Local 227, Automobile Workers

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 227, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (Chrysler Corporation) and Michael J. Modeiski . Case 7-CB-1987 i April 28, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 6, 1970, Trial Examiner Stanley N. Ohlb- aum issued his Decision in the above-entitled proceeding, finding `that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amend- ed, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner 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 Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examin- er. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended , the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent , Local 227, International Union , United Automobile , Aerospace and Agricultural Implement Workers of America (UAW), Detroit, Michigan, its officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recommended Order. MEMBER BROWN, dissenting: I would dismiss this case for I am not satisfied that the record preponderantly establishes the violations alleged. ' These findings and conclusions are based, in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted The Trial Examiner's credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT STANLEY N. OHLBAUM, Trial Examiner: This proceed- ing under the National Labor Relations Act as amended, 29 U.S.C. Sec. 151, et seq. (Act), brought on by com- plaint issued through the National Labor Relations Board's Regional Director for Region 7 (Detroit, Michi- gan): on July 30, 1969, based upon a charge filed on June 13, as amended June 25, 1969,' by Michael J. Modelski, was heard; before me in Detroit, Michigan, on October 13 and 14. All parties participated throughout and were afforded full opportunity to present evidence and contentions, propose findings and conclusions, and file briefs. Subsequent to the trial, extensions of time for that purpose having been allowed on application of counsel, a brief was received from Respondent. That, together with the record made at the trial, has been carefully considered. Upon the entire record' and brief, as well as my observations of the testimonial demeanor of the witness- es, I make the following: FINDINGS AND CONCLUSIONS II. PARTIES; JURISDICTION At all material times, Respondent has been and is a labor organization within the meaning of Section 2(5) of the Act. At all of those times, Chrysler Corporation (Chrysler) has been and is a Delaware corporation with its principal executive offices in the city of Highland Falls, Michigan. Chrysler maintains plants, offices, and facilities in Michigan and other States, where' it engages in manufacture, sale, and distribution of motor vehicles and related parts and accessories. The Chrysler plant at 12640 Burt Road, Detroit, Michigan (Burt Road plant), is the only facility involved in this proceeding. During the representative year ending December 31, in the course and conduct of its said operations, Chrysler manufactured, sold, and distributed from its Michigan facilities, products valued in excess of $1,000,000, ship- ping such products directly in interstate commerce to places outside of Michigan; and, during the same period, Chrysler also purchased and caused to be transported, directly in interstate commerce from places outside of Michigan to its facilities in Michigan, motor vehicle parts and other goods and merchandise valued in excess of $1,000,000. Michael J. Modelski is an individual who in May through June was an employee of Chrysler at its Burt Road plant, and a member in good standing of Respondent's Union. I find that at all material times Chrysler has been and is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. Hereinafter all unspecified years are 1969 i Trial transcript in respect to obvious and typographical errors have been noted and corrected 182 NLRB No. 30 LOCAL 227, AUTOMOBILE WORKERS 183 I find that assertion of jurisdiction in this proceeding is proper. III. ALLEGED UNFAIR LABOR PRACTICES A. Issue The issue presented is whether Respondent Union has violated: (1) Section 8(b)(1)(A) of the Act by restrain- ing and coercing Chrysler employees in exercise of rights guaranteed by-Section 7 of the Act through (a) threatening Modelski with discharge because he had expressed dissatisfactions about the Union and its modus operandi, (b) demanding and causing the discharge of Modelski from his employment with- Chrysler; and (c) stating to employees that Modelski had been discharged because of his complaints about the Union; and (2) Section 8(b)(2), by causing Chrysler to discharge Model- ski because of his complaints about the Union, thereby attempting to cause and causing Chrysler to discriminate against employees in violation of Section 8(a)(3) of the Act. B. Facts as Foun`d' Michael J. Modelski, the Charging Party, is a Universi- ty of Michigan student who obtained a 1969 summer job at the Chrysler Burt Road plant in Detroit, as 1 of 20 stockpickers-packers-nailers. The job, hourly rated and weekly paid, was not to exceed 90 days. He started on May 19 expecting to be laid off during the last week of July or the first week of August, to resume school later in August. Before, starting work, Modelski signed a prehire,form (Enrollment Form for Hourly Employees) in which he authorized a payroll deduction or. `check-off ",for both union. initiation fee, and, dues to Respondent Union.3 ' Instructions on the reverse side of the form covered various subjects on the front of the form, including employee authorizations for tax withholdings , payroll savings , charitable pledge, group life insurance, and health care coverage Subject number "8" was the "check-off" authorization It read 8 Authorization for Check-off of Dues UNION MEMBERSHIP CONDITION OF CONTINUED EMPLOYMENT The Agreement between Chrysler Corporation and the