General Motors Corp.

National Labor Relations Board - Board Decisions

Apr 17, 1967

164 N.L.R.B. 15 (N.L.R.B. 1967)

GENERAL MOTORS CORP. 15
General Motors Corporation , Chevrolet Motor
Division and Claude V. Jackson, Jr.
Case 10-CA-6501.
April 17,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 25, 1966, Trial Examiner Morton D.
Friedman 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 that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's.
Decision and a supporting brief, and the Respondent
filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed March 24, 1966, by Claude V. Jackson, Jr., an
individual, herein referred to as Jackson, the Regional
Director for Region 10 of the National Labor Relations
Board, herein called the Board, issued a complaint on
behalf of the General Counsel of the Board on May 19,
1966, against General Motors Corporation, Chevrolet
Motor Division,' Respondent herein, alleging violations of
Section 8(a)(3) and (1) of the National Labor Relations Act,
as amended (29 U.S.C. Sec. 151, et seq.), herein called the
Act. In its duly filed answer, Respondent, while admitting
certain allegations of the complaint, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me at
Atlanta, Georgia. All parties were represented and were
afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs.
Briefs were filed by the General Counsel and the
Respondent.2 Upon consideration of the entire record,
including the briefs of the parties, and upon my
observation of each of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation with a plant
and place of business located at Atlanta , Georgia , where it
is engaged in manufacture and sale of automobiles and
trucks. During the calendar year immediately preceding
the issuance of the complaint herein , a representative
period , Respondent sold and shipped finished products of
a value in excess of $50 ,000 to customers located outside
the State of Georgia.
It is admitted , and I find , that Respondent is an
employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that International Union,
United Plant Guard Workers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues presented by the pleadings are:
1. Whether Sergeant James A. Lewallyn interrogated
employee Claude V. Jackson unlawfully and threatened
the same employee with discharge in violation of
Section 8(a)(1) of the Act.
2. Whether the Respondent discharged and thereafter
failed and refused to reinstate employee Claude V.
Jackson for cause or for discriminatory reasons.
B. The Events as Revealed by the Testimony
Claude V. Jackson, Jr., was hired by the Respondent in
its Atlanta, Georgia, plant on January 1965 as a patrolman
in the Respondent's plant security department. Jackson
was so employed during the entire period of his
employment.
Approximately 2 or 3 weeks after Jackson had first come
to work for the Respondent, Patrol Sergeant Cole asked
Jackson if the latter had received any literature pertaining
to a union. Jackson answered in the negative. However, 2
or 3 days later Jackson did receive some union literature
and told Cole about it. Cole asked Jackson to bring the
literature to him or to Chief Harry S. Breazeale, the head
of plant security. Thereafter, Jackson brought the material
to the plant and gave it to Chief Breazeale.3
i The name of the Respondent appears as amended by motion
at the hearing
2 By motion dated August 18, 1966 , General Counsel moved to
correct the transcript in certain respects . There being no
opposition to the said motion it is hereby granted and the
transcript is corrected accordingly.
3 This incident regarding the request for union literature is
recited for background purposes only because the event occurred
more than 6 months prior to the filing of the charge herein and
pursuant to Section 10(b) of the Act cannot be used as a basis for
an unfair labor practice finding,
164 NLRB No. 5
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patrolmen in Respondent 's plant security department
are rotated on a monthly basis between three shifts. The A
shift, or first shift, also known as the day shift, begins at
approximately 7:30 a.m. and ends at 3:54 p.m. The B shift,
also known as the second or afternoon shift, begins about
3:30 p. m. and ends at approximately 11:54 p.m. The C
shift, which is also known as the third or midnight shift,
begins at 11 :30 p.m . and continues until 7 : 54 a.m.
