General Motors Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1964

149 N.L.R.B. 744 (N.L.R.B. 1964)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during bad weather; the Employer has the right to make trips on the
vessels in the event of an emergency; the captains are required to de-
liver all catches to the Employer; and in negotiations between the cap-
tains and the Employer, the specific amounts of compensation for the
various crewmembers as well as the captains are established .-3 Accord-
ingly, we find, contrary to the Regional Director, that the captains are
not independent contractors and the crewmembers are not their em-
ployees but are employees of the Employer, and shall direct an election
in a unit composed of them.
We therefore find that a question affecting commerce exists concern-
ing the representation of certain employees of the Employer within
the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act,
and that the following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(c) of the Act:
All crewmen employed on the whaling ships Lynn Ann and Sioux
City, excluding the captains and all supervisors.
[Text of Direction of Election omitted from publication.]
8 We also find the other cases cited by the Employer and Regional Director distinguish-
able on their facts.
Cadillac Motor Division , General Motors Corporation and
Charles Mullen. ' Case No. 7-CA-4414. November 17, 1964
DECISION AND ORDER
On April 21, 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending dismissal of the complaint in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision together
with a supporting brief, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no. prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner as modified herein.
149 NLRB No. 79.
CADILLAC MOTOR DIVISION, GENERAL MOTORS CORP. 745
The Trial Examiner found that shortly before employee Mullen's
discharge, Respondent's supervisors Timmons, Porter, and Labbe dis-
cussed Mullen's union activities at a "mysterious" meeting held in Tim-
mons' office ,at 4 o'clock in the morning. The Trial Examiner further
found that because these supervisors testified that their conversations
on this subject were restricted to "one sentence conversations" and that
their testimony in this regard was otherwise vague and reluctantly
given, a suspicion was created that plant guards Porter and Labbe were
instructed by their superior, Timmons, to spy upon Mullen's union
efforts. We do not agree with this conclusion.
Uncontroverted evidence in the record not alluded to by the Trial
Examiner in his Decision shows that contemporaneously with Mullen's
established dereliction of duties, for which he was subsequently dis-
charged, Timmons was conducting an investigation into- a series of
thefts from Respondent's plant. Undisputed evidence also establishes
that during this phase of the investigation, Timmons had been working
at all hours, that he had been informed that certain foremen were sus-
pected of being involved in these thefts, that one of these suspects
arrived for work between 6 and 6:30 a.m., and that Timmons called the
4 a.m. meeting with Porter and Labbe, both of whom were on guard
duty, for the purpose of instructing them to ascertain the license num-
ber and the occupants of the car driven by this suspect. In addition,
the record does not clearly establish that Mullen's activities were in fact
discussed at this meeting.
Accordingly, in view of this uncontroverted, positive evidence in the
record, and the absence of any evidence to support the Trial Examiner's
suspicions, we cannot infer, as did the Trial Examiner, that the manner
in which these witnesses testified raises any suspicion of impropriety or
indicates that the Respondent otherwise engaged in, or may have en-
gaged in, any unlawful activity as to Mullen.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on October 16, 1963 , by Charles Mullen , an individual,
the General Counsel of the National Labor Relations Board , hereinafter called the
General Counsel 1 and the Board respectively , by the Regional Director for Region
10 (Detroit , Michigan ), issued his complaint dated December 31, 1963, against
Cadillac Motor Division , General Motors Corporation , hereinafter called the Re-
spondent.
The complaint alleged that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3)
and 2 ( 6) and (7) of the Labor Management Relations Act, 1947, as amended,
herein called the Act.
1 This term specifically includes the attorney appearing for the General Counsel at the
hearing.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practice.
