Auto Workers Local 2017 (Federal Mogul)

AUTO WORKERS LOCAL 2017 (FEDERAL MOGUL) Local 2017, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (Federal Mogul Workers Association) (Federal Mogul Corporation) and Floyd Beard, Jr., Robert Luce, and Marcus Gardner. Case 7-CB-6509 30 April 19F87 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 23 May 1986 Administrative Law Judge Arline Pacht issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to- affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER -, The National Labor Relations Board adopts the recommended Order of the' administrative law judge and orders that the Respondent, Local 2017, International Union, United Automobile, Aero- space and- Agricultural Implement Workers of America (UAW), ' Greenville, Michigan, its officers, agents, and representatives, shall take the action set forth in the Order. 1 We' agree with the judge's conclusion that the Respondent violated Sec. 8(b)(1XA) by reprimanding members Beard, Luce, and Gardner be- cause they filed unfair labor practice charges with, the Board. We, fmd that her , analysis of the Respondent's motivation is consistent with Wright Line, 251 NLRB 1083 (1980), enfd. on other, grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and Limestone Apparel Corp., 255 NLRB 722 (1981). See Mine Workers Local 2202 (Old Devon Corp.), 282 NLRB 106 (1986). In considering the Respondent's Wright Line defense, Members Babson and Stephens do not rely on the judge's analysis under 'NLRB v. Marine & Shipbuilding Workers, 391 U.S. 418 (196$). In that case, no question of dual motive was presented . The union there acknowledged that it had ex- pelled a member because the member had filed an unfair labor practice charge against the union. The question in Marine & Shipbuilding Workers was whether the union's action, standing alone, was justified for union institutional reasons. In the present case, by contrast, the Respondent denies that it reprimanded the three members for filing unfair labor prac- tice charges and asserts instead that it reprimanded them because they di- vulged internal union matters to the Employer in violation of the Union's constitution. Because dual motives are ascribed to the Respondent here, Members Babson and Stephens find that a Wright Line analysis is appro- priate and that a Marine & Shipbuilding Workers analysis is inapposite. Cf. Operating Engineers Local 381 (Building Trades Employers), 148 NLRB 679 (1964). Howard M. Dodd, Esq., for the General Counsel. A. Robert Kleiner, Esq., of Grand Rapids, Michigan, for the Respondent. DECISION 799 STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge.. Based on charges filed on 28 May 1985, as amended on 2 July, a complaint issued on 23 July 1985 alleging that Local 2017, International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW) (Respondent or Local 2017) violated Section 8(bXl)(A) of the National Labor Relations Act (the Act) by reprimanding the above-named Charging Parties be- cause they filed unfair labor practice charges with the National Labor Relations Board - (the Board). The Re- spondent filed a timely answer denying it, had violated the Act. A trial was held before me in Grand Rapids, Michi- gan, on 18 February 1986. On the entire 'record, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Federal Mogul Corporation (the Employer), a Michi- gan corporation with an office and place of business in Greenville,' manufactures, sells, and distributes automo- tive parts and related products. During the year ending 31 December 1984,'a period representative of its oper- ations during all times material herein, the Employer, in the course of its business operations, manufactured, sold, and distributed at its Greenville, Michigan plant products valued in excess of $50,000 which it shipped directly to points located outside the State. Accordingly„ the com- plaint alleges, the Respondent admits, and I fmd that Federal Mogul Corporation is an employer within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent, Local 2017, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. It. ALLEGED UNFAIR LABOR PRACTICES ,For many years, the production and maintenance em- ployees at the Employer's Greenville facility were repre- sented by the Federal Mogul Workers Association (FMWA), an independent labor organization. Early in 1984, the UAW proposed to FMWA's leadership that they consider affiliation. Subsequently, on 8 September 1984, FMWA held a special membership meeting to con- sider and vote on the affiliation issue. During this meet- ing, Marcus Gardner, one of the Charging Parties, openly expressed his opposition to the joinder. Although the 500 employee-members differed, affiliation was ap- proved,by a vote of 170 to 150. By letter dated 10 Sep- tember 1984, the Union formally notified the Employer of the outcome and pledged continued commitment to the extant collective-bargaining agreement. Subsequently, at the next union meeting on 118 Septem- ber, the Local's executive committee approved a request 1 The Employer has plants in other States but only the Greenville, Michigan facility is involved in this proceeding. 