A number of the patrolmen, Jackson included, became
unhappy with the shift rotation and desired to remain on
one shift permanently. This desire was made known to
management and the employees involved requested that a
vote be taken on shift preference. In connection with this
movement, in the latter part of October 1965, Jackson
engaged Chief Breazeale in a conversation. Chief
Breazeale stated that he understood that some of the
patrolmen had been discussing voting on shift preference.
Breazeale then told Jackson that if shift preference were
voted in, younger men such as Jackson would have to take
the C, or midnight, shift because of their seniority.
Breazeale added that this would cause the morale of the
guards to be lowered and also the men would become dull
and bored being on one shift all the time. Jackson
answered Breazeale that he, Jackson , personally preferred
working on one shift because he had much difficulty
adjusting physically from the day shift to the night shift.
Breazeale merely shrugged his shouldeers and walked
off.4
According to Jackson, the next event concerning shift
preference occurred during the week of November 21,
1965, probably on Thursday evening of that week. He
claimed that right after rollcall of the guards on the C shift
(which occurred probably about 11:30 p.m.), he brought up
the question of shift preference with Sergeant Lewallyn.
Jackson testified that he asked Lewallyn if the guards
were going to have a vote on shift preference. Lewallyn
answered that he did not know anything about it. Then,
according to Jackson, he asked Lewallyn to talk to Chief
Breazeale about the matter . The guards were then
dismissed from rollcall and proceeded to their assigned
posts. However , according to Jackson , the following night
he asked Lewallyn if the latter had checked with
Breazeale . Lewallyn answered that he did not check on
anything that was not of importance to him.
According to Jackson, on that same day he had a casual
conversation with Sergeant Lewallyn at post No. 1 to
which Jackson was assigned . During that conversation,
according to Jackson, Lewallyn asked Jackson if the latter
had heard anything about organizing the plant protection
department. Jackson answered in the affirmative and
then, according to Jackson, Lewallyn said, "Don't get
involved with it. It could cost you your job."
On cross-examination Jackson expanded on this
testimony and said that it was in the squadroom at
approximately 11:35 p.m., after Sergeant Lewallyn had
read the roll, and as the men started to leave the
squadroom after rollcall , Jackson spoke up and said, "Just
a minute I have a question that pertains to everyone."
According to Jackson, all of the guards on that shift
waited as Jackson asked Lewallyn if and when the
patrolmen were going to get the vote on shift preference.
Thus, if Jackson 's testimony is accepted , these incidents
occurred almost at midnight on November 25 and 26,
Thursday and Friday of the week of November 21.
According to Jackson, also, Lewallyn was the shift
sergeant for that shift.
However, Sergeant Lewallyn testified that during the
time mentioned in Jackson's testimony, the week of
November 21, Lewallyn was assigned to and worked the
A, or morning, shift which began at 7:30 a.m. Lewallyn
agreed with Jackson's testimony to the effect that Jackson
was assigned to the C, or midnight, shift which goes off
duty at 7:54 a.m. Lewallyn's testimony was substantiated
by two other items of evidence. First, introduced into
evidence was an exact copy of the shift assignments for
that period of time which definitely show that Sergeant
Lewallyn was assigned to the A shift as shift sergeant
whereas Jackson was definitely assigned to the C shift.
Additionally, the record reveals as will hereafter be
explained in detail, that this was the same period of time
during which a certain shipment was made which was not
handled properly by Jackson. This demonstrates that
Sergeant Lewallyn, in order to clear up this misshipment,
was working during the day with the people in the finance
section. This would show that Lewallyn was not on the
night shift with Jackson.
Although, on rebuttal, Jackson sought to change his
testimony as to the dates of the alleged incident above
recited to some time in December, I conclude that this was
afterthought. I find, therefore, that because of Jackson's
insistence as to when the alleged incident occurred and
because the other testimony and evidence showed that it
could not have occurred because Lewallyn and Jackson
were working on different shifts, I conclude and find that
Lewallyn's denials are more reliable than Jackson's
testimony as a whole with regard to the alleged incident.
