DaimlerChrysler Corp.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1324 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 154
1324
DaimlerChrysler Corporation and International Un-
ion, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
Local 412, (Unit 53), AFL–CIO. Cases 7–CA–
41857, 7–CA–42126, and 7–CA–42437
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On June 30, 2000, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief. The General Counsel
also filed cross-exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 only to the extent consistent
with this Decision and Order.
I. OVERVIEW
This case primarily concerns the Respondent’s deal-
ings with employee and union steward Keith Valentin.
The judge determined that the Respondent violated the
Act when it: (1) placed Valentin on notice of possible
discipline in connection with his authoring e-mail mes-
sages regarding employee use of pool cars; (2) included
comments critical of Valentin’s union activities in his
1998 performance appraisal; (3) asked Valentin ques-
tions about the provenance and circulation of a draft in-
formation request; and (4) issued a written warning to

1 Under the Board’s decision in Postal Service, 302 NLRB 767 (1991),
the 8(a)(5) complaint allegations concerning failure to provide requested
information are not appropriate for deferral pursuant to Collyer Insulated
Wire, 192 NLRB 837 (1971). See also DaimlerChrysler Corp., 331
NLRB 1324 fn.3 (2000), enfd. 288 F.3d 434 (D.C. Cir. 2002). Chairman
Battista and Member Schaumber, if not bound by precedent, would defer.
However, in the absence of a three-member Board majority to overrule
current Board law, they find that the judge correctly applied the Board’s
policy of nondeferral in information request cases. SBC California, 344
NLRB No. 11 at slip op. 1 fn.3 (2005).
With respect to the remaining complaint allegations, the Respondent
has given no indication that it would agree to a deferral of some of the
allegations if others are found not to be deferrable. Such “piece-meal”
deferral of the complaint allegations is, in any event, not favored by the
Board, which prefers to have an entire dispute resolved in a single
proceeding. See Beverly Healthcare, 335 NLRB 635, 671 (2001).
2 There were no exceptions to the judge’s dismissal of (1) the allega-
tion concerning Valentin’s 1-day disciplinary suspension; (2) the alle-
gation concerning threats made by the Respondent’s Labor Relations
Supervisor Timothy Martin; (3) the allegation concerning the Respon-
dent’s alleged failure to respond to the Union’s June 15, 1999 informa-
tion request; and (4) the allegation concerning the Respondent’s alleged
failure to respond to item 7 of the Union’s July 22, 1999 information
request.
Valentin in connection with the contents of that draft
information request and Valentin’s subsequent encounter
with a supervisor. For the reasons set out below, we re-
verse these findings of violations.3
The judge also found that the Respondent committed
several violations of Section 8(a)(5) by refusing to pro-
vide or delaying in providing information requested by
the Union. With a minor exception noted below, we
agree with the judge that the failures to provide the re-
quested information violated Section 8(a)(5). We also
affirm the judge’s finding that the Respondent unrea-
sonably delayed providing certain information requested
by the Union on June 22, 1999, regarding Valentin’s
1998 performance appraisal. We therefore find it unnec-
essary to pass on the judge’s further findings that the
Respondent unreasonably delayed providing other re-
quested information as those findings are cumulative and
would not affect the remedy herein.
II. ANALYSIS
1. The pool-care-mails
The parties’ local supplemental agreement provides:
[W]hen requested, pool cars, when available, will be
provided for transportation from [the Chrysler Techni-
cal Center] to the offsite work location and return. In
addition, to better facilitate pool car usage, group use of
a pool car should always be considered.
When the demand of Corporation business causes these
cars to be unavailable, employees may be asked to use
their personal car and be reimbursed for mileage based
on Corporate guidelines. Employees will not be re-
quired to use a personal car on Corporation business if
their wishes are to the contrary.
On November 4 and 5, 1998, Valentin authored three
e-mail messages to bargaining unit employees addressing
the use of pool cars. Two of the e-mail messages were
widely distributed among the unit employees. The first
“reminded” the unit of what Valentin described as “the
Union’s” position on the use of personal cars: “the Union
strongly recommends against using your personal vehicle
on company business.” The second also addressed the
use of pool cars, stating
Don’t volunteer to find a rider and make arrangements.
Let management tell you who your [sic] riding with.
At that time, you have an opportunity to shoot down

3 We do agree with the judge, for the reasons stated in his decision,
that the Respondent did not violate Sec. 8(a)(1) when it sent Interna-
tional Union official Vinnie Pagano a letter informing him that Valentin
was abusing his union office and failing to perform scheduled work
assignments.
DAIMLERCHRYSLER CORP. 1325
their arrangement by refering [sic] to your ‘team’ con-
flicts which are almost certain to arise. Kapesh [sic]?
Remember, don’t volunteer to do management’s work
for them. If management gives you any static over
these options, refer them to me.
The third message, to unit employee Stu Fisher, with
copies to other employees, was apparently in response to
a question Fisher posed. That message read:
Why not use your normal commute time to pick-up a
pool car? Often times BU members will be going out of
their way and “back tracking”. So what? Who’s [sic]
time are you saving? Remember, we work for a very
large and successful . . . company. The company could
easily negotiate with the Union for lease cars and/or
more favorable pool car utilization. [Unit chairperson]
Doug [Peacock] and I are all ears if the company has a
proposal. I sincerely wish we had a management here
that would work with us on this. So then . . . when it
comes to pool cars, WORK THE RULE! Action speaks
louder than words.
On November 6, 1998, Valentin was asked to attend a
meeting with two supervisors. At the meeting, the Re-
spondent’s senior manager, Robert Page, read the follow-
ing notice to Valentin regarding his e-mails:
You are being placed on notice of possible discipline
up to and including discharge for potential improprie-
ties that have occurred associated with lotus notes mes-
sages you sent on 11/4/98 and 11/5/98. An investiga-
tion and review of the situation is being conducted.
You will be advised of the decision upon completion of
the investigation.
Valentin, however, was not subsequently disciplined.
The judge found that Valentin’s authoring of the three
e-mail messages was protected conduct because the mes-
sages did nothing more than inform the bargaining-unit
employees what the parties’ local supplemental agree-
ment already provided: “employees will not be required
to use a personal car on Corporation business if their
wishes are to the contrary.” Therefore, the judge found
that the Respondent violated Section 8(a)(1) when it
placed Valentin on notice of possible discipline for hav-
ing sent the messages. We disagree.
It is well-settled that employees who engage in deliber-
ate “slowdowns” of work or encourage others to do so are
engaged in activities not protected by the Act, and their
discipline for such activity does not violate the Act. Davis
Electric Contractors, Inc., 216 NLRB 102 (1975) (citing
Elk Lumber Co., 91 NLRB 333, 337, 338 (1950); NLRB v.
Blades Mfg. Corp., 344 F.2d 998, 1004, 1005 (8th Cir.
1969); General Electric Co., 155 NLRB 208, 220–221
(1965); and New Fairview Hall Convalescent Home, 206
NLRB 688 (1973)). We find that, through these e-mails,
Valentin was in effect encouraging unit employees to en-
gage in a deliberate slowdown: first, he explicitly encour-
aged unit employees to “back track” so that they would
not save the Respondent’s time, in an apparent attempt to
obtain “more favorable pool car utilization;” second, con-
trary to the parties’ local supplemental agreement, he en-
couraged employees to “shoot down” the Respondent’s
attempts to schedule group use of pool cars.
The judge, in finding a violation here, accepted Valen-
tin’s claim that his messages merely clarified the Union’s
interpretation of the parties’ local agreement on the use
of personal cars. The judge’s finding ignores the plain
language of the e-mails advocating a work slowdown
with respect to pool car procedures. The actions advo-
cated in the e-mails would confound the Respondent’s
efforts to provide pool cars consistent with the parties’
agreement and would result in lost work time.4 Advocat-
ing such conduct is not protected by the Act.
The judge’s reliance on Cleveland Pneumatic Co., 271
NLRB 425 (1984), enfd. 777 F.2d 339 (6th Cir. 1985), is
misplaced. In that case, the union’s written notification to
its members that it “did not authorize [certain] overtime”
informed the employees of the union’s position that the
employer was assigning overtime in a manner inconsistent
with the terms of the governing collective-bargaining
agreement. Similarly, in Riverside Cement, 296 NLRB
840 (1989), cited by the dissent, employees were unlaw-
fully locked out for exercising their contractual right to
refuse to use certain personal tools on the job.
Here, there was no claim made or evidence introduced
that Valentin sent his e-mails because he believed the
Respondent was violating the collective-bargaining
agreement either in the manner in which it provided pool
cars or by requiring employees to use their own cars.
Rather, Valentin’s messages were an attempt to frustrate
and interfere with the Respondent’s operations in order
to modify the current contract or to obtain leverage in
some future negotiation.

4 Member Schaumber notes that the premise of the Act is to elimi-
nate the cause of obstructions to commerce by encouraging the practice
and procedure of collective bargaining. See Sec. 1. The Supreme
Court pointed out in NLRB v. Electrical Workers Local 1229 (Jefferson
Standard), 346 U.S. 464, 472 (1953), that the Act “seeks to strengthen,
rather than weaken, that cooperation, continuity of service and cordial
contractual relation between employer and employee that is born of
loyalty to their common enterprise.” In Member Schaumber’s view,
Valentin’s urging employees to deliberately frustrate the Respondent’s
provision of pool cars is inconsistent with these foundational principles.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1326
Our dissenting colleague takes the position that the no-
tice read to Valentin violated Section 8(a)(1) because it
was “overbroad.” In the dissent’s view, the e-mails, in
part, defended unit employees’ contractual right to de-
cline to use personal cars for work and were, to that ex-
tent, protected. Thus, without deciding whether the e-
mails also advocated an unprotected slowdown, the dis-
sent finds that the notice of possible discipline was
unlawful because it failed to specify which parts of the e-
mails were under investigation. Instead, it referred gen-
erally to “potential improprieties.” As a result, in our
colleague’s view, the notice “could reasonably be inter-
preted as a threat of possible punishment simply for. . .
attempting to enforce the terms of the parties’ contract.”5
We disagree. First, as previously stated, Valentin was
not seeking to enforce the terms of the contract. On the
contrary, Valentin was trying to pressure the Respondent
so it would negotiate a change in the terms of the con-
tract. Second, the specific conduct urged on employees
in the e-mails was a slowdown. This is the clear mean-
ing and intent of passages such as:
“. . . shoot down [management’s] arrangement by
referring [sic] to your ‘team’ conflicts which are al-
most certain to arise. Kapesh [sic]?”
“Who’s [sic] time are you saving? Remember, we
work for a very large and successful . . . company.”
“. . . when it comes to pool cars, WORK THE
RULE! Action speaks louder than words.”
Given the parties’ mature and established collective-
bargaining relationship and Valentin’s status as an ex-
perienced union steward, he would not reasonably under-
stand that the Respondent’s reference to “potential im-
proprieties” encompassed anything other than those por-
tions of his e-mails calling for a slowdown. Therefore,
the Respondent did not violate the Act when it notified
Valentin that it was going to investigate his conduct in
connection with the e-mails, and this allegation of the
complaint is dismissed.6
2. Valentin’s 1998 performance appraisal
As a salaried plant engineer, Valentin is annually pro-
vided a performance review and appraisal. The appraisal
consists of two sections: “Supervisor’s Assessment of
Results” and “Behavior Ratings.” The supervisor’s as-
sessment section classifies the employee based upon

