Ford Motor Co.

National Labor Relations Board - Board Decisions

Jan 27, 1995

316 N.L.R.B. 145 (N.L.R.B. 1995)

145
316 NLRB No. 26
FORD MOTOR CO.
1 On October 31, 1994, Administrative Law Judge Russell M.
King Jr. issued the attached decision. The General Counsel filed ex-
ceptions and a supporting brief. Both Respondents filed answering
briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
1 All dates hereafter are in 1993 unless otherwise indicated.
2 Hereafter, the term ‘‘General Counsel’’ will normally refer to the
attorney in the case acting on behalf of the Board’s General Counsel,
through the Regional Director.
Ford Motor Company and Jerry Donovan
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, Local 2000,
AFL–CIO–CLC (Ford Motor Company) and
Jerry Donovan and Sean R. Donovan. Cases 8–
CA–25652, 8–CB–7517, and 8–CB–7584
January 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The principal issues presented in this case1 are
whether the judge correctly found that Respondents did
not violate the Act in removing employee Jerry Dono-
van from his position as a training coordinator and that
the Respondent Union did not violate the Act in its
representation of terminated employee Sean Donovan,
the son of Jerry Donovan. The Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Rufus Warr, Esq., for the General Counsel.
Nancy Schott, Esq., of Dearborn, Michigan, for the Respond-
ent Employer.
Betsey A. Engel, Esq., of Detroit, Michigan, for the Respond-
ent Union.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge. This
case was tried in Cleveland, Ohio, on May 2–3, 1994. The
original charges, Cases 8–CA–25652 and 8–CB–7517, were
filed by an individual Jerry Donovan on July 27, 1993,1
against Ford Motor Company (Respondent Employer or
Ford) and the United Automobile, Aerospace and Agricul-
tural Implement Workers of America, Local 2000, AFL–CIO
(Respondent Union or UAW), collectively referred to as Re-
spondents. Based on the above charges, on September 30,
1993, the Regional Director for Region 8 of the National
Labor Relations Board (the Board), acting on behalf of the
Board’s General Counsel, issued a complaint alleging that
Respondents unlawfully discharged Jerry Donovan (Dono-
van) as training coordinator because of his union activities.
On November 10, 1993, in a related charge, Case 8–CB–
7584, the individual Sean Donovan (Sean), Donovan’s son,
alleged that Respondent Union failed to provide adequate
representation to him in a grievance procedure, and unlaw-
fully negotiated a downgrade of his job classification because
of his father’s union activities. Sean’s charge was amended
on December 29. On January 31, 1994, the General Counsel2
issued a complaint on this additional charge and consolidated
it with the original complaint in a second amended consoli-
dated complaint.
This case involves the legality of Donovan’s removal as
training coordinator. On June 13, Respondent Union re-
quested that Respondent Employer remove Donovan from his
training position because of his political activities in the Re-
spondent Union. In particular, Donovan was extremely criti-
cal of and campaigned against John Hatcher for Respondent
Union president. Upon Hatcher’s election as president, he re-
quested that Respondent Employer remove Donovan as train-
ing coordinator, asserting that he could not trust Donovan in
that position. Respondents assert that Donovan’s removal
was lawful because the job in question is an ‘‘appointed’’
position, and not a ‘‘bid’’ position.
This case also deals with a charge brought by Donovan’s
son, Sean, who was terminated by the Respondent Employer
for exceeding the number of unexcused absences permitted
by the union/company agreement. The General Counsel has
alleged that the Respondent Union failed to properly process
Sean’s grievance concerning his termination of employment.
Upon reinstatement, the General Counsel also alleged that
the Respondent Union unlawfully negotiated a downgrade in
his job classification, job seniority, and induced Sean to
waive certain employee rights because of his parental affili-
ation with Donovan. It is alleged that the Respondent
Union’s activities were the result of political differences be-
tween Donovan and Hatcher. As such, the General Counsel
claims that the Respondent Union failed to represent Sean for
reasons that are unfair, arbitrary, invidious, and has breached
its fiduciary duty to him and its members.
On the entire record, including my observations of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and counsel for the Respond-
ents, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Ford, a Delaware corporation,
with an office and place of business in Avon Lake, Ohio, has
been engaged in the manufacture of automobiles. Annually,
Ford sold and shipped from its Avon Lake, Ohio facility
goods valued in excess of $50,000 directly to points outside
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 29 U.S.C. 151 et seq.
4 Modern Operating Concept Agreement between Ford and UAW,
2nd Unit, VAX-54, dated January 3, 1991.
5 Id.
the State of Ohio. I find, as admitted, that Respondent Em-
ployer has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the National
Labor Relations Act (the Act).3
Further, and as admitted herein, I find that the Respondent
Union has been at all times material a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR PRACTICES
A. The Testimony and Evidence
1. Respondent’s Modern Operating Concept Agreement
At Respondent Employer’s automobile manufacturing
plant in Avon Lake, Ohio, Ford manufactures two types of
vehicles: the Econoline unit, which operates under a tradi-
tional collective-bargaining agreement with the UAW; and
the Villager unit, which operates under the Modern Operat-
ing Concept Agreement (MOA). The MOA was created to
foster better working relationships between UAW and Ford.