Moreover, for reasons hereinafter set forth, I find and
conclude that Jackson's testimony is in other ways
unreliable.5 Additionally, from my observation of the two
individuals involved, Jackson and Sergeant Lewallyn, I
conclude that Lewallyn, by the manner in which he
testified and by his general demeanor, is the more reliable
of the two witnesses.
Accordingly, I find that the incident as testified to by
Jackson did not occur.
According to Jackson, additional activities with relation
to the employees concerted efforts to obtain shift
preference came about when some of the other guards and
Jackson decided sometime toward the end of the year 1965
or the beginning of 1966, that further action would have to
be taken in order to obtain shift preference. Accordingly,
on or about January 5, 1966, Jackson, together with two
other employees, met at one of the employee's home and
decided to make contact with the Union. Thereafter,
Jackson participated in the solicitation of union
authorization cards with some success . However, it was
not until March 2, the day on which Jackson was
discharged, that Jackson by a telephone call to the Union's
International headquarters in Detroit let it be known to the
Union that the guards at the Respondent's plant were
interested in becoming union members . This, then, was
the extent of Jackson's union activities which, by his own
admission on the stand, Jackson had kept secret from the
Respondent and Jackson s supervisors.
As alluded to above, Jackson was given notice of
discharge on March 2, 1966. His work record as a
patrolman in the Respondent 's security department was
somewhat less than satisfactory according to Jackson's
From the uncontroverted testimony of Jackson which I credit . S See below the incident in which patrolman Ellison was
involved in relation to the events leading to Jackson 's discharge,
GENERAL MOTORS CORP. 17
own admission. Thus, on Saturday, November 20, 1965,
just prior to the week during which the alleged incident
related heretofore was suppose to have occurred, Sergeant
Lewallyn was advised that a vehicle had been incorrectly
shipped. As a result of this information, Lewallyn, on
Monday morning, November 22, began an investigation to
find the lost unit. It took him virtually the entire day of
November 22 to search out the lost vehicle and to
complete the paperwork to find the mismatched records
relating to that vehicle. Finally, toward-the-end-of the 22d,
the mismatched unit and its proper papers were found, the
paperwork corrected, and the unit released to the
Respondent's carrier.
Because Chief Breazeale was on vacation when this
incident occurred, Sergeant Lewallyn prepared a report to
Breazeale relating what happened and attaching copies of
the papers. No names were mentioned in the report
because at that time Lewallyn was not sure whether it was
Jackson or some other guard who was responsible for this
error.
Upon Breazeale's return to work on November 29, the
report was brought to his attention. On November 30,
Breazeale called Jackson to his office for an interview
connected with the error in unit shipment. Jackson was
shown the copy of the vehicle order in question together
with the plant protection stamp and the initials on the
order. Breazeale asked Jackson whether the initials were
his. Jackson admitted that they were. Breazeale thereupon
went over the entire situation with Jackson pointing out to
the latter his negligence in the matter . Breazeale also
advised Jackson that his performance had been
unsatisfactory and that it was expected that he would
improve the quality of his work. Additionally , Breazeale
told Jackson that a written record of this incident would
become a permanent part of Jackson's personnel file. On
the witness stand Jackson admitted the interview and his
part in the incident . He stated that at that time he told
Chief Breazeale that he would be more careful in the
future.
Approximately 3 months later , on February 23, 1966, 22
units (vehicles) were released by Jackson for shipment and
loaded on trilevel railway cars preparatory to shipment
without any indication on the accompanying paperwork as
to whether the units had been properly inspected prior to
shipment. As a result of this negligent work on Jackson's
part it became necessary for Sergeant Lewallyn, assisted
by an employee from the shipping department, to inspect
the 22 units which were covered with ice and snow on the
railroad cars to make comparisons in order to process the
necessary paperwork in connection with the shipment.