Internation- al Union, UAW and Local Unions requires all employees to become members of the Union to the extent of tendering an initiation fee and membership dues, as set forth in the Agreement Employees who are presently members of the Union must remain members for the duration of the Agreement Employees covered by the Agreement who are not members of the Union must become members within 10 days following the 30th day after the effective date of the Agreement. Employees hired , rehired, reinstated or transferred into a bargain- ing unit after the effective date of the Agreement must become members within 10 days after the 30th day following the beginning of employment All employees are required to remain members of the Union for the duration of the Agreement Employees may have their dues deducted from their earnings by signing this 'Authorization for Check-Off of Dues ' form, or they may pay dues directly to the Union . Employees on Check- Off may have the Check -Off cancelled as provided thereon and pay dues directly to the Union , however , they must remain members of the Union for the duration of the Agreement This "check-off" provision and quoted form were pursuant to the subsisting collective agreement between Chrysler and Respondent Modelski testified that although, prior to taking the job at Chrysler, he was "aware" he would have to join the Union and pay dues, there was no discussion of these subjects during the prehire interview, but that he was "aware" that the $20 union initiation fee was typed in at the appropriate place on the form when he signed it. However, he now claims that he did not read the authorization before he signed it, even though it states, in part, "I hereby certify that I have read and understnad . . ." it; and he now claims that when he signed the prehire form authorizing the "check-off" for the union initiation fee and dues he was not "aware" that there would be such a "check-off," although he was and is unopposed to payment of such union fee and dues by checkoff. There is no evidence that Chrysler in any way coerced,' required, or even indicated that Modelski should sign the "check off" authorization form which he now denies he read,4 but which I find he either read or was at least "aware" of the content of Modelski's first paycheck, for the pay period ending May 25 (Sunday), distributed the following Friday (May 30), indicated a deduction of $6.76 for union dues. He concedes he "had no objection to the dues deduc- tion." On his next paycheck, for the pay period ending June 1 (Sunday), distributed the following Friday (June 6), Modelski noticed a deduction of $20 for union initia- tion fee as well as $6.76 for dues.. According to Model- ski's testimony, over the ensuing weekend he clipped from an issue of a weekly publication, received at his home during the preceding few days,5 an item therein to the effect that employers may not lawfully require employees, at the time of hiring, to execute "check- off" authorizations for union fees, but that 30 days of employment must first expire before such a require- ment may be imposed and such fees deducted from pay 6.7 On the ensuing Monday, June 9, Modelski approached Union Steward Clover in the plant in the presence Indeed, the instructions accompanying that authorization (quoted supra, fn ' 3) expressly point out that new employees have " 10 days after the 30th day following the beginning of employment " to become members of the Union, in accordance with the subsisting collective agreement There is, of course, no prohibition or bar , statutory or otherwise , to an employee's joining the Union earlier than that, such as at the inception of his employment. I I.e., U S News and World Report, issue of June 9 It is a matter of common knowledge that this among other such magazines is publicly distributed prior to , and in some cases about a week prior to, the publication date appearing thereon Modelski's testimony establishes this is such a publication and that it was so distributed Modelski was unable to recall the precise date when he first read the item in question The magazine item reads - "YOU [i .e , employer] CANNOT require new employees, at the time of hiring, to apply for union membership and to sign checkoff authorization for union fees. The National Labor Relations Board finds that an employer violated the Taft-Hartley Act by such a requirement and by deducting the union fees during the first 30 days of employment . The employer is ordered to reimburse employ- ees for the amount deducted " It is reiterated that there is no evidence that the Employer here (Chrysler) at any time , in any way , required Modelski to execute the "check -off" authorization form which he signed at his preemployment interview 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his fellow-employee Janice-with whom Modelski had discussed the subject of union-fee deductions from pay-and, showing the magazine clipping to Clover, told Clover that the $20-union-initiation-fee deduction from Modelski's pay was improper.8 Clover indicated that it was inapplicable to Modelski, but Modelski persist- ed that the $20-initiation-fee deduction was improper since he, had only been there for 2 weeks. Clover then accused Modelski of freeloading. When Modelski stated it was "illegal,", the discussion heated up into an exchange of display of political party credentials, and there ensued a colorful political discussion, during which Modelski voiced opposition to the Union and Clover referred him to the National Labor Relations Board.9 That same afternoon (Monday, June 9), in the plant cafeteria, there occurred a similar type of exchange among Modelski on the one side, and, on the other side, then Chief Union Steward Clover, longtime Local Union President Herron, and Union Committeeman Zid- zik.10 When Modelski continued to assert that the'deduc- tions from his pay were unlawful,' he was branded as a "trouble" maker.