General Motors Corp.

National Labor Relations Board - Board Decisions

Aug 23, 1971

192 N.L.R.B. 927 (N.L.R.B. 1971)

NEW DEPARTURE-HYATT BEARINGS DIV. OF GMC 927
New Departure-Hyatt Bearings Division of General
Motors Corporation and William Jandik. Case
22-CA-4251
August 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 26, 1971, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in and was not engaging in certain other
unfair labor practices as alleged in the complaint and
recommended that the complaint be dismissed as to
those allegations . Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent , New Departure-Hyatt Bearings
Division of General Motors Corporation, Clark, New
Jersey, its officers, agents, successors , and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER , Trial Examiner: This proceeding
was tried before me in Newark , New Jersey, on January
6-8, 1971, pursuant to a charge filed on October 27 and a
complaint issued on December 11, 1970. The complaint
alleges that Respondent violated Section 8(a)(1) and (3) of
the Act by warning employees of reprisals because of their
protected union and concerted activities; and by discrimi-
natorily laying off and refusing to reinstate two employees
because of their union activities. All parties were represent-
ed by counsel and were afforded full opportunity to
introduce relevant evidence and contentions. Briefs were
received from all parties.
Upon the entire record' and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESS ; LABOR ORGANIZATION
INVOLVED
Respondent, a Delaware corporation, with its principal
office and place of business at Detroit, Michigan, manu-
factures and sells automotive bearings and related products
at its plant here involved in Clark, New Jersey. Its annual
purchases and shipments in interstate commerce from
points outside New Jersey exceed $50,000. I find that at all
material times Respondent has been and is engaged in
commerce within the meaning of the Act.
Local 736, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (the labor organiza-
tion here involved and called Local 736 or the Union) is a
labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
1. Contractual relations
Local 736 has been the statutory representative of
Respondent's employees at the Clark plant for many years.
Respondent's latest collective agreements with the local
and its International (United Automobile, Aerospace and
Agricultural Implement Workers of America herein
called UAW) expired simultaneously on September 14,
1970,2 at which time UAW began a nationwide strike
against General Motors. The Clark plant, which produced
parts and materials for automotive competitors (Ford and
Chrysler) and farm implement manufacturers (Caterpillar
and International Harvester), as well as for General
Motors customers, was not struck but continued to operate
on a curtailed basis. On November 11, UAW and General
Motors reached tentative agreement and on November 20
a new National Agreement was ratified by the Union to
become effective on November 23. The new Local
agreement (covering job classifications and wages, seniori-
ty and layoff procedure, shift rotation, etc.) was still being
negotiated at the time of this hearing.
2. The "ACTION" movement
In April or May, several Local 736 members, including
I Transcript as corrected by my order on notice dated April 2, 1971.
s Unless otherwise indicated, all dates are 1970.
192 NLRB No. 136
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two alleged discriminatees (Jandik and Zarrello),
organized "ACTION," whose avowed objective was to
"motivate the members of Local 1736 into greater participa-
tion in union affairs." The group authored, published, and
openly distributed leaflets among Respondent's employees.
A few members also wore shirts containing the word
ACTION on the back. Some (including recruits) wore
ACTION buttons.
Jandik and Zarrello were two of the three editors and
publishers of the ACTION periodicals and, among others,
contributed articles appearing therein. In general, AC-
TION leaflets (issued about once each month) attacked as
"unfair" existing shop rules; complained against the
manner in which the Company and Union were handling
grievances; criticized the union leadership for ignoring
contract breached by management; and urged membership
participation to create a "dynamic, honest, and effective
[union] as it once was." One flyer, signed by a 3-man
investigating committee, called upon the union member-
ship to attend a scheduled (August 30) union meeting at
which the Committee intended to report "whether there
were good and sufficient reasons to terminate the honora-
ble [i.e., honorary] withdrawal cards of two [foremen] .. .
and to draw formal proceedings against them." 3
It is conceded that Respondent was aware of, the
activities of ACTION. The gatehouse guard would, receive
copies of material distributed and give them to Personnel
Manager Martin. Martin testified that ACTION's activity
had been mentioned at foremen's (training) meetings at
which he would explain that ACTION was simply "an out-
group that wants to be an in-group politically" to take over
the union leadership-a not uncommon phenomenon
which takes place every 2 years when an antiunion
administration faction attempts to take over before a union
election.
B. Alleged Interference, Restraint, and Coercion
The complaint alleges that Respondent through its
foremen and agents Arnold, Lucas, and Lo Bianco warned
employees of reprisals for engaging in union activities.