5 The dissent’s analysis thus departs from that of the judge, who
found the e-mails to be entirely protected conduct and made no finding
that the notice of possible discipline was “overbroad.”
6 Member Schaumber points out that the notice was not a discipli-
nary warning; indeed, no discipline was ever imposed by the Respon-
dent based on the e-mails. Rather, it advised Valentin of a prediscipli-
nary investigation into his unprotected activity.
“what was accomplished compared to goals, responsibili-
ties and requirements.” There are four possible classifi-
cations: role model, significant contributor, contributor,
and development needed. The behavior ratings address,
inter alia, an employee’s “innovation/risk taking,”
“teamwork,” “communication/openness/candor,” “prob-
lem solving,” and “leadership.”
The appraisal permits separate comments for each of
the sections: those in the supervisor’s assessment come
only from the employee’s supervisor, while those in the
behavior ratings come from anonymous “multiple input
providers,” including both supervisors and unit-employee
coworkers. Each year, employees are requested to nomi-
nate up to six “input providers” who can be used to pro-
vide comments for the behavior-rating process. For his
1998 appraisal, which was issued in final form on Janu-
ary 23, 1999,7 Valentin refused to designate any input
providers, thus leaving their selection to his immediate
supervisor.
Valentin received a supervisor’s assessment of “Con-
tributor,” but no rating for any of the 11 behavior ratings
in his 1998 appraisal. As to the commentary part of each
section of the appraisal, the supervisor’s assessment con-
tained factual work-related observations such as “[UAW]
business took priority over active involvement” in work
projects, and “extensive involvement with [UAW] busi-
ness precluded any significant contribution” to other
work programs. The comments with regard to Valentin’s
behaviors were, on the other hand, often quite critical of
his performance as union steward.8 The sources of these
critical comments are anonymous, though it is clear that
some of them were made by co-workers selected as input
providers. The other factual comments, which are clearly
attributable to Valentin’s supervisor, mirror the com-
ments set forth in the supervisor’s assessment section,
referenced above.9
The General Counsel alleged that the Respondent’s
1998 appraisal of Valentin discriminated against his un-
ion activities in violation of Section 8(a)(3) and (1) of the

7 All subsequent dates are in 1999, unless otherwise stated.
8 Comments included: “Keith needs to listen to the needs of his un-
ion members and not follow or work union business into his own, pri-
vate agenda;” “he seems to be fond of gamesmanship in the presenta-
tion of grievances;” “Keith could effectively represent his constituents
as Chief Steward in a much more efficient manner so that there would
be ample opportunity to accomplish real Plant Engineering work in
support of department objectives;” “at times, Keith does not have a clue
about what is going on with his union membership.”
9 For example: “Keith’s minimal involvement in assignments related
to his job title, ‘Plant Engineer—A[,]’ during 1998 make rating his
‘innovation/risk taking’ behavior, as it pertains to Chrysler business,
impossible;” “Because nearly 100% of Keith’s time has been spent on
[UAW] business during 1998, there is no basis for an evaluation of his
‘teamwork’ behavior, as it relates to Chrysler business.”
DAIMLERCHRYSLER CORP. 1327
Act, in part because no critical comments about such
activities had ever been placed in the appraisals of other
employee union representatives. The judge agreed, also
finding that the absence of ratings for the 11 behavior
categories could negatively impact Valentin’s terms and
conditions of employment, specifically, his chances for
promotion or efforts to transfer into another unit of the
Respondent’s workforce. We disagree.
In order to prove discrimination in violation of Section
8(a)(3), the General Counsel has the initial burden of
establishing that the employee’s union activity or other
protected activity was a substantial or motivating factor
in an employer’s adverse personnel action. See Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
Transportation Management, Inc. v. NLRB, 462 U.S. 393
(1983). The General Counsel here, however, failed to
establish any adverse action.
The Respondent offered testimony that an appraised
employee’s supervisor’s assessment rating, such as
Valentin’s “Contributor” rating, was entirely independ-
ent from, and not informed by, any part of the behavior
ratings section of the appraisal. Likewise, in deciding
whether to offer a promotion or a transfer, supervisors do
not review the comments contained in the behavior rating
section of the appraisal. This testimony was unrebutted.
Therefore, the absence of ratings and the inclusion of
critical union-related comments in the behavior ratings
section did not have an adverse impact on Valentin’s
terms and conditions of employment.10
Indiana Hospital, 315 NLB 647 (1994), on which the
judge relied to find a violation, is distinguishable. In that
case, the evaluation, read in context, was a direction to
the employee to stop supporting the Union, which the
appraisal euphemistically referred to as “outside influ-
ences.” Indeed, the Board adopted the judge’s finding
that the message in the evaluation comment amounted to
a warning, which was based in part on the judge’s find-
ing that the employer’s alternate explanations were in-
credible. Here, on the other hand, the comments did not
direct Valentin to abandon the Union; rather, the com-
ments were directed at Valentin’s excessive activities,
some of which we have found unprotected herein. Fur-
ther, the Respondent here presented unrebutted evidence
that the comments had no impact on Valentin’s terms
and conditions of employment. No evidence of this
character was presented in Indiana Hospital.

10 Further, read in context, the comments are not significantly dif-
ferent than those contained in the Respondent’s letter to the Union
complaining about Valentin’s abuse of his union position, which letter
we, in agreement with the judge, have found lawful herein.
Moreover, we disagree with the judge that the Respon-
dent “exhibited disparate treatment” by including com-
ments regarding Valentin’s union activity in his ap-
praisal. The judge based this finding on: (1) Peacock’s
testimony that, although he spends approximately 50
percent of his time on union activities, he has never had
his union activities referred to in his annual appraisal; (2)
Peacock’s testimony that he was not aware of any other
union official at the Respondent who had comments
about their union activities inserted in their annual ap-
praisal; and (3) testimony that Karieem Schkoor, who,
while a unit employee, is a full-time union official, was
not rated and did not receive an evaluation for 1998. The
situations involving Peacock and Schkoor, however, are
not comparable to that of Valentin. Peacock, unlike
Valentin, successfully balanced his work obligations and
union duties and was evaluated on the basis of the work
he performed. Schkoor, unlike Valentin, was a full-time
union official, and exempt from the evaluation process.
For the foregoing reasons, we dismiss this allegation.
3. The draft information request
On March 17, in connection with a grievance investi-
gation concerning the discharge of probationary em-
ployee Lloyd Cooley, Valentin prepared a draft informa-
tion request that sought, among other things, information
concerning Supervisor John Lewandowski’s medical
history. Specifically, item 7 of the draft request asked
whether Lewandowski had ever had a substance-abuse
problem, and whether he had ever received treatment for,
inter alia, “paranoid schizophrenia, hallucinations, re-
pressed homosexuality, pedophilia, bestiality, etc.”
Valentin testified that he included item 7 in his exuber-
ance, and “in the heat of the moment.”
Valentin made a copy of the draft request for Peacock
to review. Peacock advised Valentin that he “shouldn’t
have put [item 7 in] there.” Valentin testified that, after
consulting with Peacock, he determined that “it was, in
fact, improper.” He further testified that, “after cooling
off for an hour or two,” he agreed with Peacock and re-
moved item 7. A version of the information request
without item 7 was subsequently presented to the Re-
spondent.
Lewandowski found a copy of the draft version lying
on top of the office copier. He testified that two other
employees had obtained copies, and that Steve Urbanec,
an engineering supervisor, also received a copy. Valen-
tin testified that he could not remember whether he left a
copy of the draft version by the copying machine.
On March 24, a meeting took place among Labor Re-
lations Supervisor John Karas, Peacock, and Valentin.
Karas informed Valentin that it was an investigatory
meeting, making specific reference to the offensive por-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1328
tions of the draft information request. Karas then asked
Valentin questions about the document, including
whether it had been copied, distributed, or circulated in
any way, and whether there were any copies saved on
any computer files or disks. Valentin responded “no
comment” to all questions.
The judge concluded that the questions posed by Karas
violated Section 8(a)(1). The judge’s analysis suggests
two reasons for this conclusion. First, in the judge’s
view, “such interrogation was directed at Valentin solely
as a result of his Union position and was retaliatory for
his vigorous pursuit of other grievances and numerous
information requests.” In other words, Respondent was
motivated to harass and intimidate Valentin because of
his general union activism rather than because of any
concern about the draft information request. Second, to
the extent that Respondent’s questions were in response
to the draft information request, the judge found that the
entire request was protected conduct. He thereby implic-
itly rejected the Respondent’s defense that the remarks in
item 7 were unprotected and that Respondent could
therefore legitimately question (and subsequently warn)
Valentin about this discrete aspect of the request.
We disagree with both of the judge’s reasons for find-
ing a violation. As to the first reason, the record does not
support a finding that the Respondent’s interrogation was
motivated by animus against Valentin’s other informa-
tion request and grievance activity. We recognize that
the Respondent’s officials were clearly at odds with
Valentin over the propriety of many such requests and
grievances filed by Valentin since he became chief stew-
ard in May 1997. In a prior case, the Board affirmed a
judge’s finding that the Respondent unlawfully threat-
ened Valentin with disciplinary action for engaging in
this activity.11 That case, however, involved an over-
broad admonition against “inappropriate, harassing activ-
ity,” which the judge found could “include virtually any
[protected] request for information submitted by Valen-
tin.”12 In this case, Respondent’s interrogation of Valen-
tin and its subsequent warning focused quite specifically
on his involvement with draft information item 7. The
judge nevertheless found that Respondent’s professed
concern about this specific activity was a pretext for a
broader retaliatory motive because it had already re-
ceived the final version of the information request which
omitted item 7 and which invited Respondent to contact
Valentin or Peacock if it had any questions about the
relevancy of information actually requested. The judge’s
analysis ignores the fact that the draft information re-