-Herron told him: . . . . so you're the fellow who wants to cause trouble around here, hey? . . ' Listen, you don't have to be working here. You can be out on the street pumping gas for a buck 50. . . . I've had a lot of guys come in here, young fellows, trying to give me trouble. I've been here a long time and I've helped build up this structure and I'm not going to have anybody come inhere and trying to do anything to it." I " Modelski was supported by General Counsel witness Janice in his testimony that this conversation occurred on Monday, June 9, following an earlier discussion by Modelski with him on the subject of the "check-off " Union Chief, Steward Clover (now no longer a Chrysler, but a union, employee) insisted, however, that the conversation occurred during the preceding week, on June 5 or 6, and, during cross-examiiation, that it was on Thursday, June 5 In view of Janice's corroboration of Modelski, the seeming unlikelihood that Modelski would be making an issue over the initiation fee deduction before he ever saw it on his paycheck (which, if Clover's version is to be credited, Modelski had not as yet received), and the likelihood that it was indeed-as1 testified by Modelski-the magazine item, clipped by him on the weekend after receiving his paycheck on Friday showing the $20 deduction, which triggered his protest to Clover, I credit Modelski's version that the described conversation with Clover occurred on Monday, June 9, although the precise date does not appear to be of transcending importance ',Based upon the testimony of Modelski as substantially corroborated by Janice, in preference to the partially contrary testimony of Shop Steward Clover, who now works for the Union. During cross- examina- tion, Clover defined his understanding of a "closed shop" to be "a state where they don't have unions 10 Again, according to Clover, as well as Herron and Zidzik, this occurred on Friday, June 6 I do not regard the difference of date to be of overriding significance 11 A variant version of this conversation is provided by Local Union President Herron (a Chrysler employee since 1946, and now an "Inspec- tor" at the Burt Road plant; and since 1963 the local union president) According to Herron, when Modelski questioned him why the union fees-dues as well as initiation fee-had - been deducted from his pay, Herron,merely asked Modelski whether he had "voluntarily" signed the "check-off" authorization, which Modelski agreed he had, and then, when he told Modelski that if he had not done so he would have had,40 days to join, Modelski said he,thought this was "wrong" and that he would "pursue this matter further and go to the National Labor Relations Board " Herron, insisting that he was the only one Later in the afternoon, Union committeeman Zidzik approached Modelski on the job and resumed the earlier conversation. When Mbdelski again showed him the magazine clipping, Zidzik told him that since it was a "closed shop" he could not be hired unless he was a union member; but that, although he was automatically a union member on hiring, he could not be represented by the Union until the expiration of 30 days.12 On the following day (Tuesday, June 10), Clover pointed Modelski out to another or other employees as a person who "doesn't want to pay his dues to the union."13 On the next day (Wednesday, June 11), in midweek, Modelski was summarily discharged by being handed a typewritten dismissal notice stating as the reason: "not suitable for this type' of work." It was signed for a buck 50. . : I've had a lot of guys come in here, When Modelski pointed out that his productivity was substantially in excess of that required, Wartella's response was that he (Wartella) did not know why he was being fired and referred him to Plant Superintend- ent Novak (who had approved the dismissal notice). When Modelski saw Novak, Novak referred him back to Wartella. Wartella then indicated to Modelski (who had been joined by Shop Steward Clover) that although he ;had no complaints about, Modelski's work, he had received the dismissal order "from upstairs." Modelski left, with Clover assuring him the Union would get him his job back. On the following morning (Thursday, June 12), Model- ski visited Chrysler Personnel Representative Carter in the plant and, recounting to him the foregoing events, asked him why he had been, discharged, since nobody seemed to know, "unless it was for some reason the union was angered." According to Modelski,`, 'Carter admitted giving the actual order to, fire Modelski on of the three union officials who spoke to Modelski , on this occasion, flatly denied calling Modelski a "trouble-maker " or anything similar Testifying with regard to the same episode , Union Committeeman Zidzik (also a Chrysler "Inspector") in part supported Herron's version, but appeared to back off committing himself to details by insisting that although he was there he was "not -a part of this conversation at all," as did former Shop Steward Clover (now a union employee), who was also there, but who testified that he either did not hear or could not remember what Modelski said and that he paid little if any attention to the conversation This impresses me as hardly likely in view of Zidzik 's direct interest and Clover 's active involvement with Modelski earlier that day During cross-examination , Clover also denied discussing the Modelski matter with either Zidzik or Herron at any time prior to Modelski 's discharge . This also impresses me as highly unlikely I further have extreme difficulty in accepting Zidzik's insistence that it was only once , a few days after Modelski's discharge, that he spoke to -Local Union President Herron about Modelski On balance, including testimonial demeanor app?aisals , I regard Modelski's version as preferable and therefore accept it 11 On comparative demeanor , to the extent of any inconsistency I credit the testimony of Modelski to this effect in preference to that of Zidzik , who testified that on Tuesday , June 5, after Clover had told him that Modelski had a "problem " regarding the checkoff of dues and initiation fees, he (Zidzik ) approached Modelski and informed him in response to his (Modelski's) question that the deductions should be made if Modelski had signed an authorization, and that when Modelski showed him the clipping, Zidzik indicated it might be so "in different areas" but not "herein our own plant." 