David Porter, Respondent Employer’s plant manager, testi-
fied that the MOA was designed to provide ‘‘more flexibility
for the Company and more opportunity for the people that
are represented in that unit.’’ The MOA calls for a ‘‘team
concept’’ approach. The MOA agreement expressly states
that the ‘‘objective of the Team Concept Agreement is to
move the decision making process to the levels most directly
involved with the build[ing] of the vehicle. As problems or
concerns develop, Teams should have the ability to partici-
pate in problem resolution of these issues.’’4 The MOA em-
phasizes the formation of union/management teams, and the
participation by both as ‘‘equal partners.’’ All parties ac-
knowledged that the MOA agreement was a joint relationship
between union and management. In order for the concept to
work, the training program would require the commitment
and cooperation of both UAW and Ford.
A critical aspect of the MOA concept was its training
function. The bargaining agreement between union and man-
agement explicitly states that both parties would ‘‘participate,
as equal partners, in identifying team training needs and de-
veloping and implementing training programs to meet these
needs.’’5 Both Respondent Union and Respondent Employer
had joint input into how the training program developed. A
‘‘joint training’’ mission statement, goals, and organizational
chart was created. Under the MOA, besides fostering a team
approach, wage increases were contingent on the types of
training an employee received.
The ‘‘Joint Training Steering Committee’’ oversaw the
training program. The committee consisted of David Porter,
Ford plant manager; J. Sanford, Ford assistant plant manager;
Charlie Schonberger, Ford assistant plant manager; Don
Schnur, UAW president; Jerry Davis, UAW bargaining com-
mitteeman; and Pete Greenleaf, UAW health and AFC rep-
resentative. The primary functions of the group were to, inter
alia, maintain joint and ultimate responsibility for the plan-
ning, implementation, and evaluation of all training develop-
ment at the plant; determine training objectives and prior-
ities; provide direction and guidance for the Joint Training
Administrators, and allocate financial and human resources
required to achieve training objectives. The training adminis-
trator’s functions were, inter alia, to work in conjunction
with the Training Matrix Team and Joint Training Steering
Committee to coordinate all training and development activi-
ties on a daily basis, and assist in the design, development,
and evaluation of technical and nontechnical training pro-
grams to ensure that each training objectives are met.
The joint training program was divided into two types ap-
proaches: Statistical Process Control (SPC) and Generic. SPC
is a management technique widely used by Ford. Using a
technique called ‘‘Process Work Sheets (PWS),’’ every plant
operator is given the opportunity to write down how his or
her job is to be done. Another technique used is called Con-
tinuous Improvement (CI).’’ CI encourages people to partici-
pate in achieving quality and productivity. Both SPC tech-
niques require a considerable amount of training. Generic
training deals with the training of skilled tradespersons. Ford
felt that it was essential to provide state-of-the-art opportuni-
ties for skilled tradesmen to develop their abilities. As a re-
sult, Ford created the UAW technical trainer position.
2. Jerry Donovan’s union activities
It is undisputed that Jerry Donovan has a long tenure in
union politics. Hired by Ford on January 20, 1968, as an
electrician, Donovan first ran for union office in May 1969.
He was elected as a third alternate committeeman for the Lo-
rain, Ohio plant, Local 425. Shortly thereafter, Donovan as-
sumed a full-time position as district committeeman and held
that post until 1974. Upon transfer to the Avon Lake, Ohio,
Donovan was elected as skilled trades chairman in mid-1975.
In 1977, he unsuccessfully ran for chairman of the Ohio as-
sembly unit. In 1981, Donovan was elected vice president of
the Respondent Union. In that capacity, Donovan held dual
roles as district committeeman, and at times, served as acting
president when the president was not available. Donovan ran
for reelection as vice president in 1984 but was defeated. In
1987, Donovan’s political ally, John Hunter, was elected
president of the Respondent Union. Hunter appointed Dono-
van as energy control and power lock coordinator for the Re-
spondent Union. When Hunter resigned to take an inter-
national staff position with Ford, then vice president Frank
Murphy, a political opponent of Donovan, became president.
Murphy removed Donovan from his appointed post as energy
control and power lock coordinator and replaced him with
John Hatcher, another of Donovan’s political opponents. In
1988, Donovan was elected as bargaining committeeman.
In 1990, Donovan, Murphy, and Don Schnur ran for presi-
dent of the Respondent Union. There was an explicit agree-
ment between Donovan and Schnur that if either one of them
did not make the runoff election, they would collectively
support each other against Murphy. The winner would then
‘‘take care’’ of the other by providing him with some kind
of political appointment. Having received the lowest number
of votes in the general election, Donovan actively supported
Schnur’s candidacy in the runoff election. Schnur defeated
Murphy to gain the union presidency. In 1993, Schnur and
Donovan supported one another in their campaigns for presi-
dent and vice president, respectively. Both Donovan and
Schnur lost their races. Donovan lost to Murphy, and Schnur
lost to current union president John Hatcher.
