General Motors Corp.

GENERAL MOTORS CORP. 15 General Motors Corporation, Chevrolet Motor Division and Claude V. Jackson, Jr. Case 10-CA-6501. April 17,1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 25, 1966, Trial Examiner Morton D. Friedman 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 that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's. Decision and a supporting brief, and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed March 24, 1966, by Claude V. Jackson, Jr., an individual, herein referred to as Jackson, the Regional Director for Region 10 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on May 19, 1966, against General Motors Corporation, Chevrolet Motor Division,' Respondent herein, alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at Atlanta, Georgia. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Briefs were filed by the General Counsel and the Respondent.2 Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation with a plant and place of business located at Atlanta , Georgia, where it is engaged in manufacture and sale of automobiles and trucks. During the calendar year immediately preceding the issuance of the complaint herein , a representative period , Respondent sold and shipped finished products of a value in excess of $50,000 to customers located outside the State of Georgia. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that International Union, United Plant Guard Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues presented by the pleadings are: 1. Whether Sergeant James A. Lewallyn interrogated employee Claude V. Jackson unlawfully and threatened the same employee with discharge in violation of Section 8(a)(1) of the Act. 2. Whether the Respondent discharged and thereafter failed and refused to reinstate employee Claude V. Jackson for cause or for discriminatory reasons. B. The Events as Revealed by the Testimony Claude V. Jackson, Jr., was hired by the Respondent in its Atlanta, Georgia, plant on January 1965 as a patrolman in the Respondent's plant security department. Jackson was so employed during the entire period of his employment. Approximately 2 or 3 weeks after Jackson had first come to work for the Respondent, Patrol Sergeant Cole asked Jackson if the latter had received any literature pertaining to a union. Jackson answered in the negative. However, 2 or 3 days later Jackson did receive some union literature and told Cole about it. Cole asked Jackson to bring the literature to him or to Chief Harry S. Breazeale, the head of plant security. Thereafter, Jackson brought the material to the plant and gave it to Chief Breazeale.3 i The name of the Respondent appears as amended by motion at the hearing 2 By motion dated August 18, 1966, General Counsel moved to correct the transcript in certain respects . There being no opposition to the said motion it is hereby granted and the transcript is corrected accordingly. 3 This incident regarding the request for union literature is recited for background purposes only because the event occurred more than 6 months prior to the filing of the charge herein and pursuant to Section 10(b) of the Act cannot be used as a basis for an unfair labor practice finding, 164 NLRB No. 5 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Patrolmen in Respondent's plant security department are rotated on a monthly basis between three shifts. The A shift, or first shift, also known as the day shift, begins at approximately 7:30 a.m. and ends at 3:54 p.m. The B shift, also known as the second or afternoon shift, begins about 3:30 p.m. and ends at approximately 11:54 p.m. The C shift, which is also known as the third or midnight shift, begins at 11 :30 p.m . and continues until 7 :54 a.m. A number of the patrolmen, Jackson included, became unhappy with the shift rotation and desired to remain on one shift permanently. This desire was made known to management and the employees involved requested that a vote be taken on shift preference. In connection with this movement, in the latter part of October 1965, Jackson engaged Chief Breazeale in a conversation. Chief Breazeale stated that he understood that some of the patrolmen had been discussing voting on shift preference. Breazeale then told Jackson that if shift preference were voted in, younger men such as Jackson would have to take the C, or midnight, shift because of their seniority. Breazeale added that this would cause the morale of the guards to be lowered and also the men would become dull and bored being on one shift all the time. Jackson answered Breazeale that he, Jackson , personally preferred working on one shift because he had much difficulty adjusting physically from the day shift to the night shift. Breazeale merely shrugged his shouldeers and walked off.4 According to Jackson, the next event concerning shift preference occurred during the week of November 21, 1965, probably on Thursday evening of that week. He claimed that right after rollcall of the guards on the C shift (which occurred probably about 11:30 p.m.), he brought up the question of shift preference with Sergeant Lewallyn. Jackson testified that he asked Lewallyn if the guards were going to have a vote on shift preference. Lewallyn answered that he did not know anything about it. Then, according to Jackson, he asked Lewallyn to talk to Chief