General Motors Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1977

232 N.L.R.B. 335 (N.L.R.B. 1977)

GENERAL MOTORS CORPORATION
General Motors Corporation, Packard Electric Divi-
sion and Local No. 717, International Union of
Electrical, Radio and Machine Workers, IUE-
AFGCIO. Case 8-CA-104 18
September 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On March 21, 1977, AdmiGstrative Law Judge
George Norman issued the attached Decision in this
proceeding. Thereafter, Respondent filed a brief in
support of the Administrative Law Judge's Decision,
and the General Counsel filed exceptions to the
Administrative Law Judge'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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge except
as herein modified.
We agree with the Administrative Law Judge that
Respondent's offer to impose a certain (lesser)
penalty on the condition that an employee waive her
right to file a grievance under the contract, followed
by Respondent's announced increase of the penalty
to 60 days because the employee refused to waive
filing a grievance, was an unlawful interference with
the employee's rights guaranteed by Section 7 of the
Act in violation of Section 8(a)(l), and that Respon-
dent's stated increase in penalty following the
employee's refusal to waive her right to file a
grievance under the contract was an act of discimina-
tion against her in violation of Section 8(a)(3) of the
Act.' We do not agree, however, with the Adminis-
trative Law Judge's conclusion that, in view of the
isolated nature of these violations, Respondent has
engaged in no unfair labor practices which warrant
the issuance of a remedial order. Notwithstanding
the fact that the record revealed only one instance of
Respondent's unlawful conduct, the right to file a
grievance with one's collective-bargaining represen-
tative over wages, hours, and worlung conditions has
been a basic statutory right. We consider Respon-
dent's interference and discrimination to be too
serious to be so summarily disposed of. That they
appear here as "isolated" violations of the Act does
not lessen their adverse and far-reaching effect.2
I The stated mcreased penalty was not actually imposed.
Interlake, Inc.. 218 NLRB 1043 (1975).
232 NLRB No. 53
In view of the fact that these violations have
occurred, we agree with the General Counsel that it
will effectuate the policies of t he Act to issue a
remedial order herein. We cannot be sure that
Respondent's interference with its employees' right
to file a grievance and discrimination against
employees for the refusal to waive such right will not
agAn bccur. Therefore, in order to assureprotection
of this right to Respondent's employees, we shall
accordingly issue an appropriate remedial order for
the violation found.3
Substitute the following for the Administrative
Law Judge's Conclusion of Law 3:
"3. Respondent's offer to impose a certain (lesser)
penalty upon the condition that an employee waive
her right to file a grievance with respect thereto,
followed by Respondent's announced increase of the
penalty to 60 days because the employee refused to
waive filing a grievance, was an unlawful interference
with the employee's right guaranteed by Section 7 in
violation of Section 8(a)(l) and Respondent's an-
nounced increase in the penalty following the
employee's refusal to waive her right to file a
grievance under the contract was an act of discrimi-
nation against her in violation of Section 8(a)(3) of
the Act."
ORDER
Pursuant to Section lqc) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
General Motors Corporation, Packard Electric Divi-
sion, Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with the right of its employees to file
a grievance under the grievance-arbitration provi-
sions of its collective-bargaining agreement.
@) Discouraging union activity by announcing that
it would impose a greater penalty following an
employee's refusal to waive the right to file a
grievance under the grievance-arbitration provisions
of the collective-bargaining agreement.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization to form labor organiza-
tions, to bargain collectively through representatives
of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
1-uxuray of New York Division of Beaunit Corporation. 185 NLRB 100
(1970).
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its place of business in Detroit,
Michigan, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director Region 8, after
being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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, or covered by any
other material.
(b) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER MURPHY, dissenting:
Unlike my colleagues, I would adopt the Adminis-
trative Law Judge's dismissal of the complaint herein
in its entirety, although I do not agree totally with his
rationale. Thus, the Administrative Law Judge found
that Respondent's threat of more severe punishment
if a grievance were filed was in violation of the Act.
While I would agree in an appropriate situation this
conclusion would be warranted, I do not find this to
be such a case. For, Respondent's conduct amounted
to a total retraction of that threat, and I would
therefore not find that Respondent thereby violated
the Act.5 Thus, the dispute was, in fact, the subject of
a grievance and resolved under the contractual
grievance procedure, and the penalty was reduced
substantially as a result thereof. Further, I note, as
did the Administrative Law Judge, that Respondent's
conditional offer was made to the union representa-
tive rather than to the employee involved, and there
is no other evidence of union animus on the part of
Respondent. Accordingly, I find no violation of the
Act and hence no remedial order is warranted.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the Un~ted States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
"ee American Federation of Muricians, Local 76, AFL-CIO (Jimmy
Wake& Show), 202 NLRB 620 (1973), where the Board relied on the fact
that the conduct involved had been so substantially remedied by respon-
dent's subsequent conduct that there was no basis for either a finding of
v~olation or a remedial order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with the right of our
employees to file a grievance under the grievance-
arbitration provisions of the collective-bargaining
agreement.
WE WILL NOT discourage union activity by
announcing that we will impose a greater penalty
for the refusal of our employees to waive their
right to file a grievance under the grievance-
arbitration provisions of the collective-bargaining
agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form
labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection.