147FORD MOTOR CO.
6 Between 1990 and 1993, no other skilled tradespersons who
originally applied with Donovan and Zahn became trainers. There
were, however, nonskilled persons who became trainers. It was dis-
covered that nonskilled production workers, Teddy William’s, Helen
Lowers, Bob Vita, and Shelly May, were hired as trainers. Donovan
asserted that these individuals signed bid sheets but was not able to
substantiate his claim.
It is not disputed that Donovan and Hatcher have been po-
litical opponents. Donovan testified that he and Hatcher have
been politically at odds since about 1985. In 1987, Donovan
adamantly opposed Hatcher’s reelection bid for president. In
a campaign leaflet, Donovan proclaimed his support for John
Hunter and exclaimed, ‘‘a vote for the incumbent is a vote
for business as usual. A vote for John Hunter will send a
loud message to the Company that Local 2000 is NOT FOR
SALE.’’ In an open letter to the union membership, Donovan
asserted that if Hatcher is elected as president, the union
would lose ‘‘hundreds of jobs.’’ Another leaflet pronounced,
‘‘Never in over 25 years with the U.A.W. have I EVER seen
a local union leadership which was so spineless, inept or pa-
thetic as the president [sic] leadership of Local 2000.’’
3. Donovan’s job: Which was it?
The are two jobs in question. UAW technical trainer and
joint training coordinator. The UAW technical trainer posi-
tion is held by Richard Zahn. The joint training coordinator
is the position in dispute regarding Donovan.
Donovan testified that about March 1990, he applied for
a job bid posted as a ‘‘skill trades trainer.’’ The complaint
alleges that Donovan was unlawfully removed from the posi-
tion of ‘‘training coordinator.’’ The official job posting re-
ferred to the position as ‘‘UAW technical trainer.’’ The
UAW technical trainer would work in conjunction with the
‘‘training matrix team’’ to establish training programs for
Ford employees. Candidates were restricted to skilled
tradespersons. When Donovan applied for the position, he
held a full-time union position as bargaining committeeman.
Donovan testified that under the terms of the national agree-
ment between Ford and UAW, employees serving full-time
union positions were entitled to bid for job openings. Dono-
van testified that when the official leaves his or her union
capacity, that person, if selected, may commence the position
he bid for.
It is disputed whether the selection of the UAW technical
trainer was based on ‘‘seniority’’ or ‘‘date of entry.’’ Dono-
van testified that the selection of the UAW technical trainer
was based on the candidate’s ‘‘date of entry.’’ Harmon testi-
fied that selection for the UAW technical trainer was based
on ‘‘seniority.’’ Respondent Employer’s job posting indicates
that selection was based on ‘‘seniority.’’ Date of entry is
when one becomes classified as a skilled tradesperson. Se-
niority is based on when one begins employment.
Of the 25 employees who bid for the UAW technical
trainer position, Zahn, a skilled tradesman, was awarded the
position. There are conflicting theories on how Zahn got the
position. Assuming that selection was based on seniority,
Zahn was entitled to the position. Zahn’s seniority date of
June 29, 1963. Donovan’s seniority date was January 20,
1968. In the alternative, assuming the position was based on
date of entry, Donovan was the most senior applicant with
a date of entry of January 20, 1968. Richard Zahn was the
second most senior applicant with a date of entry of Novem-
ber 19, 1968. Because Donovan held a full-time union posi-
tion at the time, Zahn assumed the responsibilities as UAW
technical trainer. Donovan testified that he did not file a
grievance to challenge the bid. Donovan testified that when
he left his union position, he assumed he could commence
the procedure to notify the company that he would be avail-
able for the training job. Whatever the case, Jerry Davis, the
union bargaining committeeman at the time, attested to the
validity of the selection of Zahn as UAW technical trainer.
After Schnur’s election as president in June 1990, keeping
his promise to Donovan that he would ‘‘take care’’ of him
after the runoff election, Schnur spoke with Ford’s human re-
source manager, Thomas Harmon, about an appointed posi-
tion for Donovan. Schnur testified that Harmon mentioned
that Donovan could go to ‘‘one of those training jobs’’ avail-
able in the training department. Schnur was not sure Dono-
van would want a training position because he promised
Donovan an appointment under Ernie Laughton. Schnur
spoke with Donovan to inquire if he would want a training
position. Donovan told Schnur that he had bid on the UAW
technical trainer job. ‘‘And that is where I first understood
that there was a job bid,’’ claimed Schnur. Under those as-
sumptions, Schnur told Harmon that he had ‘‘no problem’’
with Donovan taking the training job, but wanted him to un-
derstand that at a later date Donovan was going to get an
appointed position. Harmon, however, was under the assump-
tion that the Donovan’s position was an appointed position.
