Chrysler Corp.

National Labor Relations Board - Board Decisions

Jan 17, 1980

247 N.L.R.B. 400 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, Local No. 122
(Chrysler Corporation) and Lucille P. Smith. Case
8-CB-3820
January 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On August 29, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions 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
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 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 recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
' In adopting the Administrative Law Judge's decision to dismiss the
complaint, we find that the record as a whole fails to support the complaint
allegation that Respondent "imposed illegal conditions" on Charging Party
Lucille P. Smith in order to facilitate the processing of her grievance filed
under the collective-bargaining agreement between Chrysler Corporation and
Respondent. We do not rely on the adverse inference implied by the
Administrative Law Judge from the fact that Smith did not file the instant
charge until over a month after she lost her grievance. As in Harold L.
Fleenor. Jr., d/b/a 7-Eleven Food Store, 242 NLRB 104 (1979), Administra-
tive Law Judge Ricci's gratuitous observations regarding the date on which
the charge was filed have no bearing on our decision. Nor do we find, as the
Administrative Law Judge implies, that the charge or the complaint is
somehow rendered deficient by the fact that the former is phrased only in the
literal language of the statute, and the latter is "worded in general terms."
DECISION
STATEMENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hearing
in this proceeding was held in Cleveland, Ohio, on June 28,
1979, on complaint of the General Counsel against United
Automobile, Aerospace and Agricultural Implement Work-
ers of America, Local No. 122, here called Respondent or
the Union. The complaint issued on February 2, 1979, based
on a charge filed on December 19, 1978, by Lucille Smith,
247 NLRB No. 65
acting individually. The complaint alleges no more than
that, in violation of Section 8(b)(l)(A) of the National Labor
Relations Act, as amended, the Union "imposed illegal
conditions" upon Smith when processing a grievance she
had filed, as under the current collective-bargaining agree-
ment she had a right to do, after being discharged from her
employment with Chrysler Corporation. Resolution of the
issue presented raises two questions: (1) Did Soloman
Bowen, recording secretary of UAW Local 122, say to Smith
that if she agreed to go to bed with the two men-one black
and one white-successful processing of her pending griev-
ance would be facilitated? (2) If he did say that, does it
follow that he committed an unfair labor practice despite the
fact that the Union fully discharged its duty to represent
Smith, as the prosecution stipulated on the record? A brief
was filed by Respondent.
1. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE BUSINESS OF THE EMPLOYER
I find that Chrysler Corporation is an employer engaged
in commerce within the meaning of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICE
A. Chronology and Basic Facts
Smith was fired on February 2, 1978, and the Union then
filed a grievance aimed at winning her reinstatement. The
grievance was regularly processed pursuant to the Union's
contract with Chrysler through the first three stages. At
every step the Union lost. By the beginning of November the
fourth and last stage of the grievance procedure was about to
take place in Detroit, where the last step always takes place
for this Ohio plant. On November 5 Smith talked with
Bowen on the subject. This is when the disputed conversa-
tion took place-Smith testifying that the union agent
invited misconduct on her part and Bowen denying he
suggested any such thing. Shortly thereafter-I week, 2
weeks-the final meeting on the grievance took place, and
Smith lost. She has never been returned to work. On
December 19 she filed a charge against the Union, in which
the wrongdoing alleged is phrased only in the literal
language of Section 8(b)(1)(A) of the Act. A month later, on
February 2, 1979, the Regional Director issued his com-
plaint, in which again the wrongdoing alleged against the
Union is worded in general terms, that the Union "imposed
illegal conditions" upon its processing of the grievance.
If the record showed no more than the foregoing sequence
of events, a very persuasive inference could arise-and it
would be that the reason why Smith's grievance was lost was
because she refused the improper invitation or, restated,
because the Union became lukewarm if not totally indiffer-
ent to her interests as a result of her refusal to "cooperate,"
so to speak.
And perhaps this purpose-to make capital of that
inference-is why the General Counsel objected at the
400
AUTOMOBILE WORKERS, LOCAL NO. 122
hearing to the Union's attempt to inject further related facts
into the record. With Smith closing her direct testimony by
saying that in the end she lost her job for good, counsel for
Respondent offered to prove that the grievance was properly
handled by his client at every step, including the last. In
support of his objections the General Counsel called all this
irrelevant.