Breazeale about the matter. The guards were then dismissed from rollcall and proceeded to their assigned posts. However, according to Jackson , the following night he asked Lewallyn if the latter had checked with Breazeale . Lewallyn answered that he did not check on anything that was not of importance to him. According to Jackson, on that same day he had a casual conversation with Sergeant Lewallyn at post No. 1 to which Jackson was assigned . During that conversation, according to Jackson, Lewallyn asked Jackson if the latter had heard anything about organizing the plant protection department. Jackson answered in the affirmative and then, according to Jackson, Lewallyn said, "Don't get involved with it. It could cost you your job." On cross-examination Jackson expanded on this testimony and said that it was in the squadroom at approximately 11:35 p.m., after Sergeant Lewallyn had read the roll, and as the men started to leave the squadroom after rollcall , Jackson spoke up and said, "Just a minute I have a question that pertains to everyone." According to Jackson, all of the guards on that shift waited as Jackson asked Lewallyn if and when the patrolmen were going to get the vote on shift preference. Thus, if Jackson 's testimony is accepted , these incidents occurred almost at midnight on November 25 and 26, Thursday and Friday of the week of November 21. According to Jackson, also, Lewallyn was the shift sergeant for that shift. However, Sergeant Lewallyn testified that during the time mentioned in Jackson's testimony, the week of November 21, Lewallyn was assigned to and worked the A, or morning, shift which began at 7:30 a.m. Lewallyn agreed with Jackson's testimony to the effect that Jackson was assigned to the C, or midnight, shift which goes off duty at 7:54 a.m. Lewallyn's testimony was substantiated by two other items of evidence. First, introduced into evidence was an exact copy of the shift assignments for that period of time which definitely show that Sergeant Lewallyn was assigned to the A shift as shift sergeant whereas Jackson was definitely assigned to the C shift. Additionally, the record reveals as will hereafter be explained in detail, that this was the same period of time during which a certain shipment was made which was not handled properly by Jackson. This demonstrates that Sergeant Lewallyn, in order to clear up this misshipment, was working during the day with the people in the finance section. This would show that Lewallyn was not on the night shift with Jackson. Although, on rebuttal, Jackson sought to change his testimony as to the dates of the alleged incident above recited to some time in December, I conclude that this was afterthought. I find, therefore, that because of Jackson's insistence as to when the alleged incident occurred and because the other testimony and evidence showed that it could not have occurred because Lewallyn and Jackson were working on different shifts, I conclude and find that Lewallyn's denials are more reliable than Jackson's testimony as a whole with regard to the alleged incident. Moreover, for reasons hereinafter set forth, I find and conclude that Jackson's testimony is in other ways unreliable.5 Additionally, from my observation of the two individuals involved, Jackson and Sergeant Lewallyn, I conclude that Lewallyn, by the manner in which he testified and by his general demeanor, is the more reliable of the two witnesses. Accordingly, I find that the incident as testified to by Jackson did not occur. According to Jackson, additional activities with relation to the employees concerted efforts to obtain shift preference came about when some of the other guards and Jackson decided sometime toward the end of the year 1965 or the beginning of 1966, that further action would have to be taken in order to obtain shift preference. Accordingly, on or about January 5, 1966, Jackson, together with two other employees, met at one of the employee's home and decided to make contact with the Union. Thereafter, Jackson participated in the solicitation of union authorization cards with some success . However, it was not until March 2, the day on which Jackson was discharged, that Jackson by a telephone call to the Union's International headquarters in Detroit let it be known to the Union that the guards at the Respondent's plant were interested in becoming union members . This, then, was the extent of Jackson's union activities which, by his own admission on the stand, Jackson had kept secret from the Respondent and Jackson s supervisors. As alluded to above, Jackson was given notice of discharge on March 2, 1966. His work record as a patrolman in the Respondent's security department was somewhat less than satisfactory according to Jackson's From the uncontroverted testimony of Jackson which I credit . S See below the incident in which patrolman Ellison was involved in relation to the events leading to Jackson's discharge, GENERAL MOTORS CORP. 17 own admission. Thus, on Saturday, November 20, 1965, just prior to the week during which the alleged incident related heretofore was suppose to have occurred, Sergeant Lewallyn was advised that a vehicle had been incorrectly shipped. As a result of this information, Lewallyn, on Monday morning, November 22, began an investigation to find the lost unit. It took him virtually the entire day of