11 DaimlerChrysler Corp., 331 NLRB 1324, 1327 (2000).
12 Id.
quest with item 7 still circulated in Respondent’s work-
place and particularly upset Supervisor Lewandowski.
Thus, contrary to the judge, we find that Respondent’s
concern about Valentin’s role in the preparation and dis-
semination of draft information item 7 was the real moti-
vating factor for its interrogation.
We likewise disagree with the judge’s finding that
item 7 of the draft information request was protected.
Item 7 of the draft information request had nothing to do
with Valentin’s investigation into the discharge of Coo-
ley, which was protected activity. Instead, it was a gra-
tuitous effort to harass and embarrass Lewandowski.
Valentin himself admitted that including item 7 in an
information request would be improper. This item sug-
gested not only that Lewandowski had a history of illicit
drug addiction, but that he engaged in aberrant sexual
behavior. Valentin’s opprobrious personal attack on
Lewandowski, which later circulated around the office,
was unprotected and unrelated to Cooley’s grievance and
to the protected edited version of the request that the Un-
ion formally submitted to the Respondent
Furthermore, in conducting its interview of Valentin,
the Respondent appropriately limited the scope of its
questions to these unprotected aspects of Valentin’s con-
duct. Karas made it clear, before asking any questions of
Valentin, that he was concerned only about the informa-
tion requested in item 7. Karas did not interrogate
Valentin about the legitimate requests made in further-
ance of the grievance investigation. Under these circum-
stances, we find that the Respondent’s investigation was
neither motivated by an intent to retaliate against Valen-
tin’s protected grievance and information request activ-
ity, nor could it reasonably tend to interfere with, coerce,
or threaten such activity. Therefore, we dismiss the alle-
gation that the interrogation of Valentin violated Section
8(a)(1) of the Act.
4. The written warning
On March 25, Valentin approached Lewandowski at
his desk in the nonmanagerial department area of the
Respondent’s Auburn Hills Technical Center. This large
open area of the facility is filled with employee cubicles.
Valentin sought to hold an immediate grievance investi-
gation meeting about Cooley’s discharge. Lewandowski
suggested that the meeting take place the following
week. In response, Valentin, in a loud voice, called
Lewandowski an “asshole,” and said “bullshit, I want the
meeting now.”
After this exchange, Valentin began to leave the im-
mediate area, but Lewandowski asked him to come back.
Valentin asked, “is that an order?” Lewandowski re-
sponded, “no,” and said that he was “just trying to coop-
erate,” and that they could hold the meeting the follow-
DAIMLERCHRYSLER CORP. 1329
ing week. Valentin then approached Lewandowski in a
manner that both Lewandowski and Urbanec, who wit-
nessed the encounter, described as “intimidating.”13
Valentin loudly said, “fuck this shit,” and that he did not
“have to put up with this bullshit.” Then he turned and
left the area.
During this encounter, there were “quite a few” other
employees in the immediate area, sitting at their cubicles.
At least three of them, Urbanec, Randy Rudes, and Ed-
ward St. Jaques, who were engaged in a discussion in
Urbanec’s cubicle, adjacent to Lewandowski’s, heard
Valentin’s loud profanities.
On April 6, the Respondent issued Valentin a written
reprimand that referenced the March 17 draft information
request and the March 25 encounter with Lewandowski.
It stated, in pertinent part: “effective April 6, 1999, you
are being given this formal written warning for harassing
Mr. Lewandowski, inappropriate conduct, intimidating
behavior and using abusive language.”
The judge found that Valentin’s March 25 conduct did
not lose the protection the Act, given that “the parties
regularly use profanity when meeting with each other to
resolve grievances and such language is regularly used
on the shop floor.” He further found that Respondent
issued a written warning to Valentin “based on his vigor-
ous pursuit of union activities,” in violation of Section
8(a)(3) and (1) of the Act. Again, we disagree.
As previously stated, Valentin’s preparation of draft
information request item 7 and the subsequent circulation
of that draft, even if unintended, were unprotected. Re-
spondent could lawfully rely on this misconduct to disci-
pline him. However, there remains a question whether
Respondent’s warning to Valentin was unlawful because
it also relied on Valentin’s conduct during his discussion
with Lewandowski while he was engaged in protected
grievance activity.14 It is well established that “although
employees are permitted some leeway for impulsive be-
havior when engaged in concerted activity, this leeway is
balanced against an employer’s right to maintain order
and respect.” Piper Realty, 313 NLRB 1289, 1290
(1994). Where an employee engages in indefensible or
abusive misconduct during otherwise protected activity,

13 Although the judge did not mention Lewandowski’s testimony to
this effect, the testimony was undisputed. Further, Lewandowski’s
testimony, which was generally credited by the judge, is bolstered by
both his and Urbanec’s written accounts of the incident, which indicate
that Valentin’s conduct in this respect was “intimidating.”
14 The judge’s analysis suggests that Respondent was motivated to
retaliate against Valentin by animus against his entire history of pro-
tected union activism. We find that the record fails to show that Re-
spondent warned Valentin for any reason other than those asserted, i.e.,
his conduct related to the preparation of the draft information request
and his subsequent discussion with Lewandowski.
the employee forfeits the Act’s protection. Whether the
Act’s protection is lost depends on a balancing of four
factors: (1) the place of the discussion between the em-
ployee and the employer; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an
employer’s unfair labor practice. See Atlantic Steel Co.,
245 NLRB 814 (1979); see also Trus Joist Macmillan,
341 NLRB 369, 371 (2004) (applying Atlantic Steel fac-
tors to find employee use of profanity and lewd gestures
removed statutory protection). Applying these factors,
we find that Valentin’s March 25 conduct cost him the
Act’s protection.
The first factor, the place of the discussion, weighs
against protection of Valentin’s conduct. Valentin’s
March 25 encounter with Lewandowski occurred in and
around Lewandowski’s cubicle, which was located in a
large open area full of cubicles occupied by both super-
visory and nonsupervisory personnel. Indeed, Valentin
admitted that there were “quite a few” other employees
in the immediate area. Further, Valentin’s outbursts
were overheard by at least three people in an adjacent
cubicle. In such a place, Valentin’s sustained profanity
would reasonably tend to affect workplace discipline by
undermining the authority of the supervisor subject to his
vituperative attack. See, generally, Aluminum Co. of
America, 338 NLRB 20, 21 (2004) (outburst in employee
breakroom overheard by supervisor and two employees);
Piper Realty Co., supra (outburst in supervisor’s office
with door open overheard by two clerical employees).
The second factor, the subject matter of the discussion,
weighs in favor of protection. Although Valentin’s pro-
fane outburst was a reaction to Lewandowski’s sugges-
tion regarding scheduling a meeting, and not about any
comment Lewandowski might have made regarding the
underlying grievance, the meeting nevertheless took
place in the normal course of Valentin’s exercise of his
grievance-investigation duties, which are protected.
The third factor, the nature of the employee’s outburst,
weighs against protection. Valentin was insubordinate
and profane during his meeting with Lewandowski.
While the encounter was fairly brief, the profanity in-
volved more than a single spontaneous outburst. As our
dissenting colleague emphasizes, credited testimony
shows that the use of profanity was common in the
workplace and in grievance discussions. Nevertheless,
that testimony does not support a finding that such lan-
guage was common, much less tolerated, when used re-
peatedly in a loud ad hominem attack on a supervisor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1330
that other workers overheard.15 Moreover, we note that
Respondent disciplined an employee for using profane
language to Valentin.
Finally, the fourth factor also weighs against protec-
tion. There is no finding that Valentin was provoked by
any unlawful conduct by Lewandowski or other officials
of Respondent.16
Thus, only the factor of subject matter favors protection,
while the factors of place, nature of conduct, and provoca-
tion do not. Accordingly, we find that Valentin lost the
protection of the Act by his misconduct during the March
25 encounter with Lewandowski. Aluminum Co. of Amer-
ica, supra; Piper Realty Co., supra. Therefore, we find
that the Respondent lawfully disciplined Valentin for un-
protected misconduct when it issued him the April 6 writ-
ten warning about the draft information request item and
his abusive language towards Lewandowski on March 25.
We dismiss the allegation that the warning violated Sec-
tion 8(a)(1) and (3) of the Act.
5. The information requests
With some modification, we agree with the judge’s
finding that the Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to provide information re-
quested by the Union.
An employer has a duty to provide the union, on re-
quest, information relevant in carrying out its statutory
responsibilities. Postal Service, 276 NLRB 1282, 1285
(1985). The standard for relevance is a “discovery type
standard,” and generally information that aids the griev-
ance arbitration process is considered relevant. NLRB v.
Acme Industrial Co., 385 U.S. 432, 437 (1967). Using
the Board’s standard, the judge correctly found that each
of the various items sought by the Union in the disputed
requests was relevant, with two exceptions.
On July 22, the Union requested information regarding
the partial relocation of bargaining unit employees to a
new building. The request was submitted in connection
with grievances concerning the Respondent’s alleged
failure to include the Union in the decision-making proc-
ess for the relocation, new building layout, and seating
arrangements of unit employees. Items 2 and 3, “the
appropriation request(s) used to fund” the relocation and
“the lease agreement for the DaimlerChrysler occupation

15 For instance, there are no exceptions to the judge’s finding that
Respondent lawfully disciplined Valentin only a month after the
Lewandowski meeting for conduct in confrontation with another super-
visor that included “screaming, abusive language, intimidation, finger
pointing, and temporarily blocking the [supervisor’s] egress.”
16 The outburst did occur the day after Valentin was questioned
about the circulation of the draft information request. However, we
have found herein that that investigation was proper under the circum-
stances.
of the Comerica building,” do not apparently concern
terms and conditions of unit employees’ employment and
are therefore not presumptively relevant. Further, the
General Counsel failed to prove the relevance of this
requested information to the Union’s representative role
in the decision-making process for the relocation, new
building layout, and seating arrangements of unit em-
ployees. Thus, the Respondent did not violate Section
8(a)(5) and (1) when it refused to provide that informa-
tion. Miami Rivet of Puerto Rico, 318 NLRB 769, 776
(1995). 17
AMENDED CONCLUSIONS OF LAW
The Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act
by refusing to furnish and by unreasonable delay in fur-
nishing requested information relevant to the Union’s
performance of its duties as exclusive collective-
bargaining representative.
In all other respects, the Respondent has not commit-
ted the unfair labor practices alleged in the complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, DaimlerChrysler Corporation, Auburn Hills,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to timely respond and provide the Union
with requested information relevant to the Union’s per-
formance of its collective-bargaining duties as the exclu-
sive representative of an appropriate unit of the Respon-
dent’s employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the infor-
mation it requested in its letters dated June 22, July 21,
July 22 (excluding items 2 and 3), August 2, and Sep-
tember 15, 1999.
(b) Within 14 days after service by the Region, post at
its facility in Auburn Hills, Michigan, copies of the at-