10 Modelski 's testimony to this effect . is undenied by Clover, who testified with regard to other matters LOCAL 227, AUTOMOBILE WORKERS ^ instructions of Carter's superior (Chrysler Labor Rela- tions Supervisor Sheehan), and indicated that the Union had instigated it. However, still according to Modelski, Carter also stated that Union Shop Steward Clover had called to get Modelski his job back and that Carter would let Modelski know later that morning. Further according to Modelski, at this point Union Committee- man Zidzik came on the scene and asked Modelski whether he wanted to continue working there; when Modelski said he did, Zidzik remarked, "This is why you need the union." Thereupon (still according to Modelski), Modelski charged that there were "crooked influences" at work since there was no apparent reason for his having been fired;14 at this, Zidzik accused Model- ski of being an "infiltrat[or]" and "like SDS" causing "unrest," at which Modelski left. Modelski attempted unsuccessfully to reach Carter later in the day, and was finally told by Carter's assistant to look for another job. When Modelski picked up his paycheck on Friday (June 13), and indicated to Foreman Wartella that the Union was behind his discharge, Wartella remarked, "You know you can'''t really buck the union." On the way out, Modelski asked Shop Steward Clover if the union public review board was available to him, but Clover informed him it was inappropriate; 15 and Modelski has been unsuccessful in attempting to reach the Union's Regional Director, although he apparently did speak to its Assistant Regional Director. At no time during his brief employment with Chrysler had Modelski received any'criticism from his Employer: on the contrary, it had been indicated to him that his production exceeded that expected or required. Called as General Counsel's witness, Chrysler Labor Relations Supervisor Sheehan testified that on June 10, at a regularly scheduled meeting in his office with Local Union President Herron and Shop Committee Chairman Nation (and also Chief Steward Grecu, who did not testify), Herron told Sheehan that Modelski was "doing a lot of talking" and "creating a ruckus" about union dues and the Government " Sheehan thereupon instruct- ed his assistant, Burt Road plant Personnel Representa- tive Carter, to "check out" Modelski. According to Sheehan, Carter later confirmed that Modelski "had done a lot of talking . during working hours 14 According to Zidzik, what Modelski said was that it was not the Company but "some crooked Union officials" who had lost him his job, and, when Zidzik took exception, Modelski "retract[ed]" the remark . 11 According to Clover, he told Modelski the location of the union review board as well as the union regional office, and Modelski said he was going to the NLRB i" Herron's version (supported by Union Shop Committee Chairman Nation) of this conversation is that he merely indicated that Modelski was questioning his obligation to pay the union initiation fee, and that Herron asked Sheehan whether Modelski had signed a "check- off," stating that if he had not the Company was in error to have made the "check-off'' and Modelski had aright to complain According to Herron, Sheehan then went out and returned stating Modelski had signed the "check-off" authorization Herron and Nation flatly disputed Sheehan's account as described above Upon the basis of comparative testimonial demeanor observations crediting Sheehan, I accept Sheehan's version 185 about the union dues-about the government . . . when he should have been doing his assigned work," and that Carters had terminated Modelski-an action in which Sheehan concurred (although he was empow- ered to overrule Carter). Sheehan conceded at the hearing that his Company has no rule against talking "as such," but that employees are, not supposed to allow talk to interfere with work. It is admitted by Sheehan, as well as by Carter and Foreman Wartella (both of whom also testified), that there was no deficiency'in or dissatis- faction with Modelski's work productivity. Although Modelski, as a "probationary employee" of less than 90 days' standing, was subject to discharge at the Employer's will, Sheehan conceded that he "would not have been discharged except for these complaints . . by the union officials" about "a lot of talking." And Sheehan was unable to recall a single other instance during the past 10-year period of his incumbency as labor relations supervisor over the Employer's 750 employees (currently) in the division including the Burt Road plant, in which the Union had complained to the Company about an employee's "talking." Union Shop Committee Chairman Nation was unable at the hearing to suggest any reason why, following the described union meeting with Sheehan on June 10, Shee- han instructed Carter to investigate Modelski. At a meet- ing a few days after Modelski was discharged, between Herron and Nation and Sheehan on June 13, Sheehan (according to Herron and Nation) stated he was not going to put Modelski back to work and "didn't give a reason," stating only that Modelski was just "not suitable for this type of work," and the matter was not pursued further because Sheehan "had to go some place," but Herron concedes he never brought the matter up again. 