1. Albert Arnold
Arnold, a Department 630 foreman, had at one time
been an active union committeeman and, according to
employee Zarrello, "was quite interested ... in the union
itself and he knew quite a bit about it." Both Zarrello and
Jandik testified that they were "very friendly" with Arnold,
their foreman . In May, shortly after the first ACTION
leaflet was issued , Zarrello approached Arnold and asked
what he "thought of it." Zarrello credibly testified that
3 The two foremen involved were Lo Bianco and Carroll (infra, sec. B., 3)
whose withdrawal cards were ultimately "terminated," thereby in effect
expelling them from the Union . Under the Union's constitution, although a
member promoted to a supervisory position could retain an "Honorary"
card, his card could be canceled if "guilty of acts detrimental to the Union."
4 As indicated , the above findings are based almost entirely on the
credited testimony of Zarrello and Jandik ; Arnold 's brief testimony on the
incidents is at least partly consistent. I do not credit employee Miliziano's
testimony that Arnold had at one time warned hum to watch himself
because "[t]hey are out to get" him and other ACTION adherents. For
reasons hereafter detailed (sec. B ., 4), Miliziano did not impress me as a
reliable witness; he was a zealous anticompany partisan , prone to
Arnold told him;, "you know, you guys are sticking your`
necks out by writing'stuff like this." When asked what he
meant, Arnold replied, "well, the company don't, like this.
It rocks the boat and the union doesn't go for it because
you are hitting them, , too." Zarrello further testified that
they "talked about it ... for a while, what we were trying
to do;" that he explained to Arnold that they "were trying
to form a better union" and to increase membership
participation; and that Arnold agreed;that "the ideas were
legitimate ... there was nothing far out about it . . ."
except that neither the Union or Company would like it.
Jandik credibly testified that in July, when ACTION was
investigating the possibility of withdrawing honorary union
cards held by two foremen (supra, fn., 3), Arnold said, he
"doesn't think it would go anywhere`and all you are doing
is working, waves." Jandik "disagreed," stating that "this`
was something that has never been done in the history of
Local 736.114
2. Robert Lucas
Lucas was a "per diem" or temporary foreman from, July
9 through September 21, when he reverted to his: regular
rank-ande-file status 5 Zarrello_ credibly' tested' that in
August, Lucas told him that the ACTION group _was
"really rocking the boar'; that the Company was"not, going
"to put up" with it; and' that it had "a list of all the
ACTION guys," with several activists,(including Jandik
and Zarrello) on top of the list slated for dismissal. Later
that month, . Lucas told Zarrello that, he had' been at a
management meeting concerning ACTION; that "the
company doesn't like what's going on because they feel
they are in the middle between the union and the ACTION
group," and that they are going to, get rid of you, even if it
is for throwing a match on the floor or for spitting'on the
floor." The next ` day Lucas told, Zarrello that he' had
"better keep especially straight" because a piece'of paper-
came down from , the,''front' office signed by Labor`
Relations Representative Belejack and Personnel Manager.
Martin asking "what is being-done about Zarrello, and
Jandik." Again, in August, during a grievance, meeting
among Zarrello, a union representative, and Lucas, the
latter said, "let's face it ... you guys are going to get
nailed and the union is not going to help you because they
want to get rid of you guys." ' '
In August and September, Foreman Lucas also had
"quite a few conversations" with Jandik. In mid-August
Lucas told, him that he had been at a foreman's training
session at which he was told that ' management didn't like
the idea of ... being in, the middle of the local union} and
the ACTION group and they ' would have to destroy the'
exaggerate ., ,I credit Arnold's testimony that in a conversation with,
Mihziano, shortly before the instant hearing ,,' 1iliziano, "sitting, on his
bicycle," commented that "Meehan (counsel for the General Counsel)
dragged you guys over the coals", and gave "you guys a rough time."
Miliziano also said , "I remember when von were a good union man. What
happened?"
5 "Per diem" foremen are "hourly rated employees" temporarily
assigned to perform supervisory functions. However, they possess "the "same
basic authority as . other [regular] foremen" while acting in that
capacity. Lucas was not called to rebut any of the °statements attributed to
him.