Schnur admitted, however, that he had ‘‘no idea what the
training function job was.’’ The record clearly indicates that
when Donovan assumed his training position, Zahn was not
removed from his job as UAW technical trainer. Donovan
testified that Ford added his position because it was felt that
two persons would be required to meet the company’s train-
ing needs. Harmon disputes Donovan’s statement. In 1990,
Donovan assumed his training position, which ultimately
evolved into the joint training coordinator position.6
Donovan testified that when he began his training job,
‘‘there was no title at the time.’’ Donovan added, ‘‘It was
a trainer . . . Those names came down much later. . . . And
as the jobs developed, you went from administrator to coor-
dinator, whatever suited the purpose at the particular time.’’
There was nothing in the record which indicated that a bid
process was initiated for Donovan’s position, separate and
apart from Zahn’s position. Donovan testified, however, that
he was selected for his job in the same manner as Zahn.
Schnur testified that when he assumed that Donovan’s job
was a bid position, he made no determination as to who the
next qualified person would be to fill the post.
Plant Manager Porter testified that Zahn’s and Donovan’s
respective positions were distinct in purpose and function
from the very start. Porter testified that the UAW technical
trainer was created to meet the ‘‘generic’’ training needs for
skilled tradesmen for both the Econoline and Villager units.
The UAW technical trainer position is indisputably a bid po-
sition. Porter claimed that Donovan’s job as training adminis-
trator was created to ensure that union representation in the
development of a joint training program was present in fos-
tering the MOA concept. Porter declared that the main cri-
terion for the training coordinator was that he be appointed
by the president of the local union. Porter contradicted him-
self, however, stating that the UAW position was a ‘‘plant
appointee,’’ because it was Ford who paid the trainer’s sal-
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Murphy was a political ally of Hatcher. 8 G.C. Br. 8.
ary. Porter clarified his statement stating that the trainer was
appointed ‘‘jointly with management.’’ In order to have joint
training programs, Ford felt that it was essential for the
president of the Respondent Union to support the team con-
cept. In particular, Porter claimed that the president needed
to have someone in the training coordinator position that he
felt comfortable with and could trust to make decisions that
would affect the union membership.
Donovan testified that because the MOA team concept
was new, his job responsibilities at that time he started were
not well defined. Donovan testified that some of his initial
work was similar to Zahn’s. Donovan worked in conjunction
with Ford representatives in actually developing the joint
training program. Donovan testified that having ‘‘no blue
print or film,’’ the trainers were charged with developing the
parameters of the training program, creating a shift from the
traditional management style to a more supportive team ap-
proach. As time progressed, it became apparent that Dono-
van’s job functions expanded. While Zahn’s duties remained
primarily in the training of skilled tradespersons, Donovan’s
responsibilities broadened, taking on managerial and adminis-
trative capacities. In particular, Donovan developed programs
for both hourly and salaried employees, worked with training
consultants, interacted with union and management leader-
ship, ensured that training concepts were being implemented
on the production floor, and helped develop the team concept
on a national scale. At the end of Donovan’s tenure in the
training department, he performed no direct training func-
tions. As such, training documents referred to Donovan not
as ‘‘UAW technical trainer,’’ but as a ‘‘joint training admin-
istrator.’’ Upon review of an organizational chart of the
‘‘Training Matrix Group,’’ Donovan identified himself as a
‘‘joint training administrator,’’ and Zahn as a ‘‘technical
trainer.’’ In a memorandum of February 5, 1993, to Alex’s
Aldrich from Donovan, he referred to himself as ‘‘Training
Administrator.’’
Donovan served in his training capacity for 3 years. Upon
the election of Hatcher as Respondent Union president in
June (1993), Hatcher requested that Ford remove Donovan
from his position as joint training administrator. Hatcher tes-
tified that he and Donovan had political differences. Hatcher
needed someone that he could put ‘‘100 percent trust’’ in
performing the training functions. Hatcher claimed that the
removal of Donovan would be best for him and the union
membership. On June 13, Hatcher wrote a letter to Human
Resource Manager Harmon indicating that he wanted to re-
place Donovan with Murphy.7 As a result, discussion be-
tween Harmon and Hatcher ensued about Murphy’s appoint-
ment. At first, Harmon disagreed with Hatcher’s nomination
because Donovan had been in the position for some time.
Harmon and Hatcher then took the matter to Plant Manager
Porter. Both Harmon and Hatcher agreed that the training
function was essential to the success of the MOA. Harmon
testified that in order to ensure union and company coopera-
tion, it was important that Ford to support Hatcher’s can-
didate for the training position. As such, Murphy was ap-
pointed to Donovan’s job. A booth cleaner, Murphy was
classified as a nonskilled employee. Nonetheless, he was se-
lected to succeed Donovan as a joint training coordinator, a
position Donovan asserts is restricted to skilled trades per-
sonnel.