17 The testimony of Chrysler Foreman Wartella (also called by General Counsel), who impressed me as a highly credible witness, indicates that Wartella, who was Modelski's only immediate supervisor, had no signi- ficant cause for complaint about Modelski's performance as an employee."' Wartella swore that Modelski met Chrysler's production standards and that he had never had any occasion to make an adverse recommendation Herron also conceded that the Union at no time processed any grievance with the Company concerning Modelski's discharge, even though the Union "did not accept [the Employer ' s] reason " for his termination and even though it regarded Modelski as a Union member No finding is here made or implication intended that the Union was or was not under technical legal obligation to do so under the circum- stances , either under or aliunde the subsisting collective agreement, section 58(b) of which seems to require the Union to "represent proba- tionary [i e , less than 90-day] employees who have been ' discharged [even though employed for less than 31 days] ' in case the discharge is for discrimination for Union activities " (G C Exh 13,p 57) " To be sure , Wartella had had occasion to tell Modelski-as well as other employees-to "break up" conversations There is no indication who started these conversations , how long they lasted, what they were about, that they in any way interfered with production or plant operations or routines , or that they were ever in any way regarded or treated as significantly objectionable or as 'justifying even the mildest censure or reproof Wartella conceded that he had not reported this to any superior , and that he had not even himself so much as contemplated any adverse action by reason thereof 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning Modelski. Wartella testified that Modelski was the one and only case of an employee serving under Wartella who was discharged without a recommen- dation to that effect from Wartella; and that-thus uniquely in the case of Modelski-Wartella's superior, General Foreman Dudzinski, instructed Wartella to use the expression "not suitable" on Modelski's discharge form, oecause Dudzinski in turn had received instruc- tions from the personnel office to place that on Model- ski's discharge form. Chrysler's Burt Road plant personnel representative, Carter (Chrysler's labor relations supervisor, Sheehan's, subordinate), likewise called by General Counsel, tes- tified that at the direction of Sheehan on June 10 to "check out" Modelski who had been reported (according to Carter, Sheehan did not disclose by whom) to be "causing a little disturbance," Carter talked to four or five of Modelski's fellow employees,'s as well as to Modelski's Foreman Wartella, who expressed no dissatisfaction with Modelski's performance.20 Accord- ing to Carter, the "employees" (he wigs allegedly unable to identify specifically who) told him that Modelski had engaged in discussions in which he expressed his dislike of having the Company deduct union dues, and also touching on national politics. In all, according to Carter, his investigation' consisting of these conversations with the foregoing six individuals, totalled about one- half hour. He did not speak to, nor was he able to account for, his not having spoken to, Modelski; he concedes he saw nothing adverse in Modelski's personnel file.. Thereupon. Carter-according to his testimony- discharged Modelski. Carter took no notes and rendered no report on Modelski. Carter conceded that but for Sheehan's direction to him to "check out" Modelski's "talking,", he (Carter) would _ not have looked into or taken any action on it.-Finally, according to Carter, at no time prior to Model'ski"s'discharge did he discuss Modelski with an union representative, although he was aware of the Wartella abrasive situation between the Union and Modelski.21 And, like Forman Wartella, Carter also was unable to recall a single other instance of an employee whose work productivity was satisfactory 11 Carter was able to identify only two of these, and those only as "Luke" and "Reynolds," Neither testified It is conceded that "Reynolds" has acted as alternate union committeeman of Respondent Union 10 According to Carter, he also'spoke to General Foreman Dudzinski (Foreman Wartella's superior), but the nature of his conversation with Dudzinski is undisclosed There is no reason to believe Dudzinski was in possession of any facts adverse to Modelski, since Wartella had reported none and there is an absence of evidence that anybody else had or that any had otherwise come to the attention of Dudzinski, who did not testify. 21 Although Carter testified that Shop Steward Clover (as well, possi- bly, in effect, as Zidzik) asked him to consider reinstating Modelski, it is to be noted that in any event-whether or not genuinely intentioned -this would have been after'Modelski had already suffered the discharge which is here complained of as unlawfully brought about; and that, as shown above, Local Union President Herron according to his own testimony did not pursue the matter with Sheehan, nor in fact was Modelski at any time reinstated or offered reinstatement Carter swore in a pretrial affidavit to the Board's agent that on June 12 he "discussed the possibility of reinstating Modelski with Sheehan [and] recom- mended that Modelski be reinstated " but whose employment was terminated for allegedly excess talking. On June 12 (Thursday), the day after Modelski was fired, Union Committeeman Zidzik (Shop Steward Clo- ver's superior in the Local Union hierarchy) told employ- ee Janice (another temporary summer student employee, who impressed me as an essentially truthful witness), "Your friend's had it. He's all through here," adding that he (Zidzik) had told Janice that he (Zidzik) resented