NEW DEPARTURE-HYATF BEARINGS DIV. OF GMC
weakest link [ACTION ]. " At ; the end of August or early
September, Lucas told Jandik that Lucas wasl given the
choice of- staying on the third or the second shift, but he
was-going to take the second because "the Company is out
to get you and [he-didn't] want to be the one to give [him]
a violation" since, they "have been friends too loaf g." About
a week later, after a Local 736 meeting (at which
cancellation of the honorary withdrawal cards held by two
foremen was,being discussed); Lucas told Jandik "you and
Zas [ Z a r r e l l o ], you, better s t a y straight .. • . because the
union in not going to help you . you got them shook
and the company is out to get you." ,
3. Thomas Lo Bianco
Employee Walters credibly., testified that at the beginning
of August-shortly after publication of the ACTION
leaflet regarding termination of honorary union withdraw-
al cards held by two foremen, including Department 720
Foreman Lo Bianco (supra, fn. 3) -Lo Bianco approached
him and said, "your buddy's in -trouble now ... I can't
explain-it now but if I have anything to do with it, anything
in my power, I will get [Department,630•employee] Jimmy
Zarrello back here on the 720 department ... I will get on
his back and I'll stay there." That evening Walters
telephoned Zarrello and related the conversations Zarrello
then filed 'a grievance alleging that Lo Bi co had
threatened to get him transferred to Lo Bianco's depart-
ment in order` to "get" Zarrello.6
4. Other supervisors
At the hearing Miliziano, who was called by Charging
Party, testified on . three, other incidents, which, however,
were , not alleged . as violations in the complain(. (In, his
brief, General Counsel relies on these incidents only to
establish "Respondent's anti-ACTION animus' or mo-
tive.") Thus, Miliziano testified that in September, Fore-
man Sager "confidentially", told him he had received
instructions "to nail" Miliziano because he was "mixed up
with :..'those ACTION guys;" denying this statement,
Sager 'testified that- while once checking M' ' iano's
timecard (one of his "normal"' activities), Miliziano
remarked, "I know you guysare out to get me." According
to Miliziano, on another -occasion (mid-October-while
riding his bicycle-Assistant - Superintendent Evans
stopped to greet--him-and told him he had been "instructed'
to make trouble" for people (hike Miliziano) who were
wearing ACTION -buttons. Evans denied telling Miliziano ,
about such instructions, admitting only to greeting him as
he would other employees he met in the plant. Finally,
Miliziano quoted Foreman Levitt as telling him just 2 days
before the instant-hearing that "it's going to'take no time at
6 Lo Bianco admitted a conversation with Walters around this time, but
claimed ` it" was Walters who approached him with an ACTION leaflet,
saying that Zarretlo "was going to get'[him ) fired. " Lo Bianco testified that
he ':figured [Walters ] was kidding" and -told him "it is too bad that
[Zarrellol=isn't in,[his ] department so he ,could tell [Lo Bianco ) himself." As
between Lo Bianco and Walters, I credit the latter who impress ed me as a
more reliable witness.
However, -I credit Lo Bianco's denial that around the same t#me (early
August) Lo Bianco told employee Miliziano that, "we are going to get you
ACTION skunks any way that we can, one at a time." As previously noted
929
all ... to build up a record" against the two alleged
discriminatees in this case (Jandik and-Zarrello); according
to Miliziano, it was he who initiated the conversation. by
telling Levitt that he must by this time have "found out
that Zarrello and Jatidik are kind of sharp guys."
Miliziano, as he testified, "was interested in determining
what [Levitt's ] reaction might be to the current trial."
I do not, credit Miliziano's versions of the described
incidents, I have already indicated (fns. 4 and 6) my
reservations about the credibility of Miliziano, who
impressed me as a biased anticompany witness going to
extreme lengths to make out a case against Respondent.
Miliziano's anticompany grudge could be due to resent-
ment at the fact that he had received a-2-week disciplinary
layoff.?