Pursuant to notice a hearing was held thereon at Detroit, Michigan, on February
10, 11, 12, and 14, 1964, before Trial Examiner Thomas S. Wilson. All parties ap-
peared at the hearing, were represented by counsel, and were afforded full opportunity
to be heard, to produce, examine and cross-examine witnesses, to introduce evidence
material and pertinent to the issues. Oral argument at the close of the hearing was
waived. Briefs were received from General Counsel and Respondent on March 23,
1964.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The complaint alleged, Respondent's answer admitted, "for the purpose of this
proceeding only," and I find that General Motors Corporation is, and has been at
all times material herein, a corporation duly organized under, and existing by virtue
of, the laws of the State of Delaware, and maintains plants in various States of the
United States, including a Cadillac Motor Division plant located ' at Clark and
Michigan Avenues in Detroit, Michigan, herein sometimes referred to as the Cadillac
plant, where it manufactures automobiles and automotive parts and that in excess of
$50,000 in value per annum of the raw materials and fabricated parts used at said
Cadillac plant came from sources outside the State of Michigan and that in excess of
$50,000 in value per annum of the completed products of said plant ultimately
reached customers outside the State of Michigan.
I find that Respondent is engaged in commerce within the meaning of the Act.
H. THE UNIONS
Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind., and United Plant Guard Workers of America, are labor
organizations admitting to membership employees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
In September 1963, "Charles A. Mullen had been employed as a plant guard by
Respondent for some 111/z years. His record over that period had been good, con-
taining several commendations. -
In 1960 the United Plant Guard Workers of America attempted to organize Re-
spondent's plant guards. The instigator and the acknowledged leader of this union
movement, as was well' known at the time to Respondent, was Mullen. The Union
lost the election which resulted therefrom.
In 1961 Mullen again discussed the prospect of another union organizing effort with
that Union. The campaign did not develop.
In July and August 1963,'Mullen and, a fellow plant guard named Presnell ap-
proached Local 299 of the Teamsters Union with the idea of organizing Respondent's
guards into that Union. Upon advice of counsel, Local 299 refused to proceed with
the proposed organizing effort. This approach to the Teamsters was known to
Respondent as well as the result thereof.
Subsequently in August or September 1963, Mullen, after consultation with some
of his fellow guards, again sought assistance of the Plant Guards Union to start an-
other organizational drive among Respondent's guards.
All of the above was well known to Respondent officials William J. Timmins,
director of salaried personnel since November 1961, and prior to that director of
plant security at the Cadillac plant, George S. Machesney, who succeeded Timmins
as director of plant security, as well as to Lieutenant John M. Burg and Sergeants John
H. Porter and Robert D. Labbe and the plant guards generally as Mullen made no
effort to keep his activities along this line secret. It was known to one said all in the
plant security force that Mullen was enthusiastically and energetically in, favor of
'union organization among the plant guards. Mullen openly and freely notified one
and all as to the progress of his efforts.
So far as this record shows Respondent made no objection or effort to hinder or
stop Mullen's activities along this line. However, the evidence does show that
Timmins kept Lieutenant Burg and Sergeants Porter and Labbe as well as Machesney
informed of Mullen's efforts. In fact Timmins had a conversation with Porter and
CADILLAC MOTOR DIVISION, GENERAL MOTORS CORP. 747
Labbe on this subject about 4 o'clock one morning in his office at the plant. This
became somewhat mysterious when Respondent's witnesses, after reluctantly ad-
mitting the event, could recall only that the subject of Mullen's activities had been
mentioned.2 There is at least a suspicion that Porter and Labbe were ordered to
"watch" Mullen during this conversation.
Among other duties, the job of the plant patrolman or guard, such as Mullen,
includes the inspection of all motor vehicles leaving the plant through the post to
which the guard is assigned.3 Various parts of the numerous types of vehicles which
passed through the post are inspected by the guards, visually or otherwise. The type
of inspection varies according to the type of vehicle. The purpose of the inspection
is, of course, to prevent the loss of Respondent's property. In addition the guards
keep a paper log of the vehicles, the drivers, and the time of their entrance and exit.
Although Respondent has provided its guards with some written instructions of
a generalized nature on the method of inspection of the various types of vehicles
which pass through the plant, new patrolmen learned the procedures in large part
through osmosis, i.e. observing a more experienced patrolman-at work. The portions
,of the vehicle and the manner of its inspection vary according to the type of vehicle.