Modelski's having called him, as well as the Union, "crooked." In' similar vein, Janice also testified that on the next day (Friday, June 13) Zidzik further com- mented to him, in the cafeteria during lunch, that "We had to let your friend [11,fodelski] go" or "We had to have the company let your friend [Modelski] go. He was a troublemaker" who "couldn't work with any- body else."22 Finally, Janice also credibly testified that about a week or two after Modelski's discharge, Shop Steward Clover passed the remarks23 to him that Model- ski had been "rattling up the people against the union" and that it was "Too bad about your friend. That's what he gets for causing trouble." C. Rationale and'Ultimate Findings Modelski, an undergraduate'college student displaying sophistication in wordly affairs, sought and obtained temporary summer employment at the Chrysler Burt Road, Detroit, factory, after knowingly and voluntarily signing a union initiation fee and dues "check-off" authorization lawfully called for under a subsisting col- lective agreement (the validity of which is not challenged) between Chrysler and Respondent Union. If Modelski had not thus, executed- that' "check-off" alothorir.ation, he would, under the lawful provisions of the subsisting collective agreemen"t;_have had 40 days from the incep- tion of his employment to join the Union. Obviously, however, Modelski was under no obligation to wait those or any part of those 40 days; by knowingly and voluntarily executing the "check-off" authorization, he elected not to wait. The foregoing is,, however, in a sense beside the point insofar as the issue here is concerned. For reasons perhaps best known to Modelski, seemingly connected with his understanding or misunderstanding or imperfect understanding of a magazine item, he became disaffected with or unhappy over Chrysler's lawful and proper deduction of union fees from his pay pursuant to the "check-off" authorization which he had signed. Modelski translated his reaction into words of protest to the Union's officials, who were stung by and resentful at his expressed dissatisfaction over the operation of the "check-off" system, and who, in consequence thereof, I find, threatened and reported him to Chrysler's ranking labor relations official (Sheehan) with the intent, purpose, and effect of bringing about Modelski's discharge on 22 As has already been indicated , I was favorably impressed by Janice and would have difficulty in accepting the foregoing as sheer fabrication , as implied by Zidzik's denials that any of it ever took place 22 Credited by me although disputed by Clover, now a union employee LOCAL 227, AUTOMOBILE WORKERS June 11, as alleged in the complaint. The testimony of Chrysler officials clearly establishes that the Company at no time entertained dissatisfaction with Modelski's work, and that had it not been for the Union's complaint about his Union-and-check-off-related "talking" and "creating a ruckus" on those subjects, he would not have been discharged. I find that it was the Union's complaining reports to the Employer about Modelski's "doing a lot of talking"' and "creating a ruckus" about the union-fees "check-off" practices, and those reports alone, which caused Modelski's discharge. An employee, whether or not a member of a union, has the right to voice dissatisfication about unionism in general or about a particular union and' the conduct' of its affairs, without suffering reprisal in the shape of being ousted f'rom' his job because he opened his mouth. If, as was not the case here, he engages in conduct intolerably hostile to union interests and good order or inconsistent with rational maintenance of union discipline, there are remedies lawfully available to the aggrieved union. In the circumstances presented, it cannot be said that the Union was merely "prescrib[ing] its own rule's with respect to the acquisition or retention of membership" so as to fall within the protection of the proviso to Section 8(b)(1)(A) of the Act. As already indicated, the fact that Modelski may have been or was in error regardingflthe nature of the legal obligation flowing from his having freely executed the "check-off" authorization, is quite beside the point. Even if, or though, he was in total error on that subject, his right to express his disagreement or disaffection over the operation of the "check-off" system, in general or in particular, and the Union's actual or supposed role therin, is guaranted by Section 7 of the Act; accord- ingly, the exercise of that right is invulnerable to reprisal. Modelski had discussed this matter and his views con- cerning it with his fellow employee Janice, in concert with whom he proceeded to visit Union Shop Steward Clover to question and protest the same. This was, and his ensuing actions in the matter remained, protected, concerted activity which he had the right to pursue under the Act, free from interference, restraint, or coer- cion on the part of the Union so as to cause his Employer to discharge him. At the hearing, Respondent conceded that it does not contend that just because Modelski signed the "check-off" authorization, even assuming Modelski is bound by it, that Modelski had "no right to discuss these matters in the way he testified he did or to complain about it or to be dissatisfied about it." Upon the record presented '21 I find that Modelski was indeed discharged because, and only because, he discussed, was dissatisfied with, and spoke up and complained about, the "check- off" authorization system and its operation; and that his discharge for that reason, as alleged in the complaint, was directly brought about and caused by Respondent.'