5. Conclusions
a. It goes without saying that "[a]ny determination of
the exact nature and effect of [employer ] statements can be
made only with due regard for the context of the
statements" ()V.L.R.B. v. Morris Fishman & Sons, Inc., 278
F.2d 792, 796 (C.A. 3)), including the nature - of the
remarks, the relationship between the, utterer of the words'
and listener, and, above all, whether, the statement "tends
to interfere with the free exercise of-employee rights under
the Act." (N.L.R.B. v. Illinois Tool Works, 153 R2d 81-I,
814 (C.A. 7). See,also N.L R.B. v. Henderson Transit Lines,
429 F.2d 1223, 1227 (CA 3)). Tested by these criteria, I
find that Foreman Lo Bianco's statement to employee
Walters that he was going to attempt to "get" Zarrello back
in his department and "get on his back" constituted an
unlawful threat- of changes in working conditions and of
imposing more stringent working conditions on him
because, as the background of the utterance establishes,
Zarrello was one of the signers of the-ACTION leaflet
urging employees to attend the monthly, union meeting
where the subject of terminating Lo Bianco's honorary
withdrawal card was to, be discussed. Lo Bianco's threat
constituted restraint, coercion, and interference with ,the
exercise of protected union and concerted activity in
violation of Section 8(axl) of the Act
b. Also falling within the proscription of Section 8(axl)
are Foreman Lucas' statements to Zarrello that he and
others in the ACTION group were' on a company list,
slated for dismissal; that the Company was going "to get
rid of them" on pretexts; that management had inquired as
to` what was being done about Zarrello and Jandik; and
that Zarrello and other ACTION employees-were "going
to -get -nailed." Similarly coercive were Lucas' remarks to
Jandik that the Company would' have to destroy" the
ACTION group, that Lucas had elected to transfer to-the
second shift so as not to= have to charge Jandik (who
(fn. 4), Miliziano, who attributed this remark to in Bianco, was not a wholly
reliable witness. It is to be noted that according to Miliziano, the
conversation started with Lo Bianco's alleged attempt to -butter" up
Zarrello (a member of the union committee inve stigating the desirability of
withdrawing Lo Bianco's honorary union -card). I. am not persuaded by
Miliziano's testimony that, upon his remark to Lo Bianco that ACTION is
,doing pretty good, the latter became so "enraged" as to utter the alleged
threat about ridding the plant of ACTION "skunks:,
r Miliziano's appeal from the Regional Director 's dismissal of the unfair
labor practice charges he filed were still pending at the time of this hearing.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked on- the third shift) with pretextuous violations; and
that Jandik and Zarrello "better stay straight" because the
Company-was out to get them. To be sure, Lucas was only
a minor supervisor-indeed, only a temporary or 'per
diem foreman . Moreover , there is no evidence whatever ,
that his utterances were sanctioned by higher company
authority or reflected company policy. However, since he
was admittedly clothed with supervisory authority when he
spoke to the employees , his minatory remarks are attribut-,
able to Respondent: His predictions and threats concern- -
ing the consequences - of, protected , concerted activity-'
tended to engender , fear in employees and to inhibit them
in the exercise of their right to engage in such activity, in
violation of Section - 8(a)(l) of the Act. Cf. N.L.RB. v. J. W.
Mays, Inc., 356 F.2d 693, 698 (C.A. 2).
c. Foreman Arnold's statements to Zarrello and Jandik
stand on a different footing . Arnold, was a former union
committeeman and at one time represented those two
employees in union matters. Both Zarrello and Jandik
regarded him as a "friend ." It was not unnatural for
Zarrello to approach Arnold- as he did-to solicit. his -
opinion - as ,to what he "thought" of the first published
ACTION, leaflet. In, my view, Arnold's response that "the
ideas were legitimate," but that.neither'-the Company, or
Union would like it, and that the men were "rocking the
boat" - and ; "sticking their necks out" constituted no more
than an, expression of personal views on a subject brought'
up by an employee. In the context of the prevailing
situation, the, described statements ' may not fairly be
regarded as illegal restraint or, coercion . Cf. N.L.R.B. Y. M
& W Marine Ways, Inc., 411 F.2d 1070, 1073 (C.A., 5). The
same is-trueof Arnold's subsequent remark to,Jandik that _
ACTION's . attempt to investigate the withdrawal of
honorary union cards held by,two foremen was unworth- ,
while and only , "making waves."
It is ,accordingly found that while ' (as alleged in the
complaint) Respondent violated-Section 8(a)(1) of the Act
by,,- warning employees of reprisals for engaging in union
activities through the conduct of, Foremen Lo Bianco and
Lucas, , it did not similarly violate Section 8(aXI), through
the conduct -of Foreman Arnold.