November 22 to search out the lost vehicle and to complete the paperwork to find the mismatched records relating to that vehicle. Finally, toward-the-end-of the 22d, the mismatched unit and its proper papers were found, the paperwork corrected, and the unit released to the Respondent's carrier. Because Chief Breazeale was on vacation when this incident occurred, Sergeant Lewallyn prepared a report to Breazeale relating what happened and attaching copies of the papers. No names were mentioned in the report because at that time Lewallyn was not sure whether it was Jackson or some other guard who was responsible for this error. Upon Breazeale's return to work on November 29, the report was brought to his attention. On November 30, Breazeale called Jackson to his office for an interview connected with the error in unit shipment. Jackson was shown the copy of the vehicle order in question together with the plant protection stamp and the initials on the order. Breazeale asked Jackson whether the initials were his. Jackson admitted that they were. Breazeale thereupon went over the entire situation with Jackson pointing out to the latter his negligence in the matter. Breazeale also advised Jackson that his performance had been unsatisfactory and that it was expected that he would improve the quality of his work. Additionally , Breazeale told Jackson that a written record of this incident would become a permanent part of Jackson's personnel file. On the witness stand Jackson admitted the interview and his part in the incident. He stated that at that time he told Chief Breazeale that he would be more careful in the future. Approximately 3 months later, on February 23, 1966, 22 units (vehicles) were released by Jackson for shipment and loaded on trilevel railway cars preparatory to shipment without any indication on the accompanying paperwork as to whether the units had been properly inspected prior to shipment. As a result of this negligent work on Jackson's part it became necessary for Sergeant Lewallyn, assisted by an employee from the shipping department, to inspect the 22 units which were covered with ice and snow on the railroad cars to make comparisons in order to process the necessary paperwork in connection with the shipment. In accordance with the Respondent's procedures, and in his line of duty, Lewallyn reported this incident to Chief Breazeale . As result, Breazeale interviewed Jackson concerning the improper processing of the 22 units. Breazeale showed Jackson the paperwork and Jackson admitted that he could not find any identification on the car orders which would indicate that the vehicles had been properly inspected before shipment . Breazeale then went over the procedures for shipment to be followed on post 8 where the negligent work had been performed by Jackson. He told Jackson, as Jackson had been fully informed before, that each unit was to be checked individually and each car order was to be initialed before the vehicle was released. Moreover, Breazeale told Jackson that the car order was to be stamped and dated as soon thereafter as possible. Jackson admitted the error but indicated that he had performed all the work and that he was sure that he had checked the units but had neglected to stamp and initial the paperwork. Breazeale advised Jackson of the seriousness of the matter and Jackson apologized for the incident and stated once again that if he were given another chance it would never happen thereafter. As in the case of the earlier incident of negligence on Jackson's part, Breazeale told Jackson that a record of the incident would be placed in Jackson's permanent personnel file.6. Thereafter, on March 2, 1966, Jackson was assigned to the railroad tower, post 5. Before he left to report to his post, Jackson inserted and hid in his clothing a magazine for the purpose of reading while on post. It is conceded that the reading of magazines on duty by guards is strictly forbidden. On that day, while Jackson was on his post, Chief Breazeale , who was in the area in connection with his duties, noticed that Jackson was sitting in the tower with his head down. Prior to this Breazeale had been informed that Jackson had concealed a magazine on his person. At the same time, approximately 10:30 a.m., Breazeale observed a railroad car containing material being switched in and out of Respondent's premises with the door open. Breazeale brought this matter to the attention of the general foreman of the department and continued to observe the switching. During the same period of time Breazeale also observed Jackson's performance. Jackson continued to sit in the tower bent over. At no time during this switching of the open boxcar did Jackson raise his head to observe whether any other activity was occurring on the post with which he was charged. Finally, Breazeale approached the tower itself and noticed as he approached that Jackson rose from where he had been sitting and walked to the other side of the tower. Breazeale climbed to the tower and asked Jackson where the book or magazine was that Jackson had been reading a few minutes before. At first Jackson denied reading a book or magazine but upon being pressed by Breazeale , Jackson handed Breazeale a pamphlet issued by the Respondent. Breazeale was not satisfied and continued to press Jackson who finally opened a desk drawer