-' 24 General Counsel's motion, made and granted at the conclusion of the entire case, to conform pleadings to proof, was unopposed xa Respondent urges that General Counsel has failed to establish a case, in the absence of proof that Respondent made a direct demand upon the Employer to "discharge" Modelski, and that at most what 187 The Union's reporting of Modelski to Sheehan, under the circumstances shown, was cleat ly for the purpose of inducing and causing Modelski's Employer to take effective inhibitory action against Modelski, and not for commendation, approbation, or encouragement pur- poses. If perchance the Employer took stronger discipli- nary measures than the Union anticipated, nevertheless the Union, having set the disciplinary instrumentality into force, should be chargeable with the consequences, which cannot be regarded as not reasonably foreseeable. In this situation, it is the wrongdoer-the Union,- and not the wronged-the employee,-who should shoul- der the consequences. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Local 227, International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), Respondent herein, at all times material herein has been and is a labor organization within the meaning of Section 2(5) of the Act. 2. Chrysler Corporation at all times material herein has been and is an employer engaged in commerce within the meaning of, Section 2(2), (6), and (7) of the Act. 3. Assertion of jurisdication in this proceeding is prop- er. 4. By threatening Michael J. Modelski with discharge and by attempting to cause and causing Chrysler Corpo- ration'to discriminate against employees and prospective employees in regard to hire or tenure of employment, or other terms or conditions of employment, through causing said Employer to discharge ,Michael J. Modelski from its employ on June 11, 1969, and thereafter to exclude him from its employ, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of rights guaranteed by section 7 of the Act, and, has thereby engaged in and is engaging in unfair. labor prac- tices within the meaning of the "check-off" Section 8(b)(1)(A) of the Act. 5. By stating to' an employee that another employee (viz, Michael J. Modelski) had been discharged from his employment with Chrysler Corporation because he had expressed dissatisfaction with Respondent's opera- was established was that the Union merely reported certain facts about Modelski to the Employer, who thereupon exercised its own unfettered independent judgment in discharging him I cannot agree Unless there is supporting documentation-a rare phenomenon-proof of an in haec verba discharge demand by a union on an employer concerning an offending employee, is in the, nature of things unavailable without confession or evidence from a participant or eavesdropper Fair inferenc- es may nonetheless be drawn from a congeries of circumstances, particu- larly when consistent with probabilities, not otherwise credibly explained, in the light of the Board's accumulated industrial relations experience and expertise Furthermore, proof at least sufficient to support the inference here is supplied by the postdischarge admissions of' both Union Steward Clover and Union Committeeman Zidzik to the effect that it was at the Union's hands that Modelski had lost his job because of his temerity in questioning the checkoff system and-verbally tangling with the union officials 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions in connection with the "check-off" system for payment of union fees, Respondent has interfered with, restrained, and coerced, and is interfering with, restrain- ing, and coercing, employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 6 By causing Chrysler Corporation to discriminate against Michael J Modelski in the hire and tenure of his employment, or terms and conditions of his employ ment, through discharging Modelski from its employ on June Ii, 1969, and thereafter excluding him from its employ, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act 7 The aforesaid unfair labor practices and each of them affect commerce within the meaning of Section 2(6) and(7) of the Act REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act I shall recommend that Respondent be required to notify Modelski and Chrysler Corporation, in writing, that Respondent has no objection to Modelski's employment by Chrysler Corporation, and that Respondent requests Chrysler Corporation to expunge from its records any reference to Modelski's discharge on June 11, 1969, as a "not suitable" or otherwise undesirable employee I shall further recommend that Respondent be required to make Modelski whole for any loss of pay he may have suffered by reason of Respondent's unlawful con- duct, by payment to him of a sum of money equal to that which he would normally have earned as wages from Chrysler Corporation but for his discharge at Respondent's hands, less his net earnings and less any offsets (including union dues and fees) which may be due to the Union during or in relation to said period, with interest on all of the foregoing, computed in accordance with F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co 138 NLRB 716 Respondent should also be required to make Modelski whole fpr any loss of rights and incidents of his employ ment relationship with Chrysler Corporation which he may have suffered by reason of Respondent's unlawful conduct Pen and Pencil Workers Union, Local 19593, AFL (Parker Pen Company), 91 NLRB 883 Respondent should further be required to make available such records for the computation of the foregoing amounts as may be in its possession or control I shall also recommend that Respondent be required to post an appropriate notice which may also be posted by Chrysler Corporation if desired Upon the foregoing findings and conclusions and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following RECOMMENDED ORDER Respondent, Local 227, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its officers agents, and representatives shall I Cease and desist from (a) Causing