17 Member Schaumber is of the view that when, as here, information
that is requested by a union is not presumptively relevant to the union’s
performance as bargaining representative, the burden is on the union to
demonstrate its relevance when requested by the employer. See gener-
ally his position in Artesia Ready Mix Concrete, 339 NLRB 1224
(2003). The Union failed to fulfill that burden with respect to these two
items of information. This is a further basis for dismissal regarding
these two items.
DAIMLERCHRYSLER CORP. 1331
tached notice marked “Appendix.”18 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 24, 1999.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
MEMBER LIEBMAN, dissenting in part.
Keith Valentin’s zeal as chief union steward no doubt
was a constant irritant to management. And his conduct
at times overstepped the Act’s protections. Nonetheless,
even rude stewards have rights when they are advancing
legitimate employee concerns. Accordingly, contrary to
the majority’s position, I agree with the judge (1) that the
Respondent’s notice of disciplinary investigation to
Valentin for allegedly fomenting a slowdown, was
unlawfully coercive under Section 8(a)(1) of the Act; and
(2) that Valentin did not lose the Act’s protection by us-
ing profanities in a grievance-related conversation with a
supervisor and that the written warning he was given
based in part on that conversation violated Section
8(a)(3) and (1). Otherwise, I join in most of the major-
ity’s findings.1

18 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 I agree with my colleagues that deferral to arbitration under Collyer
Insulated Wire, 192 NLRB 837 (1971), is inappropriate in this case.
For the reasons stated by the majority, I also agree that the Respondent
did not violate Sec. 8(a)(1) either by interrogating Valentin in connec-
tion with the authorship of a draft information request containing offen-
sive text, or by sending a letter to the Union alleging that Valentin was
abusing his time privileges as a steward.
In addition, I agree that Valentin’s performance evaluation did not
violate Sec. 8(a)(3), but solely on the ground that the adverse comments
at issue addressed alleged conduct that exceeded the statutorily pro-
tected scope of his responsibility as a steward.
Finally, I join the majority’s findings with respect to the Union’s in-
formation requests, except that I agree with the judge that the Respondent
violated Sec. 8(a)(5) by withholding the lease agreement for space in the
1. The Warning for Fomenting a “Slowdown”
A section of the parties’ supplemental contract pro-
vided that “[a]n adequate number of pool cars will be
made available” for unit employees, and that “[i]t is
Management’s intent to provide each individual at out-
state assignments with adequate transportation, either
pool car or rental vehicle.” This section also provided
that “[w]hen the demand of Corporation business causes
these cars to be unavailable, employees may be asked to
use their personal car and be reimbursed for all mileage,”
but concluded: “Employees will not be required to use a
personal car on corporation business if their wishes are to
the contrary.”
On November 4 and 5, 1998, Valentin authored three
e-mails to bargaining unit employees relating to pool
cars. The first recommended that employees refuse to
use personal vehicles on company business, citing the
contract section and emphasizing that “[w]hen you drive
your own vehicle, you assume all the responsibility and
liability” and that “[i]f you are involved in an accident,
the company can and will abrogate all responsibility.”
The second e-mail, sent to only one unit employee,
elaborated by explaining that when the employee drove
his own vehicle from home to an airport, he would have
to subtract his normal commuting expense from his work
expenses, and again noted that the employee could be
liable for accidents occurring at a greater distance from
home than his normal commute. Valentin continued:
Why not use your normal commute time to pick-up a
pool car? Often times BU members will be going out of
their way and “back tracking”. So what? Who’s [sic]
time are you saving? . . . The company could easily
negotiate with the Union for lease cars and/or more fa-
vorable pool car utilization. [The Union is] all ears if
the company has a proposal. . . . So then . . . when it
comes to pool cars, WORK THE RULE! Action speaks
louder than words.
The third e-mail covered several topics, but on the sub-
ject of shared pool cars urged as follows:
[M]ake damn sure that management coordinates the
who, what, when, or where. Don’t volunteer to find a
rider and make arrangements. Let management tell
you who your [sic] riding with. At that time, you have
an opportunity to shoot down their arrangement by
refering [sic] to your ‘team’ conflicts which are almost
certain to arise. Kapesh [sic]?

building to which a number of unit employees were relocated, as the lease
was potentially relevant to grievances arising from that relocation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1332
On November 8, Valentin was summoned to a meeting
with supervisors, where he was read a scripted statement
informing him of “possible discipline” for “potential
improprieties that have occurred associated with lotus
notes messages you sent on 11/4/98 and 11/5/98.” He
was given no other information, except that an investiga-
tion was in process and that he would be informed of the
result.
The majority finds the notice of possible discipline
lawful because Valentin’s e-mails fomented an unpro-
tected “slowdown.” However, the warning was unlawful
even if Valentin did in fact advocate an unprotected
slowdown, because it made no distinction between the
protected and unprotected content of his communica-
tions. Valentin was undisputedly defending unit em-
ployees’ explicit contractual right to decline to use per-
sonal cars for work. To that extent, his activity was fully
protected under Section 7. The warning he was given
failed to specify which of the comments in his e-mails—
or even which of the three messages—purportedly in-
cited a slowdown. Instead, the warning referred only to
“potential improprieties . . . associated with” the e-mails.
The warning was consequently so unspecific that it could
reasonably be interpreted as a threat of possible punish-
ment simply for Valentin’s attempting to enforce the
terms of the parties’ contract.2 Thus, the Respondent’s
defense—that it was contractually obligated to give ad-
vance warning of a disciplinary investigation that might
lead to discipline—necessarily fails; the warning given
was overbroad. On this ground at least, the notice vio-
lated Section 8(a)(1).3

2 See, e.g., Eastern Omni Constructors, Inc. v. NLRB, 170 F.3d 418,
423 (4th Cir. 1999); Engelhard Corp., 342 NLRB No. 5, slip op. at 16
(2004).
3 Because Valentin was calling on employees to exercise their con-
tractual right to a specific term of employment, I need not reach the
issue of whether his e-mails can also be construed as a call for an un-
protected slowdown under Board precedent. See Riverside Cement,
296 NLRB 840, 841–842 (1989) (use of personal tools); Cleveland
Pneumatic, 271 NLRB 425, 426 (1984), enfd. 777 F.2d 339 (6th Cir.
1985) (overtime). See also New York State Nurses Assn. (Mt. Sinai
Hospital), 334 NLRB 798, 803–806 (2001) (dissent). However, the
majority’s attempt to distinguish Cleveland Pneumatic and Riverside
Cement by asserting that here there was “no claim” that the Respondent
was violating the contract “in the manner in which it provided pool
cars,” is inaccurate. Valentin’s e-mails clearly indicated that the Re-
spondent was not meeting its contractual obligation to make an “ade-
quate number of pool cars” available and to “provide each individual
. . . with adequate transportation, either pool car or rental vehicle.”
Moreover, there is no basis for the majority’s suggestion that, simply
because the parties had a “mature and established collective-bargaining
relationship,” the Respondent’s unspecific warning would not reasona-
bly be understood to threaten retaliation for protected activity. Unfair
labor practices can, and sometimes are, committed in the context of
such relationships.
2. The Use of Profanities and the Written Warning
Valentin approached Supervisor John Lewandowski at
his work station, within hearing distance of other em-
ployees, and requested a grievance meeting to discuss a
recent discharge. Lewandowski declined to meet until
the following week. As the conversation continued,
Valentin raised his voice, called Lewandowski an “ass-
hole,” and used at least one other profanity. Valentin
was issued a written reprimand based on this incident
and on a previous incident involving an offensive draft
information request.4
Although the Respondent has a written rule prohibiting
the use of “abusive” language, the judge found from the
credited testimony that profanity is used “on a regular
basis” in the shop and “regularly” by both supervisors
and union officials in the processing of grievances. He
also found that Lewandowski himself had used profanity
during grievance meetings. The majority, however, finds
that Valentin lost the Act’s protection by using bad lan-
guage.5 I disagree.
To determine whether an employee loses protection
due to verbal insubordination requires the balancing of
four factors: (1) place of discussion; (2) subject matter;
(3) nature of the employee’s outburst; and (4) whether
the outburst was provoked by an unfair labor practice.
Felix Industries, 339 NLRB 195 (2003), enfd. 2004 WL
1498151 (D.C. Cir. 2004); Atlantic Steel Co., 245 NLRB
814 (1979). I agree with the majority that the second
factor weighs in favor of finding protection here, and that
the first and fourth factors tend to weigh against. How-
ever, I give the third factor—Valentin’s outburst—far
less weight than does the majority. Given the judge’s
finding that profanity was used “regularly” by both sides
in the grievance process, Valentin’s warning can only be
viewed as disparate enforcement.6 The regular use of
profanity in the Respondent’s workplace also diminishes
the weight of the first factor (place of discussion). Be-

4 We have found that the interrogation of Valentin relating to the
draft information incident was lawful. See fn.1.
5 According to the majority, Valentin also approached Lewandowski
in an “intimidating” manner. However, the judge made no fact or
credibility finding to this effect.
6 See, e.g., Majestic Metal Specialties, Inc., 92 NLRB 1854, 1864
(1951) (“Although Bissonnette may have used language which was not
polite according to parlor-room standards, it was typical of the conver-
sation used in industrial plants. . . . ”). Cf. Stanford Hotel, 344 NLRB
No. 69 (2005) (record did not show that employees regularly used foul
language at the hotel). Aluminum Co. of America, 338 NLRB 20
(2004), and Piper Realty Co., 313 NLRB 1289 (1994), cited by the
majority, are distinguishable. In Aluminum Co., the employee was on
probationary status and directed profanities at two different supervisors
on two different days, and the profanities were apparently calculated.
In Piper Realty, the profanities were used in a more extended conversa-
tion and the employee was actively resisting a new work procedure.
DAIMLERCHRYSLER CORP. 1333
cause Valentin was engaged in clearly protected activity,
I would find that his profanity on this one occasion did
not cause him to lose protection. The written warning he
received was therefore based in part on his protected
activity and consequently violated Section 8(a)(3) and
(1).7
APPENDIX
NOTICE TO EMPLOYEES
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 vio-
lated the National Labor Relations Act and has ordered us to
post and obey this notice.
WE WILL NOT refuse to provide the Union with re-
quested information relevant to the Union’s performance
of its collective-bargaining duties as your exclusive bar-
gaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union in a timely manner the
information it requested in its letters dated June 22, July
21, July 22 (excluding items 2 and 3), August 2, and Sep-
tember 15, 1999.
DAIMLERCHRYSLER CORPORATION
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on April 3, 4, and 5, 2000, in Detroit,
Michigan, pursuant to a second consolidated amended com-
plaint and notice of hearing (the complaint), issued by the Re-
gional Director for Region 7 of the National Labor Relations
Board (the Board) on January 20, 2000. The complaint, based
upon original and amended charges filed on various dates in
19991 and 2000 by International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW), Local 412, (Unit 53), AFL–CIO (the Charging
Party or Union), alleges that DaimlerChrysler Corpora-
tion (the Respondent or Employer), has engaged in certain
violations of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act). The Respondent filed a timely answer
to the complaint denying that it had committed any violations
of the Act.

