General Motors Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Motors Corporation-New Departure Hyatt Bearings Division and Viola Foster. Case 22-CA- 7188 January 10, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE On July 27, 1977, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel contends that the Administrative Law Judge failed to make specific credibility findings in compliance with the Adminis- trative Procedures Act. 5 U.S.C. § 557(c) which requires that "all decisions . . .shall include a statement of. . .(A) findings and conclusions, and the reasons or basis therefor, on all the matenal issues of fact, law or discretion presented on the record...." As the General Counsel concedes, the Administrative Law Judge did credit Supervisor Wanella Johnson in that the Administrative Law Judge found "that Respondent discharged Foster for the reasons asserted by Johnson." While it may be "bad practice to use a 'boiler plate footnote' or other generalized finding relating to credibility," M d S Co. Inc., 108 NLRB 1193, 1194 (1954), in the instant case "we are not convinced that the clear preponderance of all the relevant record evidence shows that the [Administrative Law Judge's] resolution was incorrect." DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Upon charges filed by Viola Foster, a complaint issued by the General Counsel, and an answer filed by Respondent, a hearing was held on February 3, 1977, in Newark, New Jersey. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation, having its princi- pal place of business in Detroit, Michigan, and various other business locations throughout the United States, including a plant in Clark, New Jersey, which is engaged in the manufacture, sale, and distribution of ball bearings and related products. I find, as the parties agree, that Respon- dent is an employer within Section 2(6) and (7) of the Act. II. THE LABOR OROANIZATION INVOLVED United Automobile, Aerospace and Agricultural Imple- ment Workers of America, Local 736, is a labor organiza- tion within Section 2(5) of the Act. New Departure - Hyatt Bearings Division of General Motors Corporation, 192 NLRB 927 (1971). IL. THE UNFAIR LABOR PRACTCE This case principally concerns the discharge of Charging Party Viola Foster at Respondent's Clark, New Jersey, plant on August 3, 1976.1 This plant is covered by Respondent's collective-bargaining agreement with Inter- national Union, UAW; Local 736 is the International Union's affiliated local organization at this plant. Respon- dent and the UAW have been in a contractual relationship for more than 30 years. The operative contract provides that newly hired em- ployees are regarded as "temporary" until they acquire seniority and that seniority is acquired by working 90 days during a period of 6 continuous months. New employees undergo a 21-day evaluation period by their immediate supervisors, and those deemed unsuitable are terminated. New hires may also be counseled or discharged during their first 30-day period. The contract contains a union- shop provision, and also provides, in effect, that claims by temporary employees may be taken up as grievances under the contract after 30 days' employment. Foster was discharged within 30 days. Foster's first day of employment was on July 6, and she was assigned to the second shift (3 to 11:30 p.m.) in department 655 under Foreman George Morgan. Her job was to roll and package bearings. At the beginning of her shift the next day (July 7), Foster had a conversation at her work station with Union Committeeman Paul Oliver. Oliver did not have union responsibilities in department All dates herein are in 1976 unless otherwise stated. 176 GENERAL MOTORS CORPORATION 655 at the time, and his conversation with Foster was of a personal nature. Wanella Johnson was a supervisor on the first shift (7 a.m. to 3:30 p.m.). Foster testified that Johnson purported- ly approached her immediately following Foster's July 7 conversation with Oliver and warned her against talking to union committeemen before the end of her 90-day proba- tionary period. Morgan has responsibility for shift changes in depart- ment 655, and Morgan instructed Foster on July 10 (Saturday), to report to department 655's third shift (11 p.m. to 7:30 a.m.) beginning on July 12 (Monday). Foster did so, and she continued rolling and packaging bearings under Supervisor Thomas Stokes. While working on the second day (July 13) on the third shift, Foster was approached by, and she then had a conversation with, Union Committeeman Peter Terranova and two other employees. Foster testified that Johnson came to her immediately after Terranova left and purportedly com- mented that, "I see you are still talking to committeemen." Foster finished out the week of July 12 on the third shift, and beginning on Monday (July 19), she was assigned to "noise testing" on the first shift under Johnson's supervi- sion. During that entire week, so far as the record indicates, Foster had no conversations with any union representa- tives. Johnson 2 testified that on Friday (July 25) she concluded that Foster was an unsatisfactory temporary employee and should be terminated. Johnson was busy that day - she was leaving on vacation on the following day - and she did not get around to implementing her decision respecting Foster. She also had wanted to discuss the matter with her own plant supervisor, James Armstrong, before taking the discharge action. Johnson returned from vacation on August 2, but was not able to see Armstrong until August 3. After reviewing the matter with Armstrong, Johnson terminated Foster later that day. Foster and Committeeman Oliver testified that they had a conversation about a half hour before her discharge and that Johnson observed this conversation. Johnson denied having viewed this incident. Foster also testified, and Johnson denied, that Johnson purportedly told her during the separation meeting that she was being fired mainly for "always talking to committeemen." John- son told Foster, according to Johnson's testimony, that Foster "had proved to be an unsatisfactory employee." Johnson further testified that employees are permitted to talk to committeemen any time they so desire and she also flatly denied having ever seen Foster talk to a union committeeman and she also denied having ever discussed such a matter with Foster. The Parties' Conflicting Contentions Respecting the Discharge Despite the long bargaining relationship between Re- spondent and the UAW, and even though their operative 2 Johnson and Foster are black. I mention this only because Charging Party's brief so describes Foster. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, contract contains a union-security provision under which employees must join the UAW, the General Counsel alleges that Respondent discharged Foster for union reasons on August 3. He predicates this contention on Johnson's purported comments to Foster regarding com- mitteemen and on Johnson's having purportedly observed Foster's other conversations with committeemen. Apart from these purported incidents, there is no showing that Respondent harbors any union animus or that either Johnson or Johnson's own supervisor, Armstrong, with whom Johnson discussed the matter, is antiunion or opposed to employees associating with committeemen. Nor is there any showing of internal union dissension or that Foster's discussions with committeemen which were pur- portedly observed by Johnson resulted in union complaints to Respondent; nor is there any showing of any other special circumstances which might take this situation out of the usual run of discrimination cases. Compare, e.g., General Motors Corporation, 218 NLRB 427 (1975), enfd. 535 F.2d 1246 (C.A. 3, 1976); New Departure - Hyatt Bearings Division of General Motors Corporation, 192 NLRB 927, 928-930 (1971); Stone & Webster Engineering Corp., 209 NLRB 783, 784-785 (1974). In addition to denying the committeemen comments and observations attributed to her, Johnson described her dissatisfactions with Foster. Johnson thus testified, with details, that Foster handled materials carelessly, took an excessive number of unduly long breaks, quit work early, and failed to comply with safety procedures. Foster, in turn, denied the particularized items of Johnson's various criticisms, which, in the circumstances of this case, I consider unnecessary to explicate. We thus have a case where most, if not all, of the General Counsel's and the Respondent's evidentiary items in support of their respec- tively claimed reasons for the discharge of probationer Foster are in dispute. This has been a difficult case to decide, and I have read and reread the record, and considered and reconsidered the briefs filed here. Upon consideration of all these matters, and not with complete assurance, I find that Respondent discharged Foster for the reasons asserted by Johnson. And I conclude that the General Counsel has not convinced me by a preponderance of credible evidence that Respondent discharged or threatened Foster because of her conversations with union committeemen or for any other union considerations. I shall accordingly recommend that the complaint be dismissed. Upon the foregoing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 It is ordered that the complaint be dismissed. conclusions, and the recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 177