In accordance with the Respondent's procedures, and in
his line of duty, Lewallyn reported this incident to Chief
Breazeale . As result, Breazeale interviewed Jackson
concerning the improper processing of the 22 units.
Breazeale showed Jackson the paperwork and Jackson
admitted that he could not find any identification on the
car orders which would indicate that the vehicles had been
properly inspected before shipment . Breazeale then went
over the procedures for shipment to be followed on post 8
where the negligent work had been performed by Jackson.
He told Jackson, as Jackson had been fully informed
before, that each unit was to be checked individually and
each car order was to be initialed before the vehicle was
released. Moreover, Breazeale told Jackson that the car
order was to be stamped and dated as soon thereafter as
possible. Jackson admitted the error but indicated that he
had performed all the work and that he was sure that he
had checked the units but had neglected to stamp and
initial the paperwork.
Breazeale advised Jackson of the seriousness of the
matter and Jackson apologized for the incident and stated
once again that if he were given another chance it would
never happen thereafter. As in the case of the earlier
incident of negligence on Jackson's part, Breazeale told
Jackson that a record of the incident would be placed in
Jackson's permanent personnel file.6.
Thereafter, on March 2, 1966, Jackson was assigned to
the railroad tower, post 5. Before he left to report to his
post, Jackson inserted and hid in his clothing a magazine
for the purpose of reading while on post. It is conceded
that the reading of magazines on duty by guards is strictly
forbidden. On that day, while Jackson was on his post,
Chief Breazeale , who was in the area in connection with
his duties, noticed that Jackson was sitting in the tower
with his head down. Prior to this Breazeale had been
informed that Jackson had concealed a magazine on his
person. At the same time, approximately 10:30 a.m.,
Breazeale observed a railroad car containing material
being switched in and out of Respondent's premises with
the door open. Breazeale brought this matter to the
attention of the general foreman of the department and
continued to observe the switching. During the same
period of time Breazeale also observed Jackson's
performance. Jackson continued to sit in the tower bent
over. At no time during this switching of the open boxcar
did Jackson raise his head to observe whether any other
activity was occurring on the post with which he was
charged. Finally, Breazeale approached the tower itself
and noticed as he approached that Jackson rose from
where he had been sitting and walked to the other side of
the tower . Breazeale climbed to the tower and asked
Jackson where the book or magazine was that Jackson had
been reading a few minutes before. At first Jackson denied
reading a book or magazine but upon being pressed by
Breazeale , Jackson handed Breazeale a pamphlet issued
by the Respondent . Breazeale was not satisfied and
continued to press Jackson who finally opened a desk
drawer and out of a brown folder pulled a Reader's Digest
magazine and handed it to Breazeale.
There is some dispute as to what occurred next.
According to Breazeale he asked Jackson if the latter had
observed the open railcar being switched on and off the
premises and Jackson admitted that he had not.
According to Jackson, when asked by Breazeale
whether he had observed the open railcar, Jackson
informed Breazeale that he had already informed
patrolman Ellison, the plant protection clerk about the
matter and had given Ellison the boxcar number.
However, Ellison testified credibly that Jackson. never
made. any such call to him.'
I find, therefore, that Jackson did not make the
telephone call as he claims and that the incident occurred
as related by Chief Breazeale.
After discussion of the railcar incident , Breazeale
advised Jackson that the latter was negligent , that this was
not the first time, and that there was no excuse for it. He
6 All of the foregoing is from the uncontroverted testimony of
Breazeale to which Jackson agreed on the witness stand.
7 I credit Ellison because from his general demeanor and his
forthright manner of testifying I am convinced of his reliability.
Moreover , there is nothing in the record that would cause me to
believe that Ellison was not a wholly reliable witness . On the other
hand, I elsewhere find that Jackson is somewhat less reliable.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed Jackson that we would talk to him later and left
the post. About an hour later Jackson was relieved of his
post by Breazeale and taken to the office of Oliver
Moseley, the Respondent's salaried personnel
administrator. Jackson was interviewed by Moseley.