There is dispute as to whether Donovan’s position was an
appointed or bid position. The General Counsel declares that
Donovan was unlawfully removed from his position as train-
ing coordinator because it was a bid position. Donovan
claims that he assumed the position as trainer, a bid position,
which ultimately evolved into the training coordinator posi-
tion.
Respondents assert that Donovan’s job was an appointed
position. Hatcher testified that the training coordinator is ap-
pointed by and reported to the local union president. Porter,
Assistant Plant Manager Schonberger, and Harmon claimed
that Donovan was appointed to his position, testifying:
Harmon: ‘‘Q. Okay. The job that Jerry Donovan held
after Schnur became President, was that a bid job or an
appointed job?’’
A. That was an appointed job.
Q. And why was Jerry Donovan appointed?
A. Well, because Don Schnur had indicated after he
came into office that he was the preferred individual for
that job and we discussed that among the operating
committee and found that Jerry was qualified to do it
and we supported, uh, that appointment.’’
Schonberger: Q. Mr. Schonberger, do you know how
Jerry Donovan got his job?
A. ‘‘He was picked by Don Schnur.’’
Porter: ‘‘The essence of the discussions were that
Jerry was going to be Don’s training coordinator.’’
Don Schnur testified that after he was elected union presi-
dent in 1990 he talked to Human Resource Manager Har-
mon, telling him ‘‘some of my projections for individuals
that I wanted to, uh, appoint which were four individuals that
helped me during my campaign to get elected. Those individ-
uals were Jerry Donovan, which I expressed very, very thor-
oughly to him that was going to happen.’’
The General Counsel claims that because Donovan took
orders from the Joint Training Steering Committee, he had
minimal discretion in influencing policy. As such, the train-
ing position was not linked with representing the views of
the Respondent Union. The General Counsel averred:
The Joint Training Steering Committee provided direc-
tion to the joint training coordinators with respect to
policy. It was the function of the joint training coordi-
nators to carry out the directions of the Joint Training
Steering Committee. Thus, there was not a question of
whether the training coordinators had a different philos-
ophy of training or favored a certain policy. The evi-
dence adduced at the hearing does not show that this
was ever a valid consideration.8
Donovan testified that the union views were represented
by the union president and the bargaining committeeman.
Donovan testified that the training coordinator’s duties were
to ensure that the Joint Training Steering Committee’s views
were implemented. Donovan testified, at times he would
even side with management to ensure that the training pro-
gram was successfully implemented. In contradictory state-
149FORD MOTOR CO.
9 Jones did not testify in the case.
10 The record indicates that Ford was experiencing absentee prob-
lems in the VX unit, with an absentee rate between 10 to 12.1 per-
cent in 1993. To contend with the absentee rate, Ford had to hire
additional employees to run the Villager operation.
11 The reinstatement waiver, inter alia, includes the waiver of all
rights, including backpay, for the period beginning with the employ-
ee’s termination and ending with the employee’s reinstatement. Par.
(d) provides: ‘‘I shall be regarded for disciplinary purposes, as being
on probation for a period of one year and understand that I will not
have access to the grievance procedure to protest the reasonableness
of any penalty, including, discharge, I may receive during this period
for an infraction of company rules or misconduct.’’
ments, however, Donovan testified that he had a ‘‘manage-
ment counterpart,’’ and for the most part, the joint training
program was similar to other UAW and Ford programs
where there were management and union representatives to
ensure that both perspectives were heard. Donovan referred
to joint coordinator Dr. Doug Young, an employee of Ford,
as his ‘‘opposite.’’
Ford claims that Donovan took his directions from Schnur.
Plant manager Porter testified that Schnur relied on Donovan
for input, stating: ‘‘You know, many times, Schnur made the
point, you know when it comes to training, Jerry is my guy,
you know, whatever he says is I’m going to go with.’’ Har-
mon testified that if there was a dispute between the Union
and Ford, Donovan was to take the union position, at the di-
rection of the union president. Hatcher testified that training
coordinator answered to the president. Hatcher also added
that the joint coordinator positions in themselves consisted of
a union representative and a ‘‘company counterpart.’’
4. Sean Donovan’s claims
Sean Donovan is the son of Jerry Donovan. Sean began
his employment as an assembly technician at Respondent
Employer’s Avon Lake, Ohio facility on August 11, 1992.
Sean worked on the Villager (VX or 54) side of the plant.
On June 8, 1993, Sean was running late for work. Pre-
viously, Sean had accumulated eight unexcused absences or
‘‘occurrences.’’ Potentially his ninth occurrence, Sean admit-
ted he was frantic about missing work. Under the Ford at-
tendance program, employees with less than 5 years of se-
niority are disciplined for an excess of four unexecused ab-
sences during a 12-month period. On the fifth occurrence, a
reprimand and warning is issued to the employee. On the
ninth occurrence, the employee is automatically terminated.
Knowing he would be late for his 5:30 a.m. shift, Sean
called his father to ask him what he should do. Donovan
suggested he call Oscar Jones, Sean’s coordinator in the 54
body shop, and tell him that he would be tardy but would
be present at work. Donovan testified that under the union
agreement, tardiness is treated differently from absenteeism,
and that if Sean got to work, he would be considered tardy,
not absent. Sean testified that Jones would ‘‘cover’’ him, and
that he would ‘‘take care of it.’’ The record indicates that
Sean was not present at work on June 8, 1993. The grievance
of June 9, 1993, expressly indicates that Jones instructed
Sean to remain at home.9
On June 9, 1993, when Sean reported to work, Jones told
him to report to the labor relations office. A staff person in-
dicated to Sean that he would be charged with his ninth un-
excused absence. Sean testified that he assumed that his ab-
sence would be classified as medical or unpaid personal
leave. Sean insisted that Jones ‘‘covered’’ him and his ab-
sence from work would not be counted as an unexcused ab-
sence. Sean called his father and told him about the dispute
in the labor relations office. Donovan called Jerry Davis and
asked if he would talk to Assistant Plant Manager
Schonberger and see if they could resolve the conflict. At
that time, Sean requested union representation. Bob Bell and
Ace Williams, both union representatives, arrived at the labor
relations office and took Sean to the ‘‘grasp room’’ where
they discussed the matter. After Sean was notified that he
was being terminated, he filed a grievance protesting the ter-
mination of his employment.
On June 12, 1993, Hatcher assumed his position as presi-
dent of the Respondent Union. Donovan asked Hatcher to
help Sean get reinstated. Despite their political differences,
Hatcher testified that they had a ‘‘good’’ conversation.
Hatcher assured Donovan that he would ‘‘do everything’’ he
could to get Sean reinstated. Hatcher testified that he spoke
with Schonberger about giving Sean ‘‘another chance.’’
Schonberger informed Hatcher that he would not reinstate
Sean into unit II, on the Villager side of the plant. Hatcher
also spoke with Thomas Springowski, bargaining committee-
man, about the possibility of reinstating Sean. On August 10,
1993, Hatcher was able to get an agreement from Harmon
to reinstate Sean. Shortly after, Harmon informed
Schonberger of his decision to reinstate Sean. Schonberger
told Harmon of his opposition to reinstate Sean in the VX
unit because it would send the wrong message to employees
because of their existing attendance problems.10 Hatcher tes-
tified that he did not respond to Schonberger’s concerns at
the meeting because his first concern was to get Sean rein-
stated.
After the meeting, Hatcher called International Union Rep-
resentative Jerry Melillo to get his input on Sean’s reinstate-
ment. Hatcher advised Melillo that Sean could be reinstated
under the Econoline system, with a 1-year waiver of certain
rights and privileges of employment.11 Hatcher testified that
the signing of a reinstatement waiver was a normal procedure
required for all reinstated of employees. Melillo suggested to
Hatcher that if he could get Sean reinstated, you [Hatcher]
‘‘better take what you can get.’’ Melillo testified that he
thought the agreement was a good one because of Sean’s
limited tenure with Ford, and because of his discharge over
absenteeism. The same day, Hatcher testified that he was un-
able to reach Sean so he called Sean’s mother to inform him
of her son’s reinstatement. Within an hour, Donovan called
Hatcher thanking him for his efforts. The time between
Sean’s termination and reinstatement was approximately 2
months. Because Sean was transferred to the Econoline unit,
the General Counsel claims that the Respondent Union un-
lawfully negotiated a downgrade in Sean’s job classification
and job seniority.
III. ANALYSIS AND CONCLUSIONS
A. Jerry Donovan
It is unclear as to what the exact job title and position in
question is. Donovan referred to position as ‘‘skill trades
trainer.’’ The complaint described the position as ‘‘training
coordinator.’’ Other references include: trainer, joint training
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 As previously stated, seniority for skilled tradespersons is based
on date of entry.
13 A more appropriate question, which neither the General Counsel
or the Respondents raise, is who had authority to remove Donovan?
administrator, training administrator, UAW trainer, UAW
technical trainer, and UAW training administrator. Donovan
contends that the job evolved from being a ‘‘trainer,’’ then
taking on administrative and management functions, result-
ing, in the job title ‘‘training administrator.’’ Names, descrip-
tions, and titles aside, I find that the training position in
question is an appointed one. My conclusions are based not
on fancy titles, but on a close analysis of the bid process and
a functional review of Donovan’s job.
First, it is essential to conclude that the job in question is
not that of UAW technical trainer, the position held by Zahn.
Zahn was selected for and remains on the job a UAW tech-
nical trainer. The General Counsel has averred that the posi-
tion in question is that of ‘‘training coordinator.’’ The com-
plaint makes no claims that Donovan should be entitled to
Zahn’s position. It is undisputed that the UAW technical
trainer and joint training coordinator position are separate
and distinct in their title, roles, and responsibilities. Thus, I
am not faced with making the determination as to whether
Donovan is entitled to Zahn’s job. I am charged with deter-
mining whether Donovan’s position, which eventually
evolved as training coordinator, is an appointed or bid posi-
tion. The case turns on this material fact because if the Gen-
eral Counsel fails to prove that Donovan job was a bid posi-
tion, the removal of Donovan was legally valid.
No job posting, employee record, or personnel file was
presented to determine Donovan’s job classification. In as-
sessing Donovan’s job, I first look to the bid process, if any.
It seems obvious to me that a bid position requires a bid
process. Nothing in the record has indicated that a bid proc-
ess was initiated for Donovan’s position, separate and apart
from Zahn’s position. Hatcher testified that no new bids were
announced. Neither Donovan, nor the General Counsel, has
made such a claim. It is undisputed that Zahn’s job as UAW
technical trainer involved a well-followed and documented
selection process. A ‘‘statement of function’’ and ‘‘qualifica-
tions and criteria’’ for the UAW technical trainer position
was developed, explicitly stating that the ‘‘selection process
will be open to skilled tradesmen in the core trades of Elec-
trician, Toolmaker, Pipefitter and Millwrite with the follow-
ing stipulations: Most qualified candidate based on criteria
will be selected by merit and ability, and where they are
equal, the employee with the greatest seniority shall receive
preference.’’12 Had Donovan’s position been classified as a
bid position, one would expect that a similar bid process
would be initiated by the Respondent Employer to ensure
that all interested candidates would apply. Having seen none,
Respondents succeed a prima facie test in their assertion that
Donovan’s job is an appointed position.
In adopting a functional approach, it is clear that the posi-
tion evolved around the MOA concept. Because the MOA
concept was new, the duties of Donovan’s position, in its in-
ception, were ambiguous. As the Joint Training Steering
Committee’s goals and objectives became clarified, so did
Donovan’s job. It is undisputed that the overall responsibility
of the training program was entrusted in the Joint Training
Steering Committee, represented by UAW and Ford mem-
bers. It is questionable, however, that Donovan and his com-
pany counterpart were mere foot soldiers, taking orders from
the committee. The very nature of the position leads me to
believe that Donovan had substantial input into the policy
making function of the training program. The MOA concept
is based on team work, joint cooperation between union and
management. It would appear odd if two union officials, or
in the alternative, two company employees occupied the joint
administrator positions. It would be repugnant to the very na-
ture of the MOA concept. Donovan claims that as the train-
ing coordinator, he was merely carrying out the directives of
the Joint Training Steering Committee. In light of the empha-
sis on the joint management between UAW and Ford, I am
persuaded that Donovan had substantial input into the train-
ing program, and took the opportunity to inject the union
perspective into the proceedings.
Donovan thinks that his job was a bid position. Hatcher,
Porter, and Harmon testified that the position was an ap-
pointed one. At best, Schnur testified that it was a bid posi-
tion, because Donovan told him so. Later, Schnur admitted
that he really didn’t know what the job entailed. What tips
the scale in favor of the Respondents is Donovan’s very own
statement. Donovan testified that upon Hatcher’s election as
president, he expected to be replaced as training coordinator.
Donovan admitted, ‘‘I kind of had a had been expecting to
be removed from it [the training coordinator job], okay, be-
cause it had been made very clear, that I was not a person
that was going to be wanted in that position.’’ Bear in mind
that Donovan has served in various union appointed and
elected positions during the past 20 years. Over that period,
he has garnished substantial knowledge and understanding of
union-appointed positions. Had Donovan been under the
strong assumption that his job was a bid position, there
would not have been any doubt whatsoever that his job was
in jeopardy.13
Donovan asserts that his job started out like Zahn’s job,
but later evolved into the technical coordinator position. If
that were the case, there would be another bid process. None
existed. Additionally, Donovan’s job would be restricted to
skilled tradespersons. Murphy was appointed to Donovan’s
position. Murphy was a booth cleaner, classified as non-
skilled personnel. If Harmon, Porter, and Hatcher sincerely
believed that Donovan’s position was like Zahn’s, in addition
to initiating a bid process, they would have selected a skilled
tradesperson. As such, I credit Respondent’s testimony on
this point.
In applying my findings that Donovan’s job was an ap-
pointed position, the law is clear as to its application. Re-
spondent Union may legitimately remove members from po-
sitions within the union which involve policy making posi-
tions. The Board, in Shenango Inc., 237 NLRB 1355 (1978),
and its progeny, e.g., General Motors Corp., 313 NLRB 998
(1994); General Motors Corp., 297 NLRB 31 (1989); Team-
sters Local 292 (General Contractors), 280 NLRB 733
(1986), affd. Kudla v. NLRB, 821 F.2d 95 (2d Cir. 1987) as-
serted that a union ‘‘does have a legitimate interest in plac-
ing in offices such as chairman of the safety committee those
people it considers can best serve the Union and its member-
ship.’’ 237 NLRB at 1355. In Shenango, the charging party
was removed from his union position solely because he sup-
ported the opposition candidates in a union election. The
151FORD MOTOR CO.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Board added in Shenango, ‘‘The union is legitimately enti-
tled to hostility or displeasure toward dissidence in such po-
sitions where teamwork, loyalty, and cooperation are nec-
essary to enable the union to administer the contract and
carry out its side of the relationship with the employer.’’
The General Counsel contends that the case at hand is
more akin to Roofing, Metal & Heating Associates, 304
NLRB 155 (1991), which involved the termination of a train-
ing instructor because he intended to run for a union office.
The General Counsel asserts that this case controls because
the trainer, like Donovan, was ‘‘without authority to carry
out any collective bargaining responsibilities on behalf of the
Union or its members in dealing with employers.’’ The ad-
ministrative law judge found that the trainer did not hold an
appointive union position and accordingly was not privileged
to cause his discharge. Donovan, as I previously concluded,
had substantial power to assert important union views within
the MOA training process. I also point out that the training
component had an impact on an employee’s compensation.
I consider that facet of the training program to be significant
among its decision makers. Where it not for the MOA con-
cept, I may have been persuaded to find that Donovan’s job
was under the direct supervision of the Joint Training Steer-
ing Committee. The record clearly indicates, however, that
union and company views and responsibilities were jointly
shared in all aspects of the MOA concept. Thus, I is distin-
guished Roofing, Metal & Heating from the instant case.
I find that General Counsel failed to make a prima facie
showing that Jerry Donovan’s job was a bid position because
General Counsel failed to prove that a bid process existed.
A closer review of the testimony and functional analysis of
Donovan’s job also leads me to conclude that the training co-
ordinator position had the characteristics of an appointed po-
sition. The MOA concept provided significant opportunity
for Donovan to influence policy. In a jointly shared position,
it would be expected that both union and company represent-
atives be chosen as its key administrators, reflecting the
views of its respective sides. While the General Counsel
makes an attempt to show that Donovan’s job was at the di-
rection of the Joint Training Steering Committee, when con-
sidering the MOA concept as a whole, I find that Donovan’s
job was a union-appointed position, and as such, that Dono-
van’s discharge as training coordinator was lawful under the
Act.
B. Sean Donovan
I find the record filled with good-faith efforts by the Re-
spondent Union in seeking reinstatement of Sean Donovan.
The General Counsel claims that Hatcher failed to adequately
represent Sean because he was reinstated to a different de-
partment. Despite political differences between Donovan and
Hatcher, it was clear that Hatcher successfully negotiated the
reinstatement of Sean in a timely, diligent manner. It is un-
disputed that Sean’s limited seniority at Ford, coupled with
his atrocious absentee record, made it difficult for Hatcher to
succeed. Yet, he put aside his political animosity for Dono-
van, used his clout with union and management officials, and
negotiated a reasonable agreement feasible for both sides.
From a management standpoint, it would be difficult to rein-
state Sean on the VX unit when absenteeism was a signifi-
cant concern. It is a legitimate business interest that absentee
policies are adhered to. It would set a bad example and could
foster greater rates of absenteeism if employees knew they
could violate company policy and get away with it. A rea-
sonable alternative was Sean’s reinstatement in the Econoline
unit.
The General Counsel also claims that Hatcher failed to
represent Sean by acting arbitrarily or out of animus against
Donovan. I disagree. I am persuaded by the rather amicable
conversation between Hatcher and Donovan when Donovan
asked that Hatcher help reinstate Sean. Donovan told Hatch-
er, ‘‘John, I know we have had our differences but we won’t
let that affect our kids.’’ Hatcher who has two children
working at the plant responded, ‘‘You know that, Jerry, that
I will do everything that I can to get him reinstated.’’ Hatch-
er exhibited due diligence when he sought the counsel of
Melillo. Had Hatcher uncontestedly supported Ford’s request
to place Sean in the Econoline unit, it would seem odd that
he speak to Melillo to get his advice. Such an act indicates
to me a careful, not arbitrary, review and analysis of Sean’s
case. It should be noted that nothing in the record has indi-
cated that Hatcher expressly or covertly attempted to sabo-
tage Sean’s reinstatement because of Donovan’s political ac-
tivities. As such, the General Counsel failed to convincingly
present evidence that would persuade me to think that Sean’s
grievance was not properly addressed.
The General Counsel has also averred that Respondent
Union induced Sean to waive certain employee rights under
the collective-bargaining agreement. The record clearly indi-
cates that the signing of a reinstatement waiver is a standard
procedure for employees seeking to be reinstated and are put
on probation subsequent to termination.
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. There were no unfair labor practices inflicted by Re-
spondents upon Jerry Donovan as alleged in the complaint.
4. There were no unfair labor practices inflicted by Re-
spondent Union upon Sean Donovan as alleged in the com-
plaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The second amended consolidated complaint in these cases
is hereby dismissed.