C. 'Alleged, Discriminatory Layoffs
1. Introduction; company layoff policy
As, already noted (sec. A, 1), the Clark plant, which was
not,, struck on September 14,.,continued to operate on a
curtailed basis. Plant Production Control Manager Ranndel,
credibly testified,that at the beginning of the strike the
Company, received instructions, from - General Motors
"customer plants" not to ship; the parts they, had been
buying because the strike had closed their plants clown. At
a meeting between Clark Plant Manager Himmelein,
Randel, and the divisional head for Ohio,8 it was decided
on an "inventory build-up 11cy ," i.e., to produce parts
sufficient only to build an inventory in ^ anticipation of, a
heavy poststrike- demand. According ' to Randel, this
8 The Clark plant is within the jurisdiction of theiNew Departure-Hyatt
Bearings Division, headquartered at San'dusky,' Ohio. ' ,
9, The Clark plant produced many 200 or 300 , different kinds of
parts=several hundred thousand pieces daily. -
entailed the "difficult" job, of estimating- "as best -we could-
when the strike would be-over," the customer "demand"
for particular parts in ,the poststrike period, and proper
production scheduling at Clark during the strike.9 Manage-
ment decisions effectuating the "inventory build-up poli-
cy" were made- by the plant manager (Himmelein) and--
production control manager (Randal), on a daily , basis,
determining each day "when certain' departments and,
shifts would be closed down in line with our-needs ." Clark
Plant Personnel Manager Martin credibly testified that,_in
accordance with a plan worked out by the three personnel
managers of the division (supra,, fn. 8),, it was - decided that
"the only practical way that we could handle the send-
homes and run efficiently was to send the people home as
the jobs ran out"-which meant that if "all of a sudden
there [was] no more .work for, [a] line or machine [the,j job
[of the employee on the line or ,machine ] has run out."
According-,to Martin, the unionseniority agreement -was
disregarded not because that agreement had expired,,but
because the complex "bumping procedure" provided in
that ,agreement =just "couldn't be applied" since-"jobs were
running out .:. faster than we could put a man on them";
he emphasized that the plant was faced with a "chaotic
situation" -as customers were canceling orders on -"short
notice." Assistant Manufacturing Superintendent Wilhelm
indicated that he -would convey the Plant Manager's
decision- - to close a- - particular line or operation- to the
foreman under his jurisdiction' who, in turn, would layoff
the men on that operation. The-foreman would notify the
affected employee that he was "being sent home due to a
labor dispute" and "will-- be notified; of recall" later.
The record shows that beginning with September 22 until
around the strike settlement (November. 12), Respondent
laid off 1,546 employees19 While-General Counsel and
Charging Party do not dispute Respondent's legitimate
need to effect layoffs, they do contend that the layoffs of
Jandik and Zarrello were discriminatorily motivated. ,
2. The layoffs ,
Jandik and Zarrello were, two of the eight setup operators
working on the, third shift in the , cold-form, press area-of
Department 630, at the time of their September 25 layoff.
There are three lines of presses,(A, B, and C) in the area,
each with four presses per line. Jandik and Zarrello worked
on the B line, their normal ,stations, at the time of the
layoffs. Jandik,--who had been -with Respondent II years,
and Zarrello, who, had been with . Respondent for 9 years,
were capable of running all,three lines of presses . Although
the- products- made by the -three_ lines in Department 630
varied, the "different, lines of machines , . [involved]
basically, ... the same operation." -
As in other machine shutdowns,,,the "final" decision to
discontinue the Department 630 third-shift B line, (Jandik's
and Zarfello's) was made '' by Plant Manager Himmelem,
after consulting with Production,- Control , Manager
Randel.ll Himmelein then directed AssistantManufactur-
ing Superintendent Whilhelm to shut down-the B line and
10 Approximately 3,200 were on the Clark plant payroll when the strike
began (September 14), of whom 2,800 actually` worked at that time.
11 While Randel could not recall the specific, details leading to the
decision to shut down, including the particular time it was-made, he
NEW DEPARTURE-HYATT BEARINGS DIV. OF GMC 931
Wilhelm relayed the instruction, to Third-Shift Foreman
Arnold.12 According to Randel, the decision to shut down
the B line (rather than the A and C lines) was made "on the
basis of , . . customer demands for the products produced
in line B." as well as the extent of company inventory "of
those particular products in line B.1113 He also indicated
that the Company "would give very heavy weight to
elimination of a third shift operation if it were possible to
do so" because it was more costly to operate the third shift
(fie., wage rates were higher) than the first and second
shifts.
After receiving his instruction from Assistant Manufac-
turing Superintendent Wilhelm to lay off "whoever you
have on the B line," Foreman Arnold handed Jandik and
Zarrello their layoff notices at'the end of the third shift on
September 25, explaining that "it isn't because of you, it's
because we are shutting the B line down on third shift "
Jandik remarked that it was "pretty obvious" that the two
men were being sent home because of their ACTION
activities, indicating that he "expected it." Zarrello said
that 'he would see Arnold in' "discrimination court." 14
The record shows that on third-shift B line at the time of
the layoffs, in addition to Jandik and Zarrello (setup men),
were 'Readie (a press operator) and Hazzard (a trucker).