During this interview Jackson's record as an employee was
reviewed with him and he was informed that his work had
been unsatisfactory. Moseley further told Jackson that he
did not believe that the latter would make a good security
patrolman, that perhaps the job was too dull for him, and
that, therefore, Jackson would probably like some other
work. Moseley further told Jackson that the latter, being a
young man, would be given an opportunity to resign so that
his record would not show a discharge. Moseley also
informed Jackson that if he did not resign, he was to be
discharged as of March 15. Jackson refused to resign but
before he left the office was asked to sign a release of
funds which were deposited in his behalf in the
Respondent's stock-sharing plan.
Jackson further testified that no other employee had
even been reprimanded for reading on the job. However,
on the witness stand Jackson was asked if he knew of any
instance of his knowledge when a guard was reading on
the post to the knowledge of a company supervisor.
Jackson answered that he had not, although he had. never
heard of any guards being discharged for reading on the
post or being reprimanded or warned for such conduct.8
Thereafter, on March 14 Jackson was relieved of his
post of duty at approximately 11:30 a.m. and proceeded to
change his clothes. As he started to leave, he was
confronted by Sergeant P. Harrington who asked him for
his employee's pass. That was the last day Jackson
worked.
The foregoing constitutes all of the events as disclosed
by the testimony and other evidence with the exception of
an incident which allegedly occurred a few days after
Jackson's final release. According to the combined
testimony of employees Charles Lee Ables and
J. D. Bentley, on March 18 the two were having coffee
during their break in the production portion of the plant
where they worked (they were production employees and
not guards), when Sergeant Lewallyn happened by.
According to Ables and Bentley, Lewallyn walked up and
Ables asked Lewallyn if the latter would care for a chew of
tobacco. Lewallyn refused and Ables then said to him, "By
the way, what happened to our boy Jackson?" According
to the testimony of these two individuals, Lewallyn said,
"Well, the company let Jackson go."
When Ables asked Lewallyn why Jackson was let go,
Lewallyn said that Jackson was messing (another word
used) with the Union. Then Ables said that would not be a
good enough reason to let a fellow go and Lewallyn said
that in his opinion it was.
Lewallyn, in testifying, specifically denied that he spoke
to either Ables or Bentley on March 18 at the coffee
machine. He testified that, in fact, he did not see Bentley
or Ables all that day. He specifically denied that he ever
told Able or Bentley or both of them that Jackson was
discharged for "messing with the Union. Nor did he tell
either of them at any time that union activity was a good
enough rea,un for discharging an employee.
It should be further noted that both Ables and Bentley
admitted that neither of them knew Sergeant Lewallyn
very well except to see him about the plant upon occasion
9 With regard to allegedly disparate treatment of Jackson.
General Counsel also introduced the testimony of former patrol
employee Jennings C. Brown, Jr. However, I have studied
and both admitted that they were not particularly friendly
with Jackson. As a matter of fact they both admitted
that their acquaintanceship with Jackson was indeed
a very limited one, approximately the same type of
acquaintanceship as they had with Lewallyn. It is difficult
for me, therefore, to believe that under these circum-
stances Ables would have asked Lewallyn, "What
happened to our boy Jackson."
On the other hand, there was nothing in the conduct on
the witness stand of either of these two individuals, Ables
and Bentley, which would indicate their lack of veracity or
their lack of reliability as witnesses. Although there were
some inconsistencies in their testimony on cross-
examination, I find nothing therein as trier of fact upon
which to base a refusal to accept their testimony. Yet, I
have heretofore, for other reasons, credited Sergeant
Lewallyn. As noted before, I have stated that I was
impressed with the manner in which Lewallyn testified
and that his demeanor struck me as being that of an
honorable and reliable witness. Thus, I find that the
credibility resolution as between the testimony of Ables
and Bentley and the denials of Lewallyn becomes most
difficult. However, in view of my ultimate disposition of
the issues in this case, I find it unnecessary to dispose of
this credibility issue.