7 The Respondent has not even contended, let alone shown, that it
would have issued the warning to Valentin based solely on the other
cited incident in which his conduct was not protected (the offensive
draft information request).
1 All dates in 1999 unless otherwise indicated JD–84–00.
Issues
The complaint alleges that the Respondent coercively inter-
rogated and threatened employees in violation of Section
8(a)(1) of the Act, issued an unfavorable performance evalua-
tion, a written reprimand and a one day disciplinary suspension
to employee Keith Valentin in violation of Section 8(a)(1) and
(3) of the Act, and refused to furnish or delayed in providing
requested information to the Union in violation of Section
8(a)(1) and (5) of the Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the manufacture,
nonretail sale and distribution of automobiles and other
automotive products, with an office and place of business
located in Auburn Hills, Michigan. Respondent, in conducting
its business operations, derived gross revenues in excess of
$500,000, and manufactured, sold, and distributed from facili-
ties located within the state of Michigan, products valued in
excess of $50,000, of which products valued in excess of
$50,000 were shipped to points located outside the State of
Michigan. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On May 21, Administrative Law Judge Arthur J. Amchan is-
sued a decision (GC Exh. 10), involving the same parties that
are in the subject complaint. He found that the Respondent
violated Section 8(a)(1) of the Act by threatening Union Stew-
ard Keith Valentin with discipline for filing information re-
quests and attempting to define and limit the rights of Valentin
as a steward. Additionally, Judge Amchan found that the Re-
spondent, by refusing to provide the Union requested informa-
tion relevant to the performance of its collective-bargaining
duties, violated Section 8(a)(1) and (5) of the Act. That deci-
sion is presently pending Board review.
At all material times Valentin has held the position of chief
steward while Douglas Peacock serves as chairperson of the
Union. Respondent representatives involved in the subject case
include Supervisors Mark Fleszar, Teri Kowalski, John
Lewandowski, and Craig Miller, Senior Manager Robert Page,

2 At the commencement of the hearing, Respondent reaffirmed its af-
firmative defense raised in the answer to the complaint, that the Board’s
allegations should be deferred to the parties’ grievance-arbitration
procedure. I denied the motion, and held that the Board does not nor-
mally defer statutory violations or issues concerning a refusal to supply
information to the grievance-arbitration process and cited Postal Ser-
vice, 302 NLRB 918 (1991), and Postal Service, 280 NLRB 685 fn. 2
(1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1334
Labor Relations Supervisors Timothy Martin and John Karas,
and Corporate Union Relations official Morris Simms.
B. The 8(a)(1) Violations
1. Allegations concerning Timothy Martin
The General Counsel alleges in paragraph 10(a) of the
complaint that in late February or early March 1999, Martin
told employees that they should not encourage or direct other
employees to decline to participate in Respondent’s appraisal
process.
On October 20, 1998, Peacock sent a memorandum to labor
relations seeking information on the qualifications of bargain-
ing unit employees to participate in the appraisal process (GC
Exh. 15). In that memorandum, Peacock stated that “until I
receive this information, I will inform all B/U employees to
postpone their participation in the appraisal process until they
have had the chance to review the qualifications of the indi-
viduals slated to review their behaviors and performance.” Ac-
cording to Peacock, in a meeting with Martin in early March
1999, Martin stated that certain individuals had concerns
with the last paragraph of the memorandum that you were
directing the workforce to not perform work.
Martin testified that he did not commence his job as labor re-
lations supervisor in Unit 53 until late March 1999, and there-
fore, could not have met with Peacock in early March 1999 at
the Auburn Hills, facility. Likewise, he denied making the
statement.
The general test applied to determine whether employer
statements violate Section 8(a)(1) of the Act is “whether the
employer engaged in conduct which reasonably tends to inter-
fere with, restrain, or coerce employees in the free exercise of
rights under the Act.” NLRB v. Aimet, Inc., 987 F.2d 445 (7th
Cir. 1993); Reeves Bros., 320 NLRB 1082 (1996).
Although I agree that the subject memorandum is pro-
tected activity under the Act, I am not persuaded that Mar-
tin’s statement, even if made, rises to the level of an unfair
labor practice. In this regard, a statement that certain individu-
als have concerns that you were directing the bargaining
unit not to perform work is not a threat or interrogation.
It is merely an observation or an opinion, based on the
contents of the memorandum. No investigation or any
discipline was ever visited upon Peacock based on the state-
ments contained in the memorandum.
Under these circumstances, I recommend that paragraph
10(a) of the complaint be dismissed.
2. Allegations concerning Robert Page and Mark Fleszar
The General Counsel alleges in paragraph 10(b) of the com-
plaint that on November 6, 1998, Page and Fleszar threat-
ened an employee with discipline in retaliation for his
activities on behalf of the Union.
On November 4 and 5, 1998, Valentin authored three
e-mails to bargaining unit employees concerning em-
ployee’s starting time and the use of pool cars3 (GC Exh. 14).

3 The parties’ local supplemental agreement addresses the subject of
pool cars at pp. 39 and 47 (GC Exh. 7). It states in pertinent part that
“An adequate number of pool cars will be made available at all plants
On November 6, 1998, Valentin was directed by Page and
Fleszar to attend a meeting. Peacock was asked to attend the
meeting because discipline could be taken against Valentin. At
the commencement of the meeting, Page read a script that said,
“You are being placed on notice of possible discipline up to and
including discharge for potential improprieties that have oc-
curred associated with lotus notes messages you sent on
11/4/98 and 11/5/98. An investigation and review of the
situation is being conducted. You will be advised of the
decision upon completion of the investigation” (GC Exh. 13).
Valentin testified that he sent the e-mails to bargaining unit
employees to clarify the Union’s interpretation of the parties’
local agreement on the use of pool cars. Indeed, he reminded
employees that the Union strongly recommends against
using personal vehicles on company business because of
liability questions.
Respondent defends its conduct on the basis that the e-
mails suggest that employees should minimize the use of
their personal vehicles when conducting company business. It
asserts that such conduct is in effect directing the workforce to
slow down and not to do their job. Likewise, it violates the no-
strike clause in the parties’ collective-bargaining agreement.
Since the Respondent has only 44 pool cars and there are
approximately 140 employees that might need them, if
personal vehicles are not utilized once the allotment of
pool cars has been exhausted, work scheduling and produc-
tion could suffer.
I reject the Respondent’s defense and find that the investiga-
tion conducted by Page and Fleszar was threatening and coer-
cive. First, I conclude that the e-mails are protected conduct
since they discuss a subject that is contained in the parties’
local supplemental agreement. Second, Valentin was merely
informing bargaining unit employees what the agreement al-
ready provided; “employees will not be required to use a per-
sonal car on Corporation business if their wishes are to the
contrary.” An investigation and threat of being placed on notice
of possible discipline up to and including discharge for sending
e-mail messages to bargaining unit employees on the interpreta-
tion of issues contained in the parties’ agreement is coercive
and violative of employee rights guaranteed in Section 7 of the
Act. Cleveland Pneumatic Co., 271 NLRB 425 (1984).
Under these circumstances, I find that Respondent, by con-
ducting the investigation and threatening Valentin with disci-
pline up to and including discharge, violated Section 8(a)(1) of
the Act.

PTO services for Advanced Engineering use. Management will discuss
required pool car numbers with the Union before launches occur and
will assign no more than four employees per each plant pool vehicle
from launch locations. It is Management’s intent to provide each indi-
vidual at outstate assignments with adequate transportation, either pool
car or rental vehicle.” “Both parties agreed that when requested, pool
cars, when available, will be provided for transportation from CTC to
the offsite work location and return. When the demand of Corporation
business causes these cars to be unavailable, employees may be asked
to use their personal car and be reimbursed for all mileage based on
corporate guidelines. Employees will not be required to use a personal
car on corporation business if their wishes are to the contrary.”
DAIMLERCHRYSLER CORP. 1335
3. Allegations concerning Morris Simms
The General Counsel alleges in paragraph 10 (c) of the com-
plaint that on June 8, Simms threatened Valentin with disci-
pline in retaliation for his activities on behalf and in support of
the Union.
By letter dated June 8, Simms informed International Union
official, Vinnie Pagano, that Valentin was abusing his union
office and has failed to perform scheduled work assignments.4
In advance of writing the letter to Pagano, Simms was pro-
vided memoranda from a number of supervisors detailing
Valentin’s alleged abuses of the parties’ agreement. Simms was
informed that on May 15, Valentin never requested permission
of the manager on duty to be released from work to engage in
union activities. Likewise, the manager on duty for May 16
informed labor relations that Valentin did not report to his over-
time assignment on that date, and did not inform the manager
of his change in work status. Lastly, Labor Relations was ap-
prised that on May 30, Valentin left his overtime assignment to
investigate a grievance but refused to fully respond to the man-
ager on duty as to the nature of the grievance and when it oc-
curred (R. Exh. 12).
The parties’ national agreement at Section 16(d) states in
pertinent part that “The privilege of Stewards to leave their
work during working hours without loss of time or pay is sub-