Readie, who was on sick leave on September 25, was laid
,off several days latter before returning to work. Hazzard
was retained until October „30 because he serviced the
entire department on the third shift, including lines A and
C which continued to operate. On October2, Respondent
laid off eight other third-shift employees, seven more
(including from the cold press; group) on October 23, and
the last two (Hazzard and Barton) on October 27 and 30
when the entire third ' shift ,was eliminated. First- and
second-shift employees were also laid off beginning with
September 30, with, only one or two C line employees
continuing after October 27 or November 3.
The B line in the third shift actually continued in
operation for some time after the September 25 layoff of
Jandik and Zarrello. Employee Barton, a setup man on the
third-shift C line, credibly testified that pursuant to
Foreman Arnold's instructions he operated the third-shift
B line regularly in the first week after the layoff (September
28-October 2) and thereafter on two or three nights a week
until laid off on October 27. According to Barton, on one
occasion two other setup men also worked on the B line.
While admitting that Barton sometimes was moved froir
the C to B line, Foreman Arnold testified that this wat
done in accordance with normal practice;' explaining
"when we have trouble with C line or 'A line, when the
presses are down, they can't run or we can't get-them
repaired, to utilize -a man's 8 hours, we move him to a
'machine that's open. And B line happened to have been
opened." According to Arnold, he could not, -and normally
did not, send a third-shift employee home at 2 or 3 o'clock
in the morning in the event of a machine, breakdown,; but
"move[d] him to a machine that is not running." Relying
on production records for-the period Barton had worked
on the third-shift B line, Assistant Manufacturing Superin-
tendent Wilhelm indicated that various problems on the
presses could have accounted for Barton's move from the
C to B line, including lack of parts or needed repairs to the
C machines.15 According to Respondent's production
records, a total of some 48,000 parts were produced on the
third-shift B line in the week after the layoff of Jandik and
Zarrello (September 28-October 2) as compared to 76,000
parts in the previous week - (September 2125).16
3. The recall of Jandik and Zarrello
Personnel Manager Martin credibly testified and without
contradiction that on November -16 -(after the tentative
strike settlement, supra; sec. A), the Company started to
recall laid-off employees in accordance with strict
seniority.17 Since the layoffs had been madewithout regard
to seniority (supra sec. C, 1), Respondent made certain to
recall its senior- employees even if this meant"send[ing] a
junior man out." Based on the seniority -arrangements
agreed to, Jandik was recalled on November 30- and
Zarrello on December 8.
4. Conclusions
a. Whether the approximately 2-month layoff of Jandik
and Zarrello during the nationwide General Motors strike
was grounded on -discriminatory, considerations (i.e. the
two employees' active Union or protected. concerted
activities) or on legitimate business grounds. presents only a
-factual question, the key issue being,"what motivation
truly dominated the Employer in laying off ..." the
employee[s]." N.LR.B. v. Jones Sausage Co., 257 F.2d 878,
882 (C.A. 4)..In determining this issue, it mustbe borne, in
mind that the Board may not substitute its judgment for
that of the employer - in nondiscriminatory sections for
layoff, "These are matters to be determined by the
indicated ' that the decision was made in usual , routine manner. His failure
to recall these details is understandable since, as Randel testified, he and the
plant manager "had hundreds of'these kinds of decisions to make ' during
the strike and they , had met "quite ,frequently" for, this purpose . Randel
impressed me as an honest witness and I credit his testimony. Assistant
Manufacturing Superintendent Wilhelm's testimony on this point is in
essence consistent with that of Randef. -
12 Based on credited ' testimony of Arnold and Wilhelm , both of whom
testified that Arnold had received his instructions at the end of the third
shift, at 6:30 a.m. on September 25. The instruction was also recorded in a
logbook, which Arnold described as "the way" the assistant, superintendent
and any foreman communicates with a foreman on a subsequent shift as to
unfinished work, "trouble with the machines," and other matters. Both
Wilhelm and Arnold testified that they were not told of the specific reason
for selecting the third-shift B line for shutdown.
is As previously noted, line B produced products different than A and C.
14 The above findings are based on a composite of credited testimony of
Arnold, Jandik , and Zarrello.