With this, in the interest of fairness, it became important
to make absolutely clear precisely what the complaint is all
about. There then followed explicit admission from the
prosecution that the Union did nothing wrong in the
processing of the grievance, and that it fully discharged its
statutory duty to represent Smith fairly and fully at every
stage. From the transcript:
Mr. Sheerer: I think there is a great deal of relevance
here. She is saying-the charge is basically the Union
did not represent this woman.
Mr. Adamson: That's not the charge.
JUDGE RiCCI . . . and do I also understand clearly,
Mr. Adamson, that there is no contention by the
General Counsel, no allegation, no argument at all that
other than that one solicitation statement or attempt by
Bowen on that day, there is no contention that UAW or
its Local did anything illegal at all, failed in any other
respect to represent this lady in her grievance over the
discharge?
Mr. Adamson: That's correct.
But at the close of the hearing the General Counsel
attempted to go back to the doubletalk of the complaint:
"Based upon that evidence, there is a strong inference and a
strong implication that Mr. Bowen was indicating to her
that certain things of a sexual nature would have to be done
by this witness in order for her to have her grievance
facilitated in the grievance procedure."
B. A Question of Law
The best I can make of this sort of ambivalence in both the
pleadings and statements of record is a purported analogy to
an employer's threat to discharge an employee for her
prounion activities, followed by inaction on the part of the
man who voices the threat. The Board has found such
threats to be unfair labor practices under Section 8(a)(1) of
the Act, holding the fact the threat is not implemented
insufficient as a defense. Here, when the union agent said to
Smith-if he did say it-that unless she agreed to his
improper suggestion her grievance would be endangered, he
was threatening to withhold proper union representation. In
the event he did not carry out his threat but instead took
affirmative action, he did the right thing by her.
The two situations are not quite parallel. The employer
who does not discharge the girl when she joins the Union in
defiance of his threat has done nothing. As to him a negative
proposition results-at least for the time being. But the
threat still hangs in the air, for her job is always subject to
his whim. Not so in the case of the union agent. When he
pushed the lady's grievance properly he did the positive, he
cleared the air affirmatively of any continuing threat to
prejudice her employment chances. There was nothing left
for him to do that she could fear he might use as a lever over
her freedom to exercise any statutory rights.
There is another difference between the two situations.
When an employer threatens there is no question-and there
can be no question-as to what right of the woman it is that
he is seeking to infringe upon. When a union agent, a man in
this case, invites what recording secretary Bowen is said to
have invited, it is by no means sure that his purpose or desire
is to impose upon a lady's union rights. Given the subject at
hand, it is equally possible, if not more probable, that his real
interest and intent is what it has been from time immemori-
al. And may it not also be that the ladies know this quite as
well as the men? The two subjects-unionism and sex-are
not really related.
Be that as it may, I am by no means certain that such a
single remark by a union agent, apart from every other
consideration, would suffice to prove an unfair labor practice
under this statute. But it is not necessary to reach the
question in this case because I find the testimony insufficient
to prove the essential factual allegation of the complaint.
C. The Evidence
Between February 2, the day of the discharge, and
November 5, the time of the critical conversation, Smith
talked with Bowen many times about her grievance-often
on the telephone and more than once at his home. Whether
she went to his house on November 5 upon her own volition
or whether he invited her to come there is of no moment.
What is clear is that he told her the outlook for the imminent
last step was bad, and that he needed more facts from her if
there were to be any chance of success. From Smith's
testimony:
Soloman told me that he wanted me to go over
exactly what had happened on February the 2nd with
him again. So I told him every thing that I could
remember what had happened. And he told me that Bill
Gilbert and Paul Carmichael from Detroit had been
down to his home and had supper. .... He said they
wanted me to come to Detroit, and he was supposed to
bring me.... He said it was going to be a secret
meeting, and I wasn't supposed to tell anyone, includ-
ing my husband, because it was going to be outside of
the grievance procedure and they could get in trouble if
anyone would find out about it. .... He said it might
take overnight because they might have a hard time
finding a place to meet secretly.