4 The letter states in pertinent part:
Since taking office in Unit 53, Local 412, Keith
Valentin has maintained that his full-time position is as
Steward, and as such, he has not performed any of his regular
work assignments during normal non-premium working hours.
He has also found it “necessary” to perform a great deal of un-
ion business on overtime. In the interest of the relation-
ship, and in keeping with the intent of Section (16) of the
National Engineering Agreement, management has in
good faith allowed Mr. Valentin a great deal of latitude in this
regard. Recent incidents of time off the job during premium
periods, however, are considered by the Corporation to
be blatant abuses of the privilege. Mr. Valentin was scheduled
to work the weekends of May 15, and May 29, 1999, including
Memorial Day, eight (8) hours each day. During the forty hours of
premium pay time listed above, Mr. Valentin failed to per-
form any of his assigned work. He had accepted the
scheduled overtime to perform specific and necessary assign-
ments, yet in each case, with little or no explanation, he
claimed the time was used to investigate grievances.
Claiming to be “investigating grievances” is not consid-
ered justification for his complete failure to perform
schedule assignments and constitutes an abuse in violation of Sec-
tion (16) of the Agreement.
The Corporation therefore requests the International to take
appropriate action to correct the non-compliance with the in-
tents of Section (16) of the National Engineering Agree-
ment. It is the hope of the Corporation that the Union’s
attention to this matter will result in a reasonable resolu-
tion. However, in the event that Mr. Valentin continues
to abuse the privilege of time off the job for grievance
investigation without loss of pay, the corporation will
find it necessary to take appropriate corrective action.
Such action may include discipline up to and including
discharge, and/or denial of future use of the privilege to
take time off the job for grievance investigation without
loss of pay.
ject to the understanding that the time will be devoted to the
prompt handling of grievances and will not be abused, and that
the stewards will perform the work to which they are assigned
at all times except when necessary to leave their work to handle
grievances as provided herein.” Section 16(e) states that “When
making arrangements to leave their jobs to investigate or pre-
sent grievances, Stewards shall advise their supervisor of the
number and nature of those grievances” and Section 16(f) states
that “Stewards during overtime periods or weekend work may
request permission to leave their assigned work only to investi-
gate a grievance which occurs during that premium time pe-
riod.”
On December 3, Valentin filed a grievance challenging the
threat of discipline contained in the June 8 letter, and sought to
rescind the letter and have all copies expunged from Respon-
dent’s files.
In determining whether the June 8 letter violates the Act, I
find that the parties have a differing and arguable interpretation
of Section 16 of their agreement. In this regard, Respondent
opines that Valentin used an abundance of premium time to
conduct his grievance investigations and refused to tell his su-
pervisors the nature of the grievances or obtain permission to
leave the work site before initiating the grievance investiga-
tions. As noted above, Valentin filed a grievance contesting the
June 8 letter. I further note, however, that the abuses Respon-
dent cites in the June 8 letter are addressed in Section 16 of the
agreement and Valentin’s actions appear to contravene some of
those provisions.
Under these circumstances, I find that the June 8 letter does
not violate Section 8(a)(1) of the Act. Rather, the letter merely
points out that Respondent believes the parties’ agreement has
been violated and if Valentin continues to abuse those provi-
sions, discipline could be forthcoming. Although Valentin filed
a grievance over the letter, it was not timely as it was filed on
December 3, a period of approximately 6 months after the letter
was written. Moreover, the record is silent as to what action the
International Union took in response to the Simms’ letter but
the record confirms that no discipline was visited upon Valentin
and nothing was placed in his personnel file regarding the is-
sues raised in the June 8 letter.
Accordingly, I conclude that the letter and the reference in
the last paragraph to potential discipline if Valentin continues
to abuse the parties’ agreement, does not violate Section 8(a)(1)
of the Act, and I recommend that paragraph 10(c) of the com-
plaint be dismissed.
4. Allegations concerning John Karas and John Lewandowski
The General Counsel alleges in paragraph 10(d) of the com-
plaint that on March 24, Karas and Lewandowski coercively
interrogated its employees regarding their union activities.
On March 17, Valentin prepared a draft request for informa-
tion in connection with the grievance investigation surrounding
the termination of probationary employee Lloyd Cooley (GC
Exh. 26). Item 7 on the draft inquired whether Lewandowski is
taking drugs or is being treated by a mental health profes-
sional and sought copies of his personnel, medical, and
mental health files. The Union, in the draft, apprised the Re-
spondent that if an explanation was required as to the relevancy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1336
of the information to contact Valentin or Peacock. Valentin,
after xeroxing the draft, forwarded it to Peacock who decided
the information requested in item 7 should not be sought. Ac-
cordingly, a finalized version of the information request was
served on March 18, to designated Respondent officials (GC
Exh. 27). Apparently, copies of the draft information request
were inadvertently left at the Xerox machine and a number of
supervisors including Lewandowski ultimately obtained a copy
of the draft. Lewandowski was upset and immediately tele-
phoned Karas to inform him about the content of the draft with
specific emphasis placed on item 7. Karas received a copy of
the draft on March 18, from Supervisor Steve Urbanec.
On March 23, Karas attempted to arrange an investigatory
meeting with Valentin and Peacock to discuss the draft infor-
mation request. Peacock informed Karas that Valentin was not
available to meet on that date due to the press of union busi-
ness. Ultimately a meeting was arranged and did take place on
March 24, with Peacock and Valentin in attendance. Karas
informed Valentin that this was an investigatory meeting and
commenced the meeting by asking Valentin a number of ques-
tions.5 To each of the questions,5 Valentin responded, “no
comment.”
The Respondent defends its conduct and argues that the in-
formation sought in item 7 went over the line and constituted
harassment and intimidation of a supervisor. I reject this de-
fense for a number of reasons. First, the request was made in
order to obtain information to determine whether to file a
grievance over Lewandowski’s termination of probationary
employee Lloyd Cooley. Second, the objectionable information
sought in item 7 was contained in a draft document, that ulti-
mately was issued in final form without seeking the personnel,
medical, or mental health records for Lewandowski. The draft
also informed the Respondent that if they had any questions
concerning the relevancy of the information to contact Valentin
or Peacock. Third, by the time the investigatory meeting oc-
curred on March 24, the Respondent was in possession of the
final version of the information request that did not contain the
objectionable material. Accordingly, there was no reason to
conduct an investigatory meeting or to question Valentin about
the content of the draft. I find that such interrogation was di-
rected at Valentin solely as a result of his union position and
was retaliatory for his vigorous pursuit of other grievances and
numerous information requests.
Under these circumstances, I find that the draft information
request was protected conduct, and Respondent’s coercive inter-
rogation of Valentin regarding its contents, is violative of Section
8(a)(1) of the Act.
C. The 8(a)(1) and (3) Violations
1. The unfavorable performance evaluation
The General Counsel alleges in paragraph 11(a) of the com-
plaint that on January 23, Craig Miller, issued an unfavorable
performance evaluation.

5 Some of the questions included, “Who wrote the draft,” “Is it on a
hard disc,” “Did you reproduce the document,” “Did you show the
document to anyone” and “Did you distribute the document.”
In Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management Corp.,
462 U.S. 393, 399–403 (1993). In Manno Electric, 321 NLRB
278 fn. 12 (1996), the Board restated the test as follows. The
General Counsel has the burden to persuade that antiunion sen-
timent was a substantial or motivating factor in the challenged
employer decision. The burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even if the employee had not engaged in
protected activity.
As a salaried plant engineer, Valentin is provided a perform-
ance review and appraisal on a yearly basis. In order to give
greater credibility to the structure of the performance appraisal
process, anonymous multiple input-provider comments are
utilized. Each year employees are requested to provide up to six
input providers that can be used to provide comments for the
appraisal process. Likewise, the first-line supervisor may also
utilize up to six input providers to provide comments for inser-
tion in the performance appraisal. Since Valentin refused to
provide any input providers, Miller sought two other providers
beside himself and prepared the yearly appraisal. Valentin first
reviewed a preliminary draft of his 1998 appraisal in early
January 1999 and was issued the final version on January 23
(GC Exh. 16). On that date, Miller held a lengthy meeting with
Valentin and Peacock to discuss the performance evaluation.
Valentin apprised Miller that he strenuously objected to the
numerous references to his union activities in the narrative
portions of the appraisal and sought specifically which of the
union related comments were related to which input provider.
Miller, although he should not have revealed the names of the
input providers, told Valentin who they were but with the ex-
ception of his comments, could not match up the name of the
input providers with their individual comments in each section
of the appraisal. Valentin expressed his opinion that due to his
numerous union responsibilities, he should not be given a
yearly performance appraisal and in any event, the comments
about his union activities should not be included in the ap-
praisal. Miller testified that the comments about Valentin’s
union activities were inserted in the appraisal because he could
not evaluate certain aspects of his performance due to his union
responsibilities. In response, Valentin apprised Miller that on
weekends and when performing overtime assignments other
supervisors observed his performance and they should have
been consulted for input into the evaluation.
Peacock credibly testified that he spends approximately 50
percent of his time on union activities. Peacock has never had
his union activities referred to in his yearly performance
evaluation. Moreover, Peacock indicated that he was not aware
DAIMLERCHRYSLER CORP. 1337
of any other union official at the Respondent that had com-
ments about their union activities inserted in their performance
evaluation. Lastly, Martin admitted that full time union official,
Karieem Schkoor, who is also in Unit 53, was not rated and did
not receive a 1998-performance evaluation. Martin also agreed
that Schkoor similarly to Valentin enjoys the benefits and pro-
tections of the parties’ collective-bargaining agreement.
Although the final overall rating assessed to Valentin was
that of a contributor, the section in the appraisal titled behavior
ratings was not evaluated. Indeed, Miller did not assign any
rating for the 11 behavior categories listed in the appraisal. The
absence of ratings for this evaluation factor can negatively im-
pact an employee’s chances for promotion or efforts to transfer
into another unit of the Respondent’s workforce. Under these
circumstances, I am in agreement with the General Counsel that
the appraisal comments involving Valentin’s union activities
should not have appeared in the evaluation and violate the
guarantees found in Section 7 of the Act. Likewise, I find that
the Respondent exhibited disparate treatment when either not
including union activities in the evaluation of Peacock or not
rating and issuing a 1998 performance evaluation for full-time
union official Schkoor, in comparison to Valentin.
For all of the above reasons, I find that by referencing the
union activities of Valentin in his 1998 performance evaluation,
Respondent restrained and coerced him in the exercise of the
rights guaranteed in Section 7 of the Act. Therefore, the Re-
spondent violated Section 8(a)(1) and (3) of the Act. Indiana
Hospital, 315 NLRB 647, 649 (1994).
2. The written warning
The General Counsel alleges in paragraph 11(b) of the com-
plaint that on April 6, Page issued a written reprimand to
Valentin (GC Exh. 28).6
The facts and my finding concerning the March 17 informa-
tion request (GC Exh. 26) are set forth in Section B (4) above.
In regard to the March 25 incident, the record reflects that
Valentin approached Lewandowski at his worksite on that date
in an effort to schedule a grievance investigation meeting con-
cerning discharged probationary employee Cooley. Valentin
sought to schedule the meeting immediately while