15 Jankik conceded that machine -breakdowns and stoppages occurred
"quite frequently," citing as typical situations "breaking of tooling, punches,
dies, left outs. '..." He indicated that while he could (and was expected to)
correct some breakdowns, other would have to await correction by "an
electrician machinist or millwright, whatever was needed." -
16 In the second week after the layoff (October 5-9), 68,620 parts were
fabricated , but only 7,140 in the 3 ensuing days (October 12-14)--the last
days for which production figures were produced.
17 Although the National Agreement, ratified on, November 20,
contained a broad provision regarding seniority for layoff and recall, it was
the more specific and detailed seniority provisions of the still "nonexistent
Local Seniority Agreement" that Respondent agreed - to follow, ,in
compliance with the Local's demand . According to Martin, the Company
agreed that "it made sense to do it this way . So we brought back [the
employees l by the Local Seniority Agreement."
932 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD
management ..- ." (`N L.R.B. v. Montgomery Ward & Co.,
157 F.2d 486, 490 (CA. 8)).
Based on the, entire record, including the considerations
stated below, I find that General Counsel failed to meet the
burden, which is.his; of -establishing by a preponderance of
the substantial credible evidence that the layoffs here were
unlawfully motivated.
b. To be sure, Jandik and Zarrello were two of the most
active adherents of ACTION-a militant group within
Local 736 that sought to wrest better working conditions
from Respondent,' if' necessary by opposing the union
leadership. Nor was there''any "secret," as Respondent
concedes (br. p. 16)' . as' to the two employees' role in
ACTION. However,;"As has been stated .:. violation of
8(a) (1) or 8(a)(3) cannot be based solely on proof that an
employee -was active' in' the union and that the employer
was opposed to `the organization of its employees." Nbe v.
N.L R.B., 418 F.2d 1001, 1008 (C.A. 5). Indeed, even the
"fact that an employer harbors an anti-union bias cannot
be used to contaminate its every subsequent act." Barnwell
Garment Co. v. N.L:RB., 398 F.2d 777, 779 (C.A. 6). There
must be a link between the union activity and the claimed
discriminatory `conduct. No such link has .been demon-
strated here. While the credited evidence discloses that two
.,low-placed supervisors- temporary and a regular fore-
man (Lucas and Lo Bianco)--uttered- coercive anti-AC-
TION -statements, neither had any'voice in the decision to
lay off Jandik and Zarrello; in fact, neither supervised or
worked with- the two employees. The record establishes
that the September 25 decision to shut down the Depart-
ment 630 third-shift B line and layoff "whoever . . . [was]
on the B line" on that night was formulated by' Plant
Manager Himmelein and Production Control Manager
Randel, and that this-decision was passed on to Assistant
Manufacturing Superintendent Wilhelm and then to
Department 630 Foreman Arnold. There is not a scintilla
of evidence impugning the motives of the first three; and
the credited evidence shows that Arnold was not hostile to
the ACTION movement in general nor to Jandik and
Zarrello in particular, although in response to the employ-
ees' request for his views regarding the movement, Arnold
did tell them of possible risks. While Jandik at the time of
the layoff thought it was "pretty, obvious"' ,(as he told
Arnold) that -the, layoff was discriminatorily motivated
because he and Zarrello were among the first-laid off in the
department, it is clear that a findinguof discrimination must
"rest upon the motive of the employer ... not upon what
it appears to have been ... to the victim." N.L.R.B. v.
Dalton Brick & Tile Corp., 301 F.2d 886, 897 (C.A. 5).
Moreover,, "[t ]he mere fact that an employer may desire to
terminate , an employee because he engaged in unwelcome
concerted, -activities -does not, of itself, establish the
unlawfulness of a [layoff ]." Klate Holt Company, 161
NLRB 1606, 1612.
c. Respondent's legitimate need to curtail production
and effect layoffs during the strike, unquestioned. In
issue only is the procedure it employed in selecting Jandik
and Zarrello_ In my view, Respondent offered an adequate
explanation. As Respondent's officials indicated, the
Company was confronted with "hundreds"' of production-
reduction decisions. The use of seniority in effecting
layoffs was unmanageable, and impractical since it would
have entailed interminable "bumpings',It was decided
that in order to "run efficiently" the Company would have
"to send the people home as the jobs ran out," dispensing
with the employees then operating the particular' jobs and
machines. Jandik and Zarrello,happened to be- operating
the third-shift, B line when it-was decided to discontinue
producing the parts fabricated- on that line on the night
shift.