As stated above, the General Counsel, consistent with his
basic approach to the case, objected to evidence relating to
Smith's discharge in February and to the Union's activities
in processing her grievance. Nevertheless, the record does
show that the discharge followed a quarrel between Smith
and another employee named Virginia Shelton, that Shelton
too was discharged that day, that she filed a grievance as did
Smith, and that Shelton's grievance, like Smith's, was
pending final resolution at the last step on November 5.
Among the things Smith quoted Bowen as having said to her
that day is: "You didn't know what Virginia Shelton was
doing to get her job back."
Smith continued to testify that after Bowen had said all
these things to her she spoke as follows: "I said if it meant
me going to bed to get my job back I didn't want my job and
Chrysler could keep it." Asked what response Bowen had
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made to that statement Smith said only that at that point
Bowen's wife came into the room. Before ending her story
Smith admitted: "He didn't tell me to go to Detroit and go
to bed with anybody. That's not what he said."
What all this means is that Smith read a hidden meaning
in Bowen's spoken words. In the parlance of Board law,
therefore, we have an inference case. What did Bowen have
in mind? A discharge case speaks of concealed motive, of a
pretext used to blurr illegal motivation. And, as in the
discharge case, the persuasiveness of the asserted innocent
grounds for a respondent's act must be evaluated against the
suggested inference of improper intent. Smith read one thing
in the word "secret." Bowen explained it as something else.
The record here shows, without need for quoting chapter
and verse, that any kind of direct conversation between
Smith and either of the two higher echelon officials in
Detroit, if known, would have done violence to the provi-
sions of the collective-bargaining agreement and therefore
had to be kept secret. Again from Smith's testimony:
Q. Now, when the subject of going to Detroit came
up and Mr. Bowen said it would need to be a secret
meeting, what reason did he give you for the necessity
of meeting in secret?
A. He said they were not supposed to do things like
that outside the grievance procedures.
Q. That's right. They are not supposed to meet with
individual grievants on a private basis at that level of
the procedure. Isn't that correct?
A. That's what he told me.
Smith was the first and only witness called by the General
Counsel in support of the complaint. Had Respondent rested
at the point and if the record showed nothing more than this,
I would dismiss the complaint.
Bowen denied having intimated anything of the sort in his
talk with Smith. He did say that it may have been he who
first spoke of going to Detroit. He admitted saying the
meeting must be secret but stressed the reason being the
' 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,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
necessity for at least seeming to conform with the contrac-
tual limitations upon the grievance procedure. And if he did
say that even the lady's husband should not know, that too is
understandable, for Smith is a worker in the same Chrysler
plant and could well have later spilled the beans. At many
points Bowen equivocated and shifted around a bit, but on
the essential point-that he said nothing improper directly
or indirectly-he held firm. There is something else that has
a certain relevance and deserves comment. Smith said that
when she got home she told her husband about the
conversation, but that all he said was, "I could go to Detroit.
You know how to conduct yourself, to talk." Moreover,
Smith did not complain to anybody about what she now
calls an indecent overture by the union agent. She did not
file the charge in this case until over a month after she had
lost the grievance. If her husband, presumably also a worldly
man, had made the same adverse inference his wife now says
she was justified in reaching, I doubt that he would have
reacted quite as calmly as he did.
Considering the entire record, I shall recommend dismis-
sal of the complaint. Unfair labor practices must be
supported by substantial evidence upon the record consid-
ered as a whole. N.LR.B. v. Glen Raven Silk Mills, Inc., 203
F.2d 946 (4th Cir. 1953). There is respectable precedent for a
finding that in the field of labor law a significant message
can be given obliquely-by a "wink ard a nod." United
States v. International Union, United Mineworkers of Ameri-
ca, 77 F.Supp. 563 (D.C. Cir. 1948). Does the same principle
apply in the field of sexual relations? When Bowen told
Smith-if he did say it-that Virginia was doing something
to get her job back, could he not as well have meant that
Virginia was lighting candles to the Virgin Mary?
ORDER'
It is hereby recommended that the complaint be, and it
hereby is, dismissed.
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.
402