General Motors Corp.

GENERAL MOTORS CORPORATION General Motors Corporation, Packard Electric Divi- sion and Local No. 717, International Union of Electrical, Radio and Machine Workers, IUE- AFGCIO. Case 8-CA-104 18 September 23, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 21, 1977, AdmiGstrative Law Judge George Norman issued the attached Decision in this proceeding. Thereafter, Respondent filed a brief in support of the Administrative Law Judge's Decision, and the General Counsel filed exceptions to the Administrative Law Judge'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 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge except as herein modified. We agree with the Administrative Law Judge that Respondent's offer to impose a certain (lesser) penalty on the condition that an employee waive her right to file a grievance under the contract, followed by Respondent's announced increase of the penalty to 60 days because the employee refused to waive filing a grievance, was an unlawful interference with the employee's rights guaranteed by Section 7 of the Act in violation of Section 8(a)(l), and that Respon- dent's stated increase in penalty following the employee's refusal to waive her right to file a grievance under the contract was an act of discimina- tion against her in violation of Section 8(a)(3) of the Act.' We do not agree, however, with the Adminis- trative Law Judge's conclusion that, in view of the isolated nature of these violations, Respondent has engaged in no unfair labor practices which warrant the issuance of a remedial order. Notwithstanding the fact that the record revealed only one instance of Respondent's unlawful conduct, the right to file a grievance with one's collective-bargaining represen- tative over wages, hours, and worlung conditions has been a basic statutory right. We consider Respon- dent's interference and discrimination to be too serious to be so summarily disposed of. That they appear here as "isolated" violations of the Act does not lessen their adverse and far-reaching effect.2 I The stated mcreased penalty was not actually imposed. Interlake, Inc.. 218 NLRB 1043 (1975). 232 NLRB No. 53 In view of the fact that these violations have occurred, we agree with the General Counsel that it will effectuate the policies of the Act to issue a remedial order herein. We cannot be sure that Respondent's interference with its employees' right to file a grievance and discrimination against employees for the refusal to waive such right will not agAn bccur. Therefore, in order to assureprotection of this right to Respondent's employees, we shall accordingly issue an appropriate remedial order for the violation found.3 Substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. Respondent's offer to impose a certain (lesser) penalty upon the condition that an employee waive her right to file a grievance with respect thereto, followed by Respondent's announced increase of the penalty to 60 days because the employee refused to waive filing a grievance, was an unlawful interference with the employee's right guaranteed by Section 7 in violation of Section 8(a)(l) and Respondent's an- nounced increase in the penalty following the employee's refusal to waive her right to file a grievance under the contract was an act of discrimi- nation against her in violation of Section 8(a)(3) of the Act." ORDER Pursuant to Section lqc) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, General Motors Corporation, Packard Electric Divi- sion, Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the right of its employees to file a grievance under the grievance-arbitration provi- sions of its collective-bargaining agreement. @) Discouraging union activity by announcing that it would impose a greater penalty following an employee's refusal to waive the right to file a grievance under the grievance-arbitration provisions of the collective-bargaining agreement. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self-organization to form labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 1-uxuray of New York Division of Beaunit Corporation. 185 NLRB 100 (1970). 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its place of business in Detroit, Michigan, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director Region 8, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER MURPHY, dissenting: Unlike my colleagues, I would adopt the Adminis- trative Law Judge's dismissal of the complaint herein in its entirety, although I do not agree totally with his rationale. Thus, the Administrative Law Judge found that Respondent's threat of more severe punishment if a grievance were filed was in violation of the Act. While I would agree in an appropriate situation this conclusion would be warranted, I do not find this to be such a case. For, Respondent's conduct amounted to a total retraction of that threat, and I would therefore not find that Respondent thereby violated the Act.5 Thus, the dispute was, in fact, the subject of a grievance and resolved under the contractual grievance procedure, and the penalty was reduced substantially as a result thereof. Further, I note, as did the Administrative Law Judge, that Respondent's conditional offer was made to the union representa- tive rather than to the employee involved, and there is no other evidence of union animus on the part of Respondent. Accordingly, I find no violation of the Act and hence no remedial order is warranted. In the event that this 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 read "Posted Pursuant to a Judgment of the Un~ted States Court of Appeals Enforcing an Order of the National Labor Relations Board." "ee American Federation of Muricians, Local 76, AFL-CIO (Jimmy Wake& Show), 202 NLRB 620 (1973), where the Board relied on the fact that the conduct involved had been so substantially remedied by respon- dent's subsequent conduct that there was no basis for either a finding of v~olation or a remedial order. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with the right of our employees to file a grievance under the grievance- arbitration provisions of the collective-bargaining agreement. WE WILL NOT discourage union activity by announcing that we will impose a greater penalty for the refusal of our employees to waive their right to file a grievance under the grievance- arbitration provisions of the collective-bargaining agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. DECISION GEORGE NORMAN, Administrative Law Judge: On September 9, 1976,' Local No. 717, International Union of Electrical, Radio and Machine Workers, IUE-AFLCIO, herein called the Union, filed with the Regional Director for Region 8 of the National Labor Relations Board, herein called the Board, a charge alleging that General Motors Corporation, Packard Electric Division, violated Section 8(a)(l) and (3) of the National Labor Relations Act, herein called the Act, by various acts and conduct. On October 22, a complaint was issued on behalf of the Board's General Counsel by the said Regional Director. Respon- dent duly answered the complaint, included a number of affirmative defenses, and denied that it had violated the Act as alleged. On the issues thus joined, the matter came on for hearing before me at Warren, Ohio, on January 26, 1977, and was closed on the same day. All parties were present at the hearing and were represented by their chosen representatives. All had an opportunity to call and examine witnesses and to adduce relevant and material evidence. After the close of the hearing, a brief was filed by 1 Unless otherwise indicated, all events occurred in the year 1976 GENERAL MOTORS CORPORATION 337 Respondent, but the counsel for the General Counsel disclosed that he would not file a brief. Upon the entire record in this case, including my observation of the witnesses, and upon consideration of Respondent's brief, I make the following: I. THE BUSINESS OF RESPONDENT General Motors Corporation is a Delaware corporation engaged in the production of automotive and other equipment. Its principal offices are located in Detroit, Michigan. It has manufacturing and assembly plants and ofices in several States of the United States. General Motors Corporation, Packard Electric Division, herein called Respondent, is an unincorporated division of General Motors Corporation and is located in Warren, Ohio. It is the only operation involved in this proceeding. Respondent is engaged in the manufacture, production, and assembly of electrical wiring harnesses for automo- biles. Annually, in the conduct of its business, Respondent ships from its Warren, Ohio, plant goods valued in excess of $50,000 directly to points located outside the State of Ohio. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION Local No. 717, International Union of Electrical, Radio and Machine Workers, IUE-AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Facts On the afternoon of August 31, a disciplinary interview was held at Respondent's Warren, Ohio, plant regarding the unexplained absence of employee T. Ceja on the previous 3 working days. The purpose of the interview was to give the employee an opportunity to explain her absence prior to the contemplated assessment of discipline. In attendance were employee Ceja, with her union representa- tives, District Committeeman David Hipple and Zone Committeeman Joseph Reedy. Hipple and Reedy are also the representatives of the Union and employees in Respondent's Warren, Ohio, plant. Representing Respon- dent during this interview were T. Zucco, the supervisor of the department in which Ceja worked, Kenneth Rambo, a general foreman and Zucco's supervisor, and F. Nicpon, Respondent's labor relations representative. At the conclusion of the interview, Ceja was told to return to her job and that Respondent would be getting back to her after reviewing the statements made at the interview. After Ceja left, Rambo commented to Hipple and Reedy regarding Ceja's situation, expressing the view that based upon Ceja's past disciplinary record the next There is no explanation for the reducrion in punishment from the 60 days announced by Rambo and the 30 days given by Zucco. "hop Rule 6 concerns habitual absences without reasonable cause. ' These paragraphs state that management will not mterfere w~th employees because of any lawful union activity znd that management will step would normally be discharge. Neither Hipple nor Reedy commented and the parties agreed to resume discussions of the matter the next day. The following morning, September 1, Hipple and Reedy again met with Rambo at Rambo's desk between 7:30 and 8 a.m. Rambo proposed that Ceja be issued a discipline which would consist of layoff from the balance of her shift that day and 45 days of layoff on her record, but actually to be off work 15 days only with no right to protest, i.e., no right to file a grievance under the cdlective-bargaining contract grievance procedure. Hipple told Rambo that he couldn't agree to it, that he would have to talk to Ceja, whereupon the meeting concluded. Hipple told Ceja what Rambo proposed as a punishment including the condition that she forego her right to grieve on the matter. Ceja told Hipple to do whatever he thought was best for her. Later that morning, Hipple and Reedy again met with Rambo at his desk. Hipple told Rambo that he would not agree to waive Ceja's right to file a grievance. Rambo then indicated that he was going to go ahead and issue the discipline and that it