d._ There is, of course, in this case,, as in many layoffs
for cause, countervailing evidence tending to indicate
discriminatory motive. In cases of this type the evidence
seldom is one-sided . The most damning ,circumstance is
that despite the decision to close down the,,'third-shift B line
and, lay off Jandik and Zarrella on September 25, that line
was operated regularly ` in 'the ensuing week (September
2&-October 2) and thereafter sporadically, (two or three
nights, a week)- until October ' 27. On the other hand,, the
record shows that the line was operated not by a'B,line but
by a C line employee (Barton); that it'was not unusual to
move, a C line, setup man to another (B) line when a t
machine could not function properly because of needed
repairs or, shortage - of parts; ,that the C linelnvolveddid
require parts and -repairs after September 25; and that
although the amount of production on the ,B line was
significant during the first week of the layoff 'it was far
below its, previous- output. Additionally, it appears that
Respondent had contemporaneously also laid off another
B' shift employee on Jandik's and Zarrello's I shift (press
operator Readie), who was not shown'^to'be, an' ACTION
supporter. By October 2, eight additional third-shift
employees and on October 23 seven more were let go.
Finally, it is undisputed that after settlement of the strike
Jandik andZarrello were ' called back ona strict nondiscri-
minatory seniority basis.
Accordingly,,efter giving due weight to these and other
considerations `adverted to, I nevertheless concludejor
reasons ` already indicated, that the preponderance of
substantial credible evidence does not support the allega-
tion of the complaint that the layoff and- recall of Jandik
and 'Zarrello were discriminatorily- motivated, in violation
'of Section 8(a)(3) and(1) of the Act.
CONCLUSIONS OF LAW
1. By impliedly and directly threatening employees for
engaging in protected, `concerted and union activities,
Respondent interfered with, restrained, ,and' coerced its
employees in the exercise of rights guaranteed in Section 7,
in violation of. Section 8(a)(I) of the Act. -
2. The aforesaid violation is an unfair labor practice
affecting commerce with the meaning of Section 2(6) and
(7) of the Act.
3. 'General Counsel has not established by a fair
preponderance of the, substantial, credible evidence that
Respondent discriminatorily laid off and failed to reinstate
employees-, Jandik and Zarrello, in ' violation' of Section
8(a)(3) and (1) of the Act, as alleged in the- complaint.
THE REMEDY
Having, found that Respondent has engaged in certain
NEW DEPARTURE-HYATT BEARINGS DIV. OF GMC 933
unfair labor practices, I shall recommend the customary
cease-and-desist order in cases of this nature, designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make the
following recommended: 18 ,
ORDER
Respondent, New Departure-Hyatt Bearings Division of
General Motors Corporation, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Directly or impliedly warning employees of reprisals
for engaging in protected, concerted or union activities.
(b) In any other like or related manner interfering with,
restraining , or coercing employees in the exercise of any of
their rights under Section 7 of th7e Act.
2. Take the following affirmative action, which its is
found will effectuate the policies of the Act:
(a) Post at its plant-in Clark, New Jersey, copies -of the
attached notice marked "Appendix." 19 , Copies of said
notice, on forms provided by the Regional Director for
Region 22, shall beposted by Respondent, after being duly
signed by its authorized representative, immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees, are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, orcovered by
any other material.
(b) Notify said Regional Director, in writing, within .20
days from receipt of this Decision, what steps have been
taken to comply therewith. '
IT Is FURTHER ORDERED that the complaint be dismissed
in all other respects.
is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rule and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations , and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for-all purposes.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall, be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board." -
20 In the event that this recominendedOrder is,adopted by tho-Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 22 , in writing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.""
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the ' United States Government
After a trial at which all sides had the' chance to give
evidence,' it has been ' decided that we have violated the
National Labor Relations Act, and we have been ordered
to post this notice.
The National Labor Relations Act gives you, as employees,
certain rights including the right - to self-organization; to
form, join, or help unions ; and to bargain- collectively
through a representative of your own choosing . According-
ly, we give you these assurances:
WE WILL NOT directly or indirectly warn you of
reprisals for engaging in protected concerted or union
activities.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of- your
rights under, the National Labor 'Relations Act.
NEW DEPARTURE-HYATT
BEARINGS DIVISION OF
GENERAL MOTORS
CORPORATION
(Employer}
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered ; defaced,
or covered by any,other material.
Any questions concerning this notice or compliance , with
its provisions may be directed to the Board's Office,
Federal Building, 16th Floor , 970 Broad Street, Newark,
New Jersey 07102, Telephone 201-645-2100. ,