6 The April 6 written warning is titled “Written Warning for harass-
ment, Inappropriate Conduct, Intimidating Behavior and Using Abusive
Language and states in pertinent part:
On March 18, 1999, you circulated a memorandum regarding
a “Request for Information Pursuant to a Grievance Investiga-
tion.” In the memo, you requested personal and confiden-
tial information relating to AME-PT Supervisor John
Lewandowski in an inappropriate and unprofessional manner.
Moreover, on March 25, 1999, while attempting to
schedule a grievance investigation with Mr. Lewandowski,
you used abusive language. The Company views your language
and behavior towards Mr. Lewandowski as being harassing, in-
timidating and unacceptable.
Therefore, effective April 6, 1999, you are being given this
formal written warning for harassing Mr. Lewandowski, in-
appropriate conduct, intimidating behavior and using abu-
sive language.
Lewandowski suggested that it take place the following week.7
Valentin admits that he raised his voice and called
Lewandowski an “asshole” but denies using the term “bullshit”
and “fuck this shit.” Two employees, who were sitting one
cubicle away and overheard Valentin and Lewandowski, sub-
mitted written statements concerning the incident. Both state-
ments confirm that Valentin used the word “bullshit” during his
conversation with Lewandowski (R. Exh. 11).
Peacock credibly testified that profanity is often used in the
shop and he has heard such language on a regular basis. Like-
wise, profanity is regularly used by both Respondent supervi-
sors and union officials in the resolution of grievances between
the parties. Indeed, Peacock testified that Lewandowski has
used profanity during grievance meetings in which he was pre-
sent.
Respondent defends its action in issuing the written warning
regarding the March 25 incident between Valentin and
Lewandowski on its standards of conduct rule #14 that states in
pertinent part “ . . . . using abusive language to others” (R. Exh.
9). Likewise, Respondent asserts that it was consistent when it
issued a written warning to bargaining unit employee Tammy
Miller on November 29, for using words such as “asshole and
bullshit” in a discussion with Valentin.
I conclude that a good deal of leeway is permitted when Re-
spondent and union officials are engaged in robust debate over
grievances and other contract issues. An employee’s right to
engage in concerted activity may permit some leeway for im-
pulsive behavior that must be balanced against the employer’s
right to maintain order and respect. I do not find that the word’s
“asshole,” “bullshit” or “fuck this shit” is so flagrant or egre-
gious to take it out of the protection of Section 7 of the Act. See
Indian Hills Care Center, 321 NLRB 144, 151 (1996), and
Felix Industries 331 NLRB 144 (2000). Moreover, I note that
the parties regularly use profanity when meeting with each
other to resolve grievances and such language is common prac-
tice on the shop floor. Under these circumstances, I find that
when Valentin used such language in his discussion with
Lewandowski on March 25 to schedule a grievance investiga-
tion, it did not lose the protection of the Act.
Under these circumstances, and particularly noting my find-
ings regarding the March 17 information draft in B (4) above, I
conclude that the written warning issued to Valentin on April 6
was given to him based on his vigorous pursuit of union activi-
ties. Indeed, under the Wright Line guidelines, I find that the
Respondent would not have issued the written warning if
Valentin had not engaged in protected conduct. Therefore, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
3. The disciplinary suspension
The General Counsel alleges in paragraph 11 (c) of the com-
plaint that Page issued a 1-day disciplinary suspension to
Valentin.

7 On March 26, Lewandowski sent Valentin a memorandum indicat-
ing his availability for the grievance investigation meeting on March
29, 30, and 31 (GC Exh. 60). Valentin filed Grievance 99-53-013 on
March 24 concerning the incident (GC Exh. 59). The Respondent an-
swered the grievance on March 30, and thereafter by Labor Relations
on April 29 (GC Exh. 61).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1338
On the morning of April 23, Valentin approached Teri
Kowalski and asked if he could have a discussion with her.
Kowalski responded that she needed to take care of
something first but then she could meet with Valentin. Since
the person that Kowalski was looking for was not available,
Kowalski agreed to meet with Valentin and they proceeded to a
small conference room. Valentin, after closing the door to the
conference room, apprised Kowalski that he was conducting a
grievance investigation and under no circumstances should she
talk with any bargaining unit auditors about the manufacturing
quality assurance system (MQAS) until they held a meeting the
following week. While Valentin denies informing Kowalski
that if she met with the auditors before he could schedule a
meeting, he would have her “ass” up to labor relations so fast
and pointed his finger in her face, I am of the opinion that such
a statement was made by Valentin. In this regard, Kowalski
impressed me as a sincere and forthright witness who was very
precise in her testimony. Additionally, immediately after the
meeting on April 23, her direct supervisor instructed Kowalski
to memorialize what took place during the meeting (R. Exh. 4).
That statement fully comports with her testimony. Kowalski
further testified that Valentin’s voice continued to escalate
during the meeting and he repeated that Kowalski had no right
to make auditing a mandatory subject for bargaining unit em-
ployees. After Valentin said this, Kowalski informed Valentin
that the conversation was over and she got up from the table
and proceeded towards the door. Valentin began to scream and
point his finger in Kowalski’s face and told her she better listen
to him. Valentin then leaned his arm on the door and attempted
to block Kowalski’s exit from the conference room. Kowalski
was able to grab the door-handle and open the door but as she
was leaving the room, Valentin warned her not to approach any
bargaining unit auditors and stated he meant it.
Valentin admitted that the April 23 meeting became conten-
tious and he did use the word “bullshit” during the meeting. He
denies, however, that he screamed at Kowalski, was abusive or
attempted to block her egress from the conference room.
The record reflects that this was the first grievance meeting
that Kowalski had with Valentin but she credibly testified that
since that meeting, no other union official has ever treated her
like this. I note that Kowalski is a petite woman who is consid-
erably smaller in frame and height than Valentin. Thus, it was
not unreasonable for Kowalski to be intimidated by Valentin’s
conduct and concerned when her egress from the conference
room was temporarily blocked. I conclude that the conduct
engaged in by Valentin during the April 23 meeting went be-
yond the pale of robust debate, and the leeway that is normally
permitted in discussions between labor and management. In-
deed, the totality of the events including the screaming, abusive
language, intimidation, finger pointing, and temporarily block-
ing the egress of Kowalski from the conference room were
flagrant and egregious. Thus, it leads me to believe that it ex-
ceeded the bounds of protected conduct.
On May 10, Page and Martin held a meeting with Valentin
and Peacock to discuss the events that took place on April 23.
Valentin viewed the meeting as interrogation and refused to
answer the majority of questions that were asked. At the con-
clusion of the meeting, Peacock asked Martin whether disci-
pline would result as a result of the April 23 incident. Martin,
according to Peacock, said “he did not anticipate any discipline
due to the he said, she said nature of the meeting.” Martin de-
nies that he made such a statement and testified that he told
Valentin and Peacock that it is out of his control and we will
see what happens. The record is clear, however, that Martin did
not have the independent authority to visit any discipline upon
Valentin. Rather, Corporate Union Relations must approve any
discipline that is given to a union official. Indeed, Simms credi-
bly testified that he reviewed the Valentin-Kowalski incident
and approved the discipline.
For all of the above reasons, I find that the Respondent
would have issued the 1-day disciplinary suspension to Valen-
tin even in the absence of his protected activities. Therefore, I
recommend that paragraph 11(c) of the complaint be dismissed.
D. The 8(a)(1) and (5) Violations
The General Counsel in paragraphs 13 (a) through (e), (i) and
(j) and paragraphs 17 (a) through (e), (i) and (j) alleges that
certain information was requested on the dates indicated therein
and that the Respondent refused to furnish or delayed in provid-
ing the requested information.8
The obligation under Section 8(a)(1) and (5) of the Act on
the part of an employer to supply the statutory bargaining agent
with relevant information concerning the processing of griev-
ances and contract negotiations is well and long established.
NLRB v. Truitt Mfg. Co. 351 U.S. 149 (1956); Shoppers Food
Warehouse, 315 NLRB 258 (1994). Unreasonable delay in
furnishing such information is as much a violation of the Act as
a refusal to furnish any information at all. Bundy Corp. 292
NLRB 671 (1989) (violation of the Act to ignore or delay sup-
plying the Union with necessary information for 2-1/2 months).
As a generic defense to the information allegations in the
complaint, the Respondent asserts that Martin did not commence
his job as the labor relations point of contact for Unit 53 until late
March 1999. In addition to the 150 employees in that bargain-
ing unit, Martin is also responsible as labor relations contact for
the approximately 500 bargaining unit employees in the Local
212 unit and another group of 125 employees. Additionally, at
the end of July 1999, Martin commenced collective bargaining
negotiations for employees in Unit 53 and Local 212 that con-
sumed all of his full time. Preparation time for these negotia-
tions began just after his arrival in late March 1999 and contin-
ued on a regular basis until the end of July 1999.
1. Complaint paragraphs 13(a) and 17 (a): June 15, information
requests for
Valentin’s 1998 performance appraisal
On June 11 and 14, Valentin filed two grievances (99–53–
027 and 028) concerning his 1998 performance evaluation (GC
Exh. 17). On June 15, Valentin filed a lengthy request for in-
formation pursuant to the grievance investigation of the two
above noted grievances. It consists of 31 questions regarding
substantive comments and aspects of the performance evalua-
tion (GC Exh. 18). By memorandum dated July 20, Martin