and out of a brown folder pulled a Reader's Digest magazine and handed it to Breazeale. There is some dispute as to what occurred next. According to Breazeale he asked Jackson if the latter had observed the open railcar being switched on and off the premises and Jackson admitted that he had not. According to Jackson, when asked by Breazeale whether he had observed the open railcar, Jackson informed Breazeale that he had already informed patrolman Ellison, the plant protection clerk about the matter and had given Ellison the boxcar number. However, Ellison testified credibly that Jackson. never made. any such call to him.' I find, therefore, that Jackson did not make the telephone call as he claims and that the incident occurred as related by Chief Breazeale. After discussion of the railcar incident , Breazeale advised Jackson that the latter was negligent, that this was not the first time, and that there was no excuse for it. He 6 All of the foregoing is from the uncontroverted testimony of Breazeale to which Jackson agreed on the witness stand. 7 I credit Ellison because from his general demeanor and his forthright manner of testifying I am convinced of his reliability. Moreover, there is nothing in the record that would cause me to believe that Ellison was not a wholly reliable witness . On the other hand, I elsewhere find that Jackson is somewhat less reliable. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed Jackson that we would talk to him later and left the post. About an hour later Jackson was relieved of his post by Breazeale and taken to the office of Oliver Moseley, the Respondent's salaried personnel administrator. Jackson was interviewed by Moseley. During this interview Jackson's record as an employee was reviewed with him and he was informed that his work had been unsatisfactory. Moseley further told Jackson that he did not believe that the latter would make a good security patrolman, that perhaps the job was too dull for him, and that, therefore, Jackson would probably like some other work. Moseley further told Jackson that the latter, being a young man, would be given an opportunity to resign so that his record would not show a discharge. Moseley also informed Jackson that if he did not resign, he was to be discharged as of March 15. Jackson refused to resign but before he left the office was asked to sign a release of funds which were deposited in his behalf in the Respondent's stock-sharing plan. Jackson further testified that no other employee had even been reprimanded for reading on the job. However, on the witness stand Jackson was asked if he knew of any instance of his knowledge when a guard was reading on the post to the knowledge of a company supervisor. Jackson answered that he had not, although he had. never heard of any guards being discharged for reading on the post or being reprimanded or warned for such conduct.8 Thereafter, on March 14 Jackson was relieved of his post of duty at approximately 11:30 a.m. and proceeded to change his clothes. As he started to leave, he was confronted by Sergeant P. Harrington who asked him for his employee's pass. That was the last day Jackson worked. The foregoing constitutes all of the events as disclosed by the testimony and other evidence with the exception of an incident which allegedly occurred a few days after Jackson's final release. According to the combined testimony of employees Charles Lee Ables and J. D. Bentley, on March 18 the two were having coffee during their break in the production portion of the plant where they worked (they were production employees and not guards), when Sergeant Lewallyn happened by. According to Ables and Bentley, Lewallyn walked up and Ables asked Lewallyn if the latter would care for a chew of tobacco. Lewallyn refused and Ables then said to him, "By the way, what happened to our boy Jackson?" According to the testimony of these two individuals, Lewallyn said, "Well, the company let Jackson go." When Ables asked Lewallyn why Jackson was let go, Lewallyn said that Jackson was messing (another word used) with the Union. Then Ables said that would not be a good enough reason to let a fellow go and Lewallyn said that in his opinion it was. Lewallyn, in testifying, specifically denied that he spoke to either Ables or Bentley on March 18 at the coffee machine. He testified that, in fact, he did not see Bentley or Ables all that day. He specifically denied that he ever told Able or Bentley or both of them that Jackson was discharged for "messing with the Union. Nor did he tell either of them at any time that union activity was a good enough rea,un for discharging an employee. It should be further noted that both Ables and Bentley admitted that neither of them knew Sergeant Lewallyn very well except to see him about the plant upon occasion 9 With regard to allegedly disparate treatment of Jackson. General Counsel also introduced the testimony of former patrol employee Jennings C. Brown, Jr. However, I have studied and both admitted that they were not particularly friendly with Jackson. As a matter of fact they both admitted that their acquaintanceship with Jackson was indeed a very limited one, approximately the same type of acquaintanceship as they had with Lewallyn. It is difficult for me, therefore, to believe that under these circum- stances Ables would have asked