C. Concluding Findings
As noted above, Jackson, by his own admission, was less
than a satisfactory employee. On two separate occasions
he was involved in costly mixups of unit shipments
brought about by the negligent handling of his assigned
paperwork. Then, to cap the climax, he was caught
reading on the job when he should have been observing an
open boxcar and then proceeded to tell an untruth with
regard to his alleged report of that open boxcar. Although,
it would seem that to some extent the guards or patrolmen
at the Respondent's plant were involved with clerical and
paperwork, it is also beyond question that they are even
more directly involved with the security of the plant.
Jackson was told at his exit interview by Moseley that he
did not measure up to the standards which the Company
required for its security employees and Moseley recited to
Jackson the items upon which the Respondent based its
decision that Jackson was a security risk. Since security
was at stake, it would seem that this was a more than
reasonable conclusion and that the Respondent's action in
discharging Jackson was, therefore, warranted in the
absence of unlawful motivation.
We must, therefore, look to the record for indicia of
pretext and unlawful motivation as claimed by the General
Counsel. I have heretofore set forth the testimony of
Jackson that his union activity was, indeed, secret. The
only evidence which I have not heretofore rejected upon
which a finding of unlawful motivation for Jackson's
discharge could be based comes from the incident
involving Bentley, Ables, and Sergeant Lewallyn.
Assuming, for the moment, that Ables' and Bentley's
testimony is credible we have a statement by a minor
supervisor to the effect that Jackson was discharged for
union activity. This, would, indeed give rise to suspicion
that Respondent's motivation was discriminatory.
But I note that Jackson was discharged by Moseley and
Chief Breazeale. Lewallyn's part in this discharge was
Brown's testimony carefully and find that it is too contradictory
and equivocal to be considered in arriving at any conclusions.
GENERAL MOTORS CORP. 19
virtually nonexistent except for the fact that he did report
the incidents of the mixed shipments to Chief Breazeale.
While it is true that it can be inferred, on conjecture, that
Breazeale or Moseley might have told Lewallyn the reason
for Jackson's discharge, I find that the more reasonable
inference is that if Lewallyn made the statement to
Bentley and to Ables at all it was merely Lewallyn's
estimate of the situation rather than a repetition of fact.
Additionally, as noted above, Jackson was an admittedly
poor employee and his union activity was admittedly very
secretive. I have discredited Jackson's account of
conversations regarding shift preference with Sergeant
Lewallyn and, moreover, I have found that he was neither
threatened by Lewallyn nor by any other supervisor or
official of the Respondent. Additionally, the General
Counsel has failed in his attempt to show disparate
treatment in the case of Jackson.
Accordingly, I find that the testimony of Ables and
Bentley, which I initially hesitate to credit, merely gives
rise to a suspicion of unlawful motivation and no more. I
cannot conclude, therefore, that in the light of the entire
record and especially of Jackson's poor record as an
employee, that the motivation for the discharge was in any
way unlawful. The burden of proof in such cases, it is well
established, is on the General Counsel and I conclude that
the preponderance of the evidence is not such as to
warrant a finding of unlawful motivation.
In coming to this conclusion, I have also considered the
fact, as set forth above, that Jackson made no attempt to
contact the Union in Detroit, or for that matter, any union
organizer aside from the employees in the plant, until the
date he was discharged for malfeasance. If, indeed, this
record gives rise to any strong suspicion at all, it gives rise
to the suspicion that Jackson's union activity was an
afterthought by Jackson as a device to save his job after he
had proved himself to be an incompetent employee.
On the basis of all of the foregoing, therefore, I shall
recommend that the complaint in this proceeding be
dismissed in its entirety.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the complaint
heretofore filed in this proceeding be, and the same hereby
is, dismissed.
298-668 0-69-3