would be the balance of that day's shift and 60 days actual layoff (60 days on her record and 60 days off work). Whereupon, Hipple told Rambo that they were going to file a gnevance on the matter. Hipple went back to the department where Ceja was working and was there while Foreman Zucco issued Ceja the disciplinary paper which consisted of 30 days' layoff and a pink pass to leave the plant.2 Ceja and Hipple left the plant and proceeded to write up two grievances. The first grievance protested the penalty as unjust for violating Shop Rule 6.3 The second grievance protested an alleged breach by management of paragraphs 5 and 5(a) of the collective-bargaining agreement between General Motors Corporation and the IUE.4 These griev- ances were processed according to the contract grievance procedure to the third step and were remanded back to the first step for settlement.5 The grievances were finally settled between Rambo and Hipple on a basis that Ceja would only serve 7 days of the 30-day discipline and, if she did not violate Shop Rule 6 again within the next 6 months, her record would be cleared of this discipline. IV. DISCUSSION AND CONCLUSIONS The General Counsel contends that the discussions that Ceja's representatives had with Rambo were part of the disciplinary interview and not the first step of the grievance procedure as contended by Respondent, and that by conditioning the proposed penalty on the employee's waiver of her right to file a grievance, followed by the announced increase in the penalty because the employee refused to waive her right, constitute a violation of Section 8(a)(l) and (3) of the Act. Respondent, on the other hand, contends that the discussions were really the first step of the grievance procedure and that it was proper for Rambo to try to resolve the entire matter during those discussions as he apply the provision of the agreement equally to all employees regardless of race, color, sex, religion, age, or national origin. The third step grievance procedure consists of a meeting between the labor relalions department, the plant labor relations representative. the unlon zone committeeman, and the union subchairman. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would in handling any grievance. Respondent contends further, that if there was a violation, that it was de minimis and an isolated instance. Furthermore, the whole issue was grieved and resolved citing Collyer and Spielberg. 6 Respon- dent further argues that, in either event, no remedy is appropriate in this case. I agree with the General Counsel that the discussions were a disciplinary interview and not the first step of the grievance procedure. Rambo did not condition the im- posed punishment on the employee's not carrying the matter to the next step of the grievance procedure. He talked in terms of filing a grievance. The discussions were initiated by Respondent. Respondent does not initiate grievances; only unit employees initiate grievances. No grievance would have been filed in this case prior to the imposition of a penalty. It would have been premature. The penalty was not assessed until after the disciplinary discussions terminated. Rambo's offer to impose a certain penalty upon the condihon that the employee walve her right to file a grievance with respect thereto, followed by his announced increase of the penalty to 60 days because the employee refused to waive filing a grievance, is an unlawful interference with the employees' rights guaran- teed by Section 7 of the Act. Moreover, the stated increase in penalty following the employees refusal to waive her right to file a grievance under the contract is an act of discrimination against her in violation of Section 8(a)(l) and (3) of the Act. However, even though I conclude that the Act was violated, there are circumstances in this case that persuade against recommending a remedy concerning this single isolated violation. The circumstances are these: (1) that employee Ceja merits some form of punishment for her unauthorized absences is not disputed; (2) Rambo ap- peared to have acted impulsively when he stated "60 days" after the employee's refusal to waive her right to file a Colher Insulated Wire, A Guljond Western Systems Co., 192 NLRB 837 (1971); Spielberg Monujocturing Company, 112 NLRB 1080 (1955). grievance; in fact, although the record is not clear, he apparently instructed Foreman Zucco to assess only 30 days' penalty, which he did; (3) Rambo did not communi- cate the conditional offer directly to the employee, but, rather, to her representative; (4) the alleged violation complained here was gneved and resolved under the contract grievance procedure; (5) the grievances were resolved by Respondent by reducing substantially the assessed penalty to a layoff of only 7 days with an opportunity for the employee to clear her record by not repeating a violation of the rule on absenteeism; and (6) there is no evidence of animus or acts of reprisal on Respondent's part. In view of the foregoing and Respondent's good contractual relationship with the Union, including its demonstrated coopera6ve attitude in administering the agreement, and the absence of any similar conduct with respect to any other employee, I do not believe that a remedy of this single isolated violation should be required. I will, therefore, recommend that the complaint in this matter be dismissed in its entirety. Country Cupboard Corporation, 179 NLRB 53 ( 1 %9). Upon the basis of the foregoing findings of fact, and the entire record in this case, I make the following: 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has engaged in no unfair labor practices warranting the issuance of a remedial order. [Recommended Order for dismissal omitted from publi- cation.]