen made no secret of those efforts. Respondent was also aware of Mullen's attempt to interest the Teamsters Union in organizing the guards in July-August 1963 as well as of the Teamsters refusal on legal grounds to undertake such a drive. Respondent also was aware that Mullen had then once again turned to the Plant Guards Union for another attempt at or- ganization. Respondent's awareness was due to the fact that Mullen made no secret of his efforts. Except for the statement of Sergeant Porter to the effect that the patrolmen needed a union like they "needed a hole in the head"-a remark which any person living in the year 1963 might well have made-there is no showing in this record that Respondent put any obstacles-verbal or otherwise-in Mullen's way. The only suggestion of any respondent-made obstacle to Mullen's efforts is that somewhat mysterious one-sentence 4 a.m. conversation- between Timmins and Ser- geants Porter and Labbe in Timmins' office where the record suggests that Timmins may have asked Porter and Labbe to "watch" Mullen., There is, of course, the fact that when Sergeant Porter received a report from a patrolman that Mullen had asked the patrolman if he was "for or against us" in making another organizational attempt with the Guards Union, Porter immediately reported that fact to Timmins. How- ever there is no showing that Respondent actually. made any adverse move against Mullen's actions on behalf of the Union. I must candidly state that this whole episode as dragged out of Respondent's wit- nesses on cross-examination does not altogether ring true. The obvious reluctance of Respondent's witnesses to testify candidly and frankly. about these episodes created a suspicion in my mind that there was more to the episode than Respondent per- mitted to come to light. However the courts have always held that suspicion is not enough to prove a case. I agree. On the other hand Lieutenant Burg and Timmins did catch Mullen in moments when he was not performing his required duty. Mullen did, as he acknowledged under pressure, permit a few vehicles to go past his post without a proper check. This leads to the question as to just what was "a proper check." As to this question I would have to say that Respondent's printed and oral rules as to the proper checking of vehicles left much to be desired. The testimony at the hearing created a picture of some laxity throughout the plant guard system: Respondent's generalized direc- tives to the patrolmen as to their duties left too much to the interpretation of the individual patrolman. For instance, just exactly what is a "visual inspection" of the cab of a tractor? Must the cab door be opened? Or is looking through the window of the cab sufficient? Hence I was not impressed with Timmins' testimony that Mullen did not "visually" inspect the cabs of the various vehicles passing post 26. How was Timmins able to determine that Mullen had not "visually inspected" the cabs? If that were all the testimony against Mullen, one would begin to think that the discharge was based on a mere pretext. However Mullen's own testimony showed that on both September 10 and 27 he had not inspected existing vehicles in the manner he knew was required by Respondent. Furthermore the record also shows that the explanation given by Mullen for such laxity was not accurate: on September 10 when he was observed by Lieutenant Burg, although Burg could not recognize the patrolman on duty, Mullen had not just come on duty from a relief; and on September 27 when he was observed by Timmins, the tractor Mullen waved through did not just go across the street to another dock. Although the penalty imposed by Respondent appears to have been overly severe under the circumstances existing, I must find that Respondent discharged Mullen for cause. Accordingly I will recommend that his complaint be dismissed in its entirety. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Cadillac Motor Division, General Motors Corporation, is engaged in commerce within the meaning of Section 2(7) of the Act. 2. Respondent has not engaged in any unfair labor practice within the meaning of Section 8 (a) (1) or (3) of the Act. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER I hereby recommend that the complaint in the instant matter be dismissed in it& entirety. St. Louis Typographical Union No. 8, affiliated with Inter- national Typographical Union, AFL-CIO and Union Employ- ers' Section of the Graphic Arts Association of St. Louis, Inc. Case No. 14-CB-1135. November 17, 1964 DECISION AND ORDER On March 26, 1964, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practice and recommending that the complaint herein be dismissed in its entirety, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Deci- sion and supporting briefs, and the Respondent Filed a brief in support of the Trial Examiner's Decision. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner as modified herein. The facts are essentially undisputed. In brief, they show that the Association or its predecessor has bargained for many years with the Respondent and four other printing trade unions. In September 1963, the Association and the Respondent met to negotiate a modification of their agreement. At this meeting the Association informed the Re- spondent that at the next and successive meetings the Association would have a court reporter present to make a verbatim transcript of the bargaining. The Respondent offered to meet without the stenographer, but the Association insisted on his presence. At a meeting between the parties in November 1963, at which a stenographer was in attendance, the Respondent offered to discuss the question of the reporter's pres- ence "off the record" or in private, but the offer was refused and the meeting terminated. The Respondent indicated that had its offer been accepted, it would have explained its policy not to negotiate in the presence of a reporter and that it would not deviate therefrom. The Association field charges alleging that Respondent's refusal to meet in the presence of the stenographer violated Section 8(b) (3). 149 NLRB No. 71.