283 NLRB No. 122 800 DECISIONS 'OF THE NATIONAL LABOR RELATIONS BOARD made by the union leadership for discretionary use of $25,000 to cover various expenses. The following morn- ing, Personnel Manager Lawrence approached Union President Dave Hondorp on the shop floor2 and accused him of "ripping off' the Union's treasury of $25,000 and amending -the Union's constitution and bylaws, thereby failing to represent the employees who had elected him. By letter sent the same day,- the Employer rejected the Union's request, for recognition, insisting that "the fair and equitable thing to do is to have a vote of the mem- bership of the Federal-Mogul Workers' Association in the plant" under the aegis of the NLRB. Given the- Employer's position, the Union refused to participate with management in grievance-resolution meetings. Consequently, on 9 October, the Company filed-an unfair labor practice charge with the Board al- leging that the FMWA was unlawfully refusing to meet with it to resolve grievances and was attempting to coerce the Company into granting recognition in contra- vention of the parties' collective-bargaining agreement. In the charge, the Employer defended its refusal to rec- ognize the affiliated Local asserting that it would "recog- nize the UAW only after satisfactory proof that a demo- cratically determined majority of the effected [sic] em- ployees so desire." Two days later, on 11 October 1984, the Charging Parties, Gardner, Luce, and Beard, also filed charges with the Board alleging that the Union's governing body, had improperly conducted the affiliation vote, sought discretionary use of $25,000 of FMWA's assets, and colluded with UAW organizers. Hondorp testified that, after receiving copies of these charges, he noted they were similar in content to the ac- cusations which Lawrence leveled at him on 19 Septem- ber. Accordingly, Hondorp deduced that the Charging Parties must have supplied Lawrence with the informa- tion which he used to denounce him. Hondorp then ac- cused Lawrence directly of meddling in union affairs and of goading the employees into filing the unfair labor practice charges. Lawrence denied that he had instigated these matters and, instead, without naming names, claimed that employees had sought him out on two occa- sions to voice their dissatisfaction with the affiliation vote. By letter dated 22 October 1984, Hondorp received notice that the Regional Director had approved with- drawal of the charges filed by the three employees. Sub- sequently, the Employer also withdrew its charge.3 Nev- ertheless,, Hondorp advised his fellow union officers of his recent exchange . with Lawrence. Apparently as a result of Hondorp's report, internal union charges were preferred against,the Charging Parties on 25 October ac- cusing them of violating the following provisions of the Union's constitution and bylaws (G.C. Exh. 9): 2 Hondorp was a Federal Mogul employee for 27 years prior to the Instant hearing 2 Although the charges were withdrawn, FMWA, apparently bowing to pressures exerted by the Company and dissidents , announced on 26 November that it would conduct a second vote on the affiliation ques- tion The vote; taken at a 15 December meeting, decidedly approved the affiliation. 52. Internal Grievance Policy (a) Any member may be fined, suspended, dis- qualified from holding office or expelled from the Union (d) For disclosing to any employer or their repre- sentative or any person other than a fellow member any of the decisions or proceedings of the Federal- Mogul Workers' Association which have not been publicly disclosed by the Union. (e) For circulating or causing to be circulated false or slanderous statements about the Association or any officer or member thereof, or for causing to be circulated any statements condemning any deci- sion rendered by the Association. Beard, Gardner, and Luce were notified of the charges against them but not of the specific conduct which alleg- edly gave rise to them.4 A hearing on the internal Lunion grievances was held on 16 March 1985. On the advice of counsel, none of the Charging Parties chose to attend the hearing.5 Therefore, Hondorp was the only witness at this proceeding.' He described his second conversation with Lawrence on 19 September to the panel members and also told them that FMWA's former attorney had warned him that charges might be filed by members seeking to contest the affiliation with the UAW. At the conclusion of this