or attempting to cause Chrysler Corpora- tion to discriminate against any employee within the meaning of Section 8(b)(1)(A) of the Act (b) Causing or attempting to cause Chrysler Corpora tion to discriminate against employees by discharging an employee or, in any other manner, to discriminate against employees, to encourage membership in, or activ- ity on behalf of, the Union, in violation of Section 8(a)(3) of the Act (c) Threatening any employee with discharge for expressing his views or opinions concerning the "check- off" system for payment of union fees or dues in the Employer's plant, or concerning the conduct of Union affairs (d) Stating to any employee or prospective employee of Chrysler Corporation that an employee of said Employer was discharged from his employment because he complained about or expressed dissatisfaction over the method of operation of the "check-off" system for payment of union fees or dues in the Employer's plant (e) In any like or related manner interfering with, restraining, or coercing any employee of Chrysler Corpo- ration in the exercise of any right guaranteed in Section 7 of the Act, except to the extent that any such right may be affected by any lawful provision or agreement requiring membership in a labor organization as a condi- tion of employment in accordance with Section 8(a)(3) of the Act 2 Take the following affirmative actions which are necessary to effectuate the policies of the Act (a) Forthwith notify Michael J Modelski and Chrysler Corporation, in writing, that Respondent has no objection to the employment of Modelski by Chrysler Corporation, and does not oppose his reinstatement, reemployment, or the restoration of his seniority, if any, and all other i fights and privileges, if any, to the extent they may have existed on June 11, 1969 (the date of his discharge) (b) Forthwith request Chrysler Corporation to expunge from its records any and all references to its discharge of Michael J Modelski on June 11, 1969, as a "not suitable" or otherwise undesirable employee (c) Make whole Michael J Modelski for any loss Suffered as a result of the discrimination against him, in accordance with and in the manner set forth in the section of this Decision entitled "The Remedy" of which this Recommended Order or Order forms a part (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all such records, reports, and documents as may be in its possession, custody, or control, necessary or appropriate, to analyze the amount of backpay and LOCAL 227, AUTOMOBILE WORKERS other sums or accruals due or which may otherwise be involved under the terms of this Decision (e) Post at Respondent's business offices and meeting places, copies of the attached notice marked "Appen- dix "26 Copies of said notice, on forms provided by the Regional Director for Region 7, shall be duly signed and posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspic- uous places, including all places where notices to mem- bers are customarily posted Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material (f) Return to the Regional Director for Region 7, for posting by Chrysler Corporation, if willing, copies of the notice signed as aforesaid (g) Notify the Regional Director for Region 7, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith 27 26 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 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 In the event that the Board s Order is enforced by a judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " In the event that this Recommended Order be adopted by the Board this provision shall be modified to read Notify said Regional Director in writing within 10 days from the date of this Order what steps Respondent has taken to comply herewith APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had the opportunity to present evidence and arguments, the National Labor Relations Board has decided that this Union has violated the National Labor Relations Act by causing Michael J Modelski to be discharged by Chrysler Corporation from his job at the Chrysler Burt Road Plant in Detroit, on June 11, 1969, because he complained about the operation of the union-fees check off system We have been ordered to post this notice WE WILL NOT cause or attempt to cause Chrysler Corporation to discharge or otherwise discriminate against any employee or prospective employee 189, because he complains or expresses dissatisfaction about the union-fees check off system WE WILL NOT threaten any employee with dis- charge for expressing his views or opinions about the check off system or the conduct of union affairs WE WILL NOT state to any employee or prospec- tive employee that a Chrysler employee was fired because he complained or expressed dissatisfaction about the union fees check-off system WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee of Chrysler Corporation in the exercise of any right guaranteed in Section 7 of the National Labor Relations Act as amended This leaves unaffected the obligations of any employee or prospective employee under any lawful union shop provision of any collective agreement between this Union and Chrysler Corporation WE WILL notify Michael J Modelski and Chrysler Corporation that this Union has no objection to the employment, reinstatement, or reemployment of Modelski by Chrysler Corporation, and WE WILL request Chrysler Corporation to remove from its records all references to Modelski as having been discharged on June 11, 1969, as a "not suitable" or otherwise undesirable employee WE WILL make Michael J Modelski whole for any loss of earnings and other employment accruals if any (minus union dues and fees) suffered by reason of the discrimination against him when and since he was discharged by Chrysler Corporation on June 11, 1969 Dated By LOCAL 227, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200