8 At the commencement of the hearing, the General Counsel moved to
delete pars. 13(f), (g), (h) and corresponding pars. 17(f), (g) and (h)
from the complaint. The Motion was granted without opposition.
DAIMLERCHRYSLER CORP. 1339
comprehensively responded individually to the 31 questions
raised by Valentin (GC Exh. 19).
Under these circumstances, I find that Respondent fully and
completely responded to the requests for information raised by
Valentin and therefore, recommend that paragraphs 13 (a) and
17 (a) of the complaint be dismissed.
2. Complaint paragraphs 13(b) and 17(b): June 22, information
requests in
connection with Valentin’s 1998 performance appraisal
On June 22, Valentin requested six items of information in
connection with his 1998 performance evaluation for use in
processing the two grievances noted above (GC Exh. 20). By
memorandum dated August 4, Valentin inquired of Martin the
status of his June 22 request for information (GC Exh. 21). By
memorandum dated August 4, Martin apprised Valentin that the
information requested on June 22, is in the process of being
accumulated (GC Exh. 22). By memorandum dated August 24,
Martin responded to Valentin’s June 22 request for information.
In items 1, 2, and 5, Respondent provided the requested infor-
mation. For items 3, 4, and 6, the Respondent stated, “The
reason for the request is not apparent, please explain the
relevance of the information.”
I conclude that the 1998 Chrysler appraisal process guide,
the appraisal behavior training guide and the information
sought for performance appraisals in calendar years 1996 and
1997 (items 3, 4, and 6), were relevant and necessary. Thus,
such information should have been provided to the Union to
support the grievances filed over Valentin’s 1998 appraisal
evaluation. Additionally, I find a 3-month delay to tell the Un-
ion to explain the relevance of the information and to finally
provide the information in items 1, 2, and 5 are dilatory. I also
note that it was necessary for Valentin to inquire on August 4,
about the status of his June 22 request for information. At this
point, Respondent had delayed for over 1-1/2 months to even
communicate with the Union concerning the initial request for
information.
Under these circumstances, I find that when the Respondent
refused to furnish the information or delayed in providing the
information noted above, it violated Section 8(a)(1) and (5) of
the Act.
3. Complaint paragraphs 13 (c) and 17(c): July 21, information
in connection with AME-PT
bargaining unit seating arrangements
On July 21, Valentin filed a request for information in con-
nection with a grievance investigation (99–53–034) concerning
the relocation and layout of the AME-PT department bargain-
ing unit and the employees’ seating arrangements (GC Exh.
32). The request involved nine items of information. By memo-
randum dated August 30, Respondent provided an answer to
the Union’s request for information (GC Exh. 34). In that re-
sponse, the Respondent denied the information requested in
items 1 through 7, promised to discuss the reason why certain
unit 53 members were assigned to private as opposed to shared
cubicle’s, and refused to discuss item 9 as it is argumentative
and irrelevant.
I conclude that the requests for information such as agendas,
meetings, and the names of Unit 53 members that individually
contacted Respondent regarding the seating arrangements are
pertinent to the grievance investigation. In this regard, these
items of information were sought in connection with the griev-
ance that alleged “Management failed to involve the Union in
the AME-PT Department Rearrangement and layout of the
workplace.” Thus, the information is necessary and relevant to
the Union to move forward with the grievance. Likewise, I
credit Valentin’s testimony that despite the promise of the Re-
spondent to discuss the issues surrounding private and shared
cubicles, no such meeting or discussion took place. In regard to
item 9, I believe such an explanation is relevant and is not ar-
gumentative.
Under these circumstances, I find that when the Respondent
refused to provide the information alleged in paragraphs 13(c)
and 17(c) of the complaint, it violated Section 8(a)(1) and (5) of
the Act.
4. Complaint paragraphs 13(d) and 17(d): July 22, information
requests in connection with the
partial relocation to the Comerica building
On July 22, Valentin requested seven items of information to
support three grievances (99–53–034, 035 and 036) in connec-
tion with the partial relocation of AME-PT employees to the
Comerica building. On July 21, in response to grievance 99–
53–036, Respondent indicated that information concerning
the timing, cubicle assignments, and any details of the
move were posted outside one of the supervisor’s office in
May 1999 (GC Exh. 38). On August 30, the Respondent re-
sponded to the Union’s July 22 information request, and ques-
tioned the relevance of the information being sought. Addition-
ally, in regard to items 4 and 5 of the information request,
the Respondent asserted that collecting the information would
be extremely burdensome and urged the Union to explain the
relevance of the request and narrow its scope (GC Exh. 39). On
January 19, 2000, Respondent communicated with the Union
regarding the July 22 information request (GC Exh. 42). The
Respondent, in response to item 1, apprised the Union that the
business plan developed for the partial relocation of AME-PT
employees from DCTC to the Comerica building was posted
outside AME-PT Manager Don Lucas’ office prior to May 30,
and remained posted through the end of July 1999. However,
the information was disposed of in late 1999. In regard to items
2 and 3, the appropriation request and the lease, Respondent
refused to produce the information. With respect to items 4, 5,
and 6, the Respondent provided answers to the Union. Concern-
ing item 7, in which the Union sought a listing and detailed
description of various options that were considered before de-
ciding on the partial relocation to the Comerica building, the
Respondent determined that such information was irrelevant
and refused to provide it.
Based on the forgoing, I conclude that items 1, 2, and 3 of
the July 22 information request were necessary and relevant for
the Union to investigate and process the three grievances. With
respect to items 4, 5, and 6, the Respondent ultimately provided
the information but not in a timely manner. In regard to item 7,
I agree with the Respondent’s position that alternative options
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1340
considered are not relevant to grieve or negotiate over the ulti-
mate relocation to the Comerica building. Accordingly, I find
that Respondent violated Section 8(a)(1) and (5) of the Act by
either refusing to provide necessary and relevant information or
refusing to provide information in a timely manner.
5. Complaint paragraphs 13(e) and 17(e): August 2, informa-
tion request in connection with
unscheduled overtime
On August 2, the Union sought information pursuant to a
grievance investigation on the method of scheduling unsched-
uled overtime (GC Exh. 43). On August 30, Respondent com-
municated with the Union and refused to provide time cards,
asserted that overtime equalization lists should already be in the
Union’s possession and declined to give further explanations as
to the method of scheduling unscheduled overtime (GC Exh.
44). On September 7, the Union wrote to the Respondent in an
effort to further explain and clarify its need for the information
(GC Exh. 48). On December 13, the Union again communi-
cated with the Respondent and confirmed that it was not re-
questing a copy of the time cards. Rather, the Union apprised
the Respondent that it was requesting an explanation for each
instance of unscheduled overtime during the pay period from
July 19 to August 1. The Union further explained to the Re-
spondent that it has received a number of complaints from Unit
53 members that unscheduled overtime is being awarded on a
discriminatory basis (GC Exh. 49). On January 19, 2000, the
Respondent answered the Union and stated, “In reviewing the
time card for the requested period, I discovered approximately
30 individuals had worked unscheduled overtime. As discussed,
most of the abuse is related to the tremendous travel require-
ments of the Transmission group. However, in accordance with
the Collective Bargaining Agreement, Management has en-
deavored to equalize overtime within a reasonable spread. In
addition, the Director of AME-Transmission (Larry Mitchell)
has distributed a letter to all AME Transmission Supervisors
addressing the problem. Further investigation into the issue
reveals that there are no grievances on file relative to overtime
at the Second Step of the grievance procedure.”
Based on the forgoing, and noting that a practice has devel-
oped for Respondent to respond to the Union on questions
regarding unscheduled overtime, I conclude that the Au-
gust 2 request for information was necessary and relevant to
pursue a grievance investigation on that subject. Although not
timely, the Respondent ultimately provided the information to
the Union on January 19, 2000. Because the Respondent took
in excess of 5 months to provide the Union with the informa-
tion it requested on August 2, I find that it violated Section
8(a)(1) and (5) of the Act.
6. Complaint paragraphs 13(i) and 17(i): September 15, infor-
mation requests in connection with
the employee survey
On September 15, Valentin requested four items of informa-
tion pursuant to a grievance investigation in connection with
the two most recent survey results conducted for AME-PT (GC
Exh. 50). On October 18, Respondent answered the Union’s
September 15 request and stated, “Periodically, the Corporation
has and will continue to conduct surveys. However, the com-
pany fails to understand how the survey could possibly be the
subject of a grievance. In addition, all information gleaned from
the surveys is compiled by an outside company. The responses
to the surveys are neither in the possession of the Corporation,
nor available for copy. Further, the results of the last survey
were presented at a Power Train Town Hall meeting on Sep-
tember 29, 1999.” Based on the October 18 response, the Union
did not receive any of the requested information. By memoran-
dum dated December 13, the Union further amplified its Sep-
tember 15 information request, and apprised the Respondent
that it needed the survey results as a bargaining aid in the 1999
Local negotiations and to support selected grievances (GC Exh.
51). On January 19, 2000, the Respondent provided a copy of
the 1998 culture survey results to the Union.
Based on the forgoing, I find that the Respondent ultimately
provided a copy of the 1998 culture survey results to the Union,
however, it was not done in a timely manner. I note that the
initial information request sought the two most recent survey
results and the Respondent only provided the 1998 survey.
Additionally, the Respondent did not provide the Union the
additional information that it sought in items 2, 3, and 4 of the
request. Therefore, I conclude that by not providing necessary
and relevant information to the Union and providing some in-
formation in an untimely manner, the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
7. Complaint paragraphs 13(j) and 17(j): September 15, infor-
mation requests in connection with the tool change plans
for the 3.7L Mack II Plant
On September 15, Valentin filed an information request for
five items in connection with a grievance investigation for the
tool change plans or strategy developed for the 3.7L Mack I I
plant (GC Exh. 52). On October 18, the Respondent answered
the Union’s information request (GC Exh. 36). Concerning
items 1 and 2, the Respondent sought the Union to provide
additional relevance or amplification of potential contract viola-
tions. In item 3, Respondent opined that accumulating the in-
formation would be extremely burdensome and requested the
Union to limit the scope of its information request. For item 4,
the Respondent asserted that corrective action plans and poten-
tial tool strategy are currently under consideration by the ap-
propriate managerial personnel. With respect to item 5, the
Respondent indicated the issue was settled at the first step of
the grievance procedure and no additional information is neces-
sary. On December 13, Valentin further clarified and provided
support for the September 15, information request (GC Exh.
53). In regard to item 5, Valentin acknowledged that a portion
of the grievance has been resolved, however, bargaining unit
job content relating to tool (classification 211) and plant (classi-
fication 218) engineers is still under investigation. On January
19, 2000, the Respondent again addressed the Union’s Septem-
ber 15 request for information. The Union acknowledges that
the Respondent’s responses to items 1, 2, and 4 are satisfactory.
With respect to items 3 and 5, the Union never received all of
the information.
Based on the forgoing, I find that safety reports requested in
item 3 are necessary and relevant to the Union’s grievance
DAIMLERCHRYSLER CORP. 1341
investigation and obtaining the reports for 2 years, if they exist,
is not burdensome. With respect to item 5, I conclude that while
the Union obtained one aspect of their request, they did not
receive the two other items of information sought by the Union.
I find that the information related to tool (classification 211)
and plant (classification 218) engineers is presumptively rele-
vant and should be provided to the Union.
Under these circumstances, I find that by refusing to provide
information to the Union concerning items 3 and 5, and not
responding to items 1, 2, and 4, in a meaningful and compre-
hensive manner for approximately 4 months, the Respondent
violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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 engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by threatening an em-
ployee with discipline on November 6, 1998, and coercively
interrogating an employee on March 24, 1999.
4. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act by issuing an
unfavorable performance appraisal on January 23, 1999, to
Keith Valentin and by issuing a written warning to Keith
Valentin on April 6, 1999.
5. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act by refusing to
furnish and delaying in providing requested information relevant
to the Union’s performance of its duties as exclusive collective-
bargaining representative.
6. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]