hearing, the Respondent decided to issue reprimands to Beard, Luce, and Gardner for "con- duct unbecoming a 'union person." In addition, Hondorp wrote and posted a memo to all union members entitled "RESULTS OF INTERNAL GRIEVANCE," which announced, -inter alia, `that "the Board decided to issue a letter of reprimand'to each of these members" (that is, to Beard, Luce, and- Gardner) stating that their actions were unbecoming and slanderous to our Union and mem- bers of the Top Bargaining Committee." At the trial in this matter, the General Counsel asked Hondorp to explain precisely what he meant by the word "slanderous." In response, Hondorp explained that he considered' slanderous the comments that union offi- cials had "ripped off the' Treasury" and unlawfully amended the Union's constitution and bylaws, the same comments which appeared in the charges- filed with, the Board. At the same time, he denied that the reprimands had anything to do with the Charging Parties' opposition to the affiliation. However, in an affidavit provided to a Board agent on 11 June 1985, Hondorp gave a different slant to the word "slanderous," averring there that he "was referring to allegations by Gardner, Luce, and Beard that our affiliation election was not proper and I meant by this their actions that made the, union look bad." Significantly, Hondorp failed, to mention the 19 September encounter in his pretrial statement. The unfair labor practice charges giving rise to the complaint in this case grow out of the reprimands issued to the Charging Parties. '' Subsequently, the charge that they had violated provision 52(e) was dropped. 5 At the instant trial, the Charging Parties denied having conferred with Lawrence AUTO WORKERS LOCAL 2017 (FEDERAL MOGUL) Discussion Settled law holds that a Union violates the Act when it resorts to restraint or coercion to prevent a member from filing unfair labor practice charges with the Board. NLRB v Marine & Shipbuilding Workers, 391 U.S. 418 (1968). Here, contrary to the . allegations of the com- plaint, Respondent contends that it did not reprimand the Charging Parties for reasons condemned by the Act, but solely because they divulged internal union matters to a management representative in contravention of the FMW'A's constitution. Thus, the sole question presented by this case is whether the discipline imposed on the Charging Parties was an impermissible intrusion on rights protected by the Act or nothing more than the proper exercise by the Local of its authority to discipline errant members for misconduct in a wholly internal union matter. On- the basis of the entire record, I con- clude that the Union was predominantly, if not wholly, motivated by a desire to penalize the Charging Parties because they resorted to Board processes. I reach this conclusion for the following reasons: As Hondorp admitted, the allegations that Gardner, Beard, and Luce filed with the Board on 11 October mirrored the accusations which Personnel Manager, Law- rence leveled at him on 19 September . However, the Re- spondent contends that the Union reprimands were im- posed solely because the Charging Parties divulged in- formation to the Employer and had nothing to do with their unfair labor practice charges. Thus, the encounter between Hondorp and Lawrence on 19 September as- sumes critical importance . Yet, as the General Counsel showed, Hondorp failed to mention this allegedly impor- tant exchange with the personnel manager in his pretrial affidavit, which he provided to a Board agent at a point in time when his recollection of events should have been much fresher than it was at the instant trial . It follows, therefore, that the 19 September meeting could not have figured prominently, if at all, in Respondent's decision to discipline the Charging Parties, Respondent further contends that the unfair labor practice charges filed with the Board entered into the Union's disciplinary action only , to the extent that it ex- posed those who met with Lawrence on 19 September. This contention, too, is unconvincing. As Hondorp read- ily acknowledged, neither he nor Lawrence identified any employee who met with the personnel manager on 19 September. Horidorp even stressed in his testimony that Lawrence did not indicate the number of employees who met with him. Because Rondorp admittedly knew that some 150 employees had Opposed the affiliation, he could not have reasonably concluded that the employees who signed the Board charges were the same or the only members who divulged union matters to the Employer. The Respondent made no further inquiries to determine the identity of those who were suspected of collaborat- ing with management. Instead , the executive committee rushed to judgment and was content to impose discipline solely on the three persons who had the temerity to file Board charges. Accordingly, had these employees not taken this action, it is fair to infer that the 'Union would not have singled them out for disciplinary action. 