After the discovery that Respondent's property was being removed from the plant
under the hood of the test cars, on March 28, 1962, Lieutenant Burg had the sergeants
read at daily rollcall an order for the plant guards to raise the hoods of all test cars
leaving the plant. Theretofore the inspection had not required the raising of the
hood of these vehicles. The generalized instructions require the guards to inspect
the cab of tractors "visually." Such "visual inspection" may mean all kinds of
,different things.
The thoroughness of the investigation or inspection given a vehicle was largely
,discretionary with the patrolman on duty, except for the generalized rules. In addi-
tion, some sergeants would, on occasion, issue orders for what is called a "100 per-
cent inspection" of the existing vehicles which was a considerably more rugged and
.complete inspection of the vehicle than was customary.
As was to be expected, the type of inspection given tended to vary not only with
the various individual guards on duty but also as to how busy the post might happen
to be and, probably, even upon how well the individual guard had happened to digest
his last meal.
The evidence indicated that by September 27, 1963, the guards generally were
tending to become somewhat lax and perfunctory in their inspections.
The evidence also shows that with the change to the 1964 models, the space through
which the fingers had to pass in order to unlock the hood of test cars became so
restricted as to cause injuries to the guards' fingers. Soon' after the discharge of
Mullen on September 30, this complaint came to the attention of Respondent with,
the result that they were provided with 'a wooden tool with which to unlock the hood
of the test cars.
About 10:30 a.m. on September 10, Mullen was the guard at post 27, a busy exit
gate. Lieutenant Burg had gone to check a matter on the fourth floor of the assembly
building. As he was returning to his office, Burg passed windows on the third floor
,of that building from which he could, oversee post 27. Burg stopped and watched.
He noted that the guard on duty did not raise the hood of a test car as required by
the order of March 28, 1962, and that the guard appeared to fail to give the cab of a
vendors' truck a visual inspection as it passed through the,post. Burg then proceeded
to walk out of the building and up to post 27 which took about 10 or 15 minutes.
As Burg approached the post he noted that the guard failed to check the'trailer of
another vendor's vehicle. After that vehicle had pulled through the gate, Burg went
to the post and found Mullen to be the patrolman on duty. Burg reprimanded
Mullen for his failure to inspect the cars properly and reinstructed him as to the
proper inspection method. He ended by saying "Get on the stick, Charlie."
In his testimony Mullen had admitted that he had not raised the hood of the test
car, blaming that on the fact that he had caught his wedding ring in the grill and
thus was unable to unlock the hood. Mullen also included in his testimony the claim
that he had just returned from a relief and thus was not the patrolman on duty while
Burg had been watching from the third floor window. However, that test car had
exited the post while Burg was on the third floor and, in addition, the post log shows
2 It appeared to this Trial Examiner that Timmins, Porter, and Labbe all suddenly be-
came unduly, if not intentionally, vague about the conversation regarding Mullen Each
testified that their 'various conversations on the subject, if their testimony can be accepted
at face value, were almost universally restricted to one sentence conversations. Such
single sentence conversations are hardly commonplace, especially, over a cup of coffee.
3 At Respondent's plant there are at least 30-odd posts to which guards are assigned.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Mullen had been the only guard on that post from at least 8:20 a.m, to 12:15
p.m. Thus, although Burg could not identify the patrolman while at the third floor
window, the record requires the finding that that patrolman on duty had been Mullen.
Immediately after the incident Lieutenant Burg filed a report thereof which became
a part of Mullen's personnel file .4
On the morning of September 27 Mullen was the patrolman on duty at post 26,
another busy exit post . On this occasion shortly before 8:30 a.m., Timmins was
standing on a stairway overlooking the post and noted that Mullen failed to check
the cabs of two company trucks; in addition , Mullen had failed to open the tractor
door of a vendor's truck and had waved a company tractor through the post without
any inspection . When Timmins got to the post , he called Mullen's attention to what
he had seen and Mullen admitted that he had waved a company tractor through the
post without inspection because it was going just across the street to another com-
pany dock.
Timmins preceded to the office of Chief Machesney where he reported his repri-
mand of Mullen to Machesney . Machesney ordered Mullen replaced on duty and
proceeded to suspend him without pay at 8:55 a.m ., after Mullen had admitted that
he had permitted the tractor to go through the post uninspected.