DECISION
GEORGE NORMAN, Administrative Law Judge: On
September 9, 1976,' Local No. 717, International Union of
Electrical, Radio and Machine Workers, IUE-AFLCIO,
herein called the Union, filed with the Regional Director
for Region 8 of the National Labor Relations Board, herein
called the Board, a charge alleging that General Motors
Corporation, Packard Electric Division, violated Section
8(a)(l) and (3) of the National Labor Relations Act, herein
called the Act, by various acts and conduct. On October
22, a complaint was issued on behalf of the Board's
General Counsel by the said Regional Director. Respon-
dent duly answered the complaint, included a number of
affirmative defenses, and denied that it had violated the
Act as alleged. On the issues thus joined, the matter came
on for hearing before me at Warren, Ohio, on January 26,
1977, and was closed on the same day. All parties were
present at the hearing and were represented by their chosen
representatives. All had an opportunity to call and examine
witnesses and to adduce relevant and material evidence.
After the close of the hearing, a brief was filed by
1 Unless otherwise indicated, all events occurred in the year 1976
GENERAL MOTORS CORPORATION 337
Respondent, but the counsel for the General Counsel
disclosed that he would not file a brief.
Upon the entire record in this case, including my
observation of the witnesses, and upon consideration of
Respondent's brief, I make the following:
I. THE BUSINESS OF RESPONDENT
General Motors Corporation is a Delaware corporation
engaged in the production of automotive and other
equipment. Its principal offices are located in Detroit,
Michigan. It has manufacturing and assembly plants and
ofices in several States of the United States. General
Motors Corporation, Packard Electric Division, herein
called Respondent, is an unincorporated division of
General Motors Corporation and is located in Warren,
Ohio. It is the only operation involved in this proceeding.
Respondent is engaged in the manufacture, production,
and assembly of electrical wiring harnesses for automo-
biles. Annually, in the conduct of its business, Respondent
ships from its Warren, Ohio, plant goods valued in excess
of $50,000 directly to points located outside the State of
Ohio. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION
Local No. 717, International Union of Electrical, Radio
and Machine Workers, IUE-AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Facts
On the afternoon of August 31, a disciplinary interview
was held at Respondent's Warren, Ohio, plant regarding
the unexplained absence of employee T. Ceja on the
previous 3 working days. The purpose of the interview was
to give the employee an opportunity to explain her absence
prior to the contemplated assessment of discipline. In
attendance were employee Ceja, with her union representa-
tives, District Committeeman David Hipple and Zone
Committeeman Joseph Reedy. Hipple and Reedy are also
the representatives of the Union and employees in
Respondent's Warren, Ohio, plant. Representing Respon-
dent during this interview were T. Zucco, the supervisor of
the department in which Ceja worked, Kenneth Rambo, a
general foreman and Zucco's supervisor, and F. Nicpon,
Respondent's labor relations representative.
At the conclusion of the interview, Ceja was told to
return to her job and that Respondent would be getting
back to her after reviewing the statements made at the
interview. After Ceja left, Rambo commented to Hipple
and Reedy regarding Ceja's situation, expressing the view
that based upon Ceja's past disciplinary record the next
There is no explanation for the reducrion in punishment from the 60
days announced by Rambo and the 30 days given by Zucco.
"hop Rule 6 concerns habitual absences without reasonable cause.
' These paragraphs state that management will not mterfere w ~ t h
employees because of any lawful union activity znd that management will
step would normally be discharge. Neither Hipple nor
Reedy commented and the parties agreed to resume
discussions of the matter the next day.
The following morning, September 1, Hipple and Reedy
again met with Rambo at Rambo's desk between 7:30 and
8 a.m. Rambo proposed that Ceja be issued a discipline
which would consist of layoff from the balance of her shift
that day and 45 days of layoff on her record, but actually
to be off work 15 days only with no right to protest, i.e., no
right to file a grievance under the cdlective-bargaining
contract grievance procedure. Hipple told Rambo that he
couldn't agree to it, that he would have to talk to Ceja,
whereupon the meeting concluded.
Hipple told Ceja what Rambo proposed as a punishment
including the condition that she forego her right to grieve
on the matter. Ceja told Hipple to do whatever he thought
was best for her. Later that morning, Hipple and Reedy
again met with Rambo at his desk. Hipple told Rambo that
he would not agree to waive Ceja's right to file a grievance.
Rambo then indicated that he was going to go ahead and
issue the discipline and that it would be the balance of that
day's shift and 60 days actual layoff (60 days on her record
and 60 days off work). Whereupon, Hipple told Rambo
that they were going to file a gnevance on the matter.
Hipple went back to the department where Ceja was
working and was there while Foreman Zucco issued Ceja
the disciplinary paper which consisted of 30 days' layoff
and a pink pass to leave the plant.2
Ceja and Hipple left the plant and proceeded to write up
two grievances. The first grievance protested the penalty as
unjust for violating Shop Rule 6.3 The second grievance
protested an alleged breach by management of paragraphs
5 and 5(a) of the collective-bargaining agreement between
General Motors Corporation and the IUE.4 These griev-
ances were processed according to the contract grievance
procedure to the third step and were remanded back to the
first step for settlement.5 The grievances were finally settled
between Rambo and Hipple on a basis that Ceja would
only serve 7 days of the 30-day discipline and, if she did
not violate Shop Rule 6 again within the next 6 months, her
record would be cleared of this discipline.
IV. DISCUSSION AND CONCLUSIONS
The General Counsel contends that the discussions that