801 Further, although Hondorp attempted to deny that the employees' opposition to the affiliation played any role in the Union's disciplinary decision, he had to retract when shown- a flatly contradictory statement in his -pre- trial affidavit. Clearly, Hondorp's affidavit together with the Union's notice to the employees of the second affili- ation election (see G.C. Exh. 7) reveal that the Respond- ent was displeased with those who pressured the Union into conducting another vote. In that notice, Respondent placed the blame for a second vote squarely on the shoulders of the Company and "its allies." But from Re- spondent's perspective, the Charging Parties were the only avowed allies of management and it was their unfair labor practice charges that apparently played a large part in provoking the second affiliation vote. Given these cir- cumstances, it is likely that the union leadership was more concerned and chagrined with the unfair labor practice charges than they were with the fact that un- identified employees may have conferred with Law- rence. At the very least, it is reasonable to conclude that the Union viewed the charges as woven closely into a fabric of events which caused it public embarassment and compelled it to rerun the affiliation vote. The Respondent may well have considered the Charg- ing Parties' conduct as evidence of disloyalty to the Union and a matter requiring discipline. However, the Union's interest in maintaining solidarity must give way here where an overriding policy of the Federal labor laws also is implicated. Any coercion used to discourage "access [to the Board] is beyond the legitimate interests of a labor organization." See NLRB v. Marine & Ship- building Workers, supra at 424. Accordingly, by issuing reprimands to the Charging Parties for engaging in such concerted protected activity, the Respondent violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Federal Mogul Corporation is now and has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act; it will effectuate the purposes of the Act for juris- diction to be exercised herein. 2. The Respondent, Local 2017, International Union, United Automobile,' Aerospace and Agricultural Imple- ment Workers of America (UAW), is and has been at all times material herein a labor organization with in the meaning of Section 2(5) of the Act. 3., By reprimanding Floyd Beard Jr., Robert Luce, and Marcus Gardner because they filed unfair labor practice charges with the Board, the Respondent has violated Section 8(b)(1)(A) of the Act. 4. The aforesaid, unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. Specifically, the Re- spondent shall be ordered to desist from issuing repri- 802 DECISIONS OF THE -NATIONAL LABOR RELATIONS BOARD mands or imposing other forms of discipline on its em- ployee -members because they have, filed unfair labor practice charges with the National Labor Relations Board. I shall further recommend that the Respondent be ordered to expunge from its records any reference to the reprimands issued to the Charging Parties, Beard, Luce, and, Gardner, and to post an appropriate notice to its members: On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Local 2017, International Union, United 'Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), Greenville, Michi- gan; its officers, agents, and representatives, shall 1. Cease and desist from (a) Reprimanding employees because they filed unfair labor practice charges with the National Labor Relations Board. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take, the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind and remove from its files any reference to the reprimands issued on 6 May, 1985 to Floyd Beard Jr., Robert- Luce, and Marcus Gardner and- notify them in writing that this has been done. - (b) Post at its business copies of the attached notice marked, "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed, by the- Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that .we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL No'r reprimand or impose other forms of dis- cipline on our members because they have filed unfair labor practice charges with the- National Labor Relations Board. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind and expunge from our files any ref- erence to the reprimands issued to Floyd Beard Jr., Robert Luce, and Marcus, Gardner on 6 May 1985 and notify them in writing that this has been done. LOCAL 2017, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) 6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 9 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."