Company records and the driver of that tractor proved that the tractor was not
driven into the dock across the street as Mullen had informed Timmins. The driver
also testified that the inspection given his tractor on that occasion did not differ from
the usual routine inspection so far as he could tell.
Later that day Timmins filed a written report of the incident with Mullen at gate
10 with Chief Machesney.
On October 1 Mullen was notified by Timmins that he was discharged , effective
September 30, 1963, for failure to perform his duties.
Later that same day Mullen, accompanied by his attorney, George Roumell, had
an exit interview with Timmins in the absence of Chief Machesney who was ill.
Timmins testified that both Mullen and Roumell acknowledged the fact that Mullen
had been derelict in the performance of his duties.5 He also testified that Mullen
had been told that he would be considered for reemployment if he applied.
About 3 weeks after the termination of Mullen , Patrolman O'Meara had a con-
versation with Sergeant Porter in which O 'Meara, in his testimony , quoted Porter
as saying "Why did he [Mullen ] bring down that lawyer? He didn 't need a lawyer.
. He should have went to the Labor Board . He was fired for union practices." 6
About 2 weeks thereafter O'Meara testified that he had another conversation with
Sergeant Porter in which Sergeant Porter asked O 'Meara if O'Meara had gone to
the Board and signed an affidavit . After some sparring on the question O'Meara
answered that he refused to answer the question "on the ground that it might in-
criminate me." Thereupon Porter said , "You did. You are a marked man." Also
during the course of this conversation Porter allegedly said , "Charlie [Mullen] might
have been fired for union activities , but I will deny it anywhere" and that "We can
fire anybody we want to around here, you know . . . . We may have to blacken a few
records to do it in the meantime , but sooner or later we can get the man we want." 7
B. Conclusions
For years the Board and the courts have emphasized the fact that the activities of
an employee on behalf of a union is no guarantee against his being discharged for
cause . In other words, no matter how active an employee may be on behalf of his
union , he has, under this Act, no assurance of continued employment if he does not
do his job.
4 General Counsel attempted to discredit this report on the ground that the same had
not been called to Mullen 's attention properly . Even if General Counsel's attempt had
been successful , this would not discredit the facts.
6 Roumell was not called as a witness.
6In O'Meara ' s affidavit given to a field examiner of the Board , Porter was quoted as
saying "He [ Mullen] was crazy to bring a lawyer anyway, his first choice should have
been the NLRB because of his union background "
7 O'Meara ' s affidavit does not mention this last conversation.
Porter denied having made any of the above -quoted statements attributed to him. How-
ever, he did admit on cross -examination that he might have made some of them while
sympathizing with some of Mullen's friends.
Although the Examiner believes that Porter may have "sympathized " more than he ad-
mitted, I do not believe that this conflict need be resolved as the statement, under the
circumstances here, is isolated.
CADILLAC MOTOR DIVISION , GENERAL MOTORS CORP. 749
That unhappily is the situation here.
There is, and can be, no doubt but that Charles Mullen was the most active pro-
union employee among the plant guards at Respondent's plant. Not only was Mullen
the most active proumon employee, but Respondent knew him to be such. He led
the Plant Guards Union organizational drive in 1960. When that failed at a Board-
conducted election, he tried to revive interest in it again in 1961. Respondent was
well aware of Mullen's efforts in both instances. Mullen made no secret of those
efforts.
Respondent was also aware of Mullen's attempt to interest the Teamsters Union
in organizing the guards in July-August 1963 as well as of the Teamsters refusal
on legal grounds to undertake such a drive. Respondent also was aware that Mullen
had then once again turned to the Plant Guards Union for another attempt at or-
ganization. Respondent's awareness was due to the fact that Mullen made no secret
of his efforts. Except for the statement of Sergeant Porter to the effect that the
patrolmen needed a union like they "needed a hole in the head"-a remark which
any person living in the year 1963 might well have made-there is no showing in
this record that Respondent put any obstacles-verbal or otherwise-in Mullen's way.