Lewallyn, "What happened to our boy Jackson." On the other hand, there was nothing in the conduct on the witness stand of either of these two individuals, Ables and Bentley, which would indicate their lack of veracity or their lack of reliability as witnesses. Although there were some inconsistencies in their testimony on cross- examination, I find nothing therein as trier of fact upon which to base a refusal to accept their testimony. Yet, I have heretofore, for other reasons, credited Sergeant Lewallyn. As noted before, I have stated that I was impressed with the manner in which Lewallyn testified and that his demeanor struck me as being that of an honorable and reliable witness. Thus, I find that the credibility resolution as between the testimony of Ables and Bentley and the denials of Lewallyn becomes most difficult. However, in view of my ultimate disposition of the issues in this case, I find it unnecessary to dispose of this credibility issue. C. Concluding Findings As noted above, Jackson, by his own admission, was less than a satisfactory employee. On two separate occasions he was involved in costly mixups of unit shipments brought about by the negligent handling of his assigned paperwork. Then, to cap the climax, he was caught reading on the job when he should have been observing an open boxcar and then proceeded to tell an untruth with regard to his alleged report of that open boxcar. Although, it would seem that to some extent the guards or patrolmen at the Respondent's plant were involved with clerical and paperwork, it is also beyond question that they are even more directly involved with the security of the plant. Jackson was told at his exit interview by Moseley that he did not measure up to the standards which the Company required for its security employees and Moseley recited to Jackson the items upon which the Respondent based its decision that Jackson was a security risk. Since security was at stake, it would seem that this was a more than reasonable conclusion and that the Respondent's action in discharging Jackson was, therefore, warranted in the absence of unlawful motivation. We must, therefore, look to the record for indicia of pretext and unlawful motivation as claimed by the General Counsel. I have heretofore set forth the testimony of Jackson that his union activity was, indeed, secret. The only evidence which I have not heretofore rejected upon which a finding of unlawful motivation for Jackson's discharge could be based comes from the incident involving Bentley, Ables, and Sergeant Lewallyn. Assuming, for the moment, that Ables' and Bentley's testimony is credible we have a statement by a minor supervisor to the effect that Jackson was discharged for union activity. This, would, indeed give rise to suspicion that Respondent's motivation was discriminatory. But I note that Jackson was discharged by Moseley and Chief Breazeale. Lewallyn's part in this discharge was Brown's testimony carefully and find that it is too contradictory and equivocal to be considered in arriving at any conclusions. GENERAL MOTORS CORP. 19 virtually nonexistent except for the fact that he did report the incidents of the mixed shipments to Chief Breazeale. While it is true that it can be inferred, on conjecture, that Breazeale or Moseley might have told Lewallyn the reason for Jackson's discharge, I find that the more reasonable inference is that if Lewallyn made the statement to Bentley and to Ables at all it was merely Lewallyn's estimate of the situation rather than a repetition of fact. Additionally, as noted above, Jackson was an admittedly poor employee and his union activity was admittedly very secretive. I have discredited Jackson's account of conversations regarding shift preference with Sergeant Lewallyn and, moreover, I have found that he was neither threatened by Lewallyn nor by any other supervisor or official of the Respondent. Additionally, the General Counsel has failed in his attempt to show disparate treatment in the case of Jackson. Accordingly, I find that the testimony of Ables and Bentley, which I initially hesitate to credit, merely gives rise to a suspicion of unlawful motivation and no more. I cannot conclude, therefore, that in the light of the entire record and especially of Jackson's poor record as an employee, that the motivation for the discharge was in any way unlawful. The burden of proof in such cases, it is well established, is on the General Counsel and I conclude that the preponderance of the evidence is not such as to warrant a finding of unlawful motivation. In coming to this conclusion, I have also considered the fact, as set forth above, that Jackson made no attempt to contact the Union in Detroit, or for that matter, any union organizer aside from the employees in the plant, until the date he was discharged for malfeasance. If, indeed, this record gives rise to any strong suspicion at all, it gives rise to the suspicion that Jackson's union activity was an afterthought by Jackson as a device to save his job after he had proved himself to be an incompetent employee. On the basis of all of the foregoing, therefore, I shall recommend that the complaint in this proceeding be dismissed in its entirety. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint heretofore filed in this proceeding be, and the same hereby is, dismissed. 298-668 0-69-3