The only suggestion of any respondent-made obstacle to Mullen's efforts is that
somewhat mysterious one-sentence 4 a.m. conversation- between Timmins and Ser-
geants Porter and Labbe in Timmins' office where the record suggests that Timmins
may have asked Porter and Labbe to "watch" Mullen., There is, of course, the fact
that when Sergeant Porter received a report from a patrolman that Mullen had asked
the patrolman if he was "for or against us" in making another organizational attempt
with the Guards Union, Porter immediately reported that fact to Timmins. How-
ever there is no showing that Respondent actually. made any adverse move against
Mullen's actions on behalf of the Union.
I must candidly state that this whole episode as dragged out of Respondent's wit-
nesses on cross-examination does not altogether ring true. The obvious reluctance
of Respondent's witnesses to testify candidly and frankly. about these episodes created
a suspicion in my mind that there was more to the episode than Respondent per-
mitted to come to light. However the courts have always held that suspicion is not
enough to prove a case. I agree.
On the other hand Lieutenant Burg and Timmins did catch Mullen in moments
when he was not performing his required duty. Mullen did, as he acknowledged
under pressure, permit a few vehicles to go past his post without a proper check.
This leads to the question as to just what was "a proper check." As to this question
I would have to say that Respondent's printed and oral rules as to the proper checking
of vehicles left much to be desired. The testimony at the hearing created a picture
of some laxity throughout the plant guard system: Respondent's generalized direc-
tives to the patrolmen as to their duties left too much to the interpretation of the
individual patrolman. For instance, just exactly what is a "visual inspection" of the
cab of a tractor? Must the cab door be opened? Or is looking through the window
of the cab sufficient?
Hence I was not impressed with Timmins' testimony that Mullen did not "visually"
inspect the cabs of the various vehicles passing post 26. How was Timmins able to
determine that Mullen had not "visually inspected" the cabs?
If that were all the testimony against Mullen, one would begin to think that the
discharge was based on a mere pretext.
However Mullen's own testimony showed that on both September 10 and 27 he
had not inspected existing vehicles in the manner he knew was required by Respondent.
Furthermore the record also shows that the explanation given by Mullen for such
laxity was not accurate: on September 10 when he was observed by Lieutenant Burg,
although Burg could not recognize the patrolman on duty, Mullen had not just come
on duty from a relief; and on September 27 when he was observed by Timmins, the
tractor Mullen waved through did not just go across the street to another dock.
Although the penalty imposed by Respondent appears to have been overly severe
under the circumstances existing, I must find that Respondent discharged Mullen
for cause.
Accordingly I will recommend that his complaint be dismissed in its entirety.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Cadillac Motor Division, General Motors Corporation, is engaged in commerce
within the meaning of Section 2(7) of the Act.
2. Respondent has not engaged in any unfair labor practice within the meaning of
Section 8 (a) (1) or (3) of the Act.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
I hereby recommend that the complaint in the instant matter be dismissed in it&
entirety.
St. Louis Typographical Union No. 8, affiliated with Inter-
national Typographical Union , AFL-CIO and Union Employ-
ers' Section of the Graphic Arts Association of St. Louis, Inc.
Case No. 14-CB-1135. November 17, 1964
DECISION AND ORDER
On March 26, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in any unfair labor practice and recommending that
the complaint herein be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs, and the Respondent Filed a brief in support
of the Trial Examiner's Decision.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.
The facts are essentially undisputed. In brief, they show that the
Association or its predecessor has bargained for many years with the
Respondent and four other printing trade unions. In September 1963,
the Association and the Respondent met to negotiate a modification of
their agreement. At this meeting the Association informed the Re-
spondent that at the next and successive meetings the Association would
have a court reporter present to make a verbatim transcript of the
bargaining. The Respondent offered to meet without the stenographer,
but the Association insisted on his presence. At a meeting between the
parties in November 1963, at which a stenographer was in attendance,
the Respondent offered to discuss the question of the reporter's pres-
ence "off the record" or in private, but the offer was refused and the
meeting terminated. The Respondent indicated that had its offer been
accepted, it would have explained its policy not to negotiate in the
presence of a reporter and that it would not deviate therefrom. The
Association field charges alleging that Respondent's refusal to meet in
the presence of the stenographer violated Section 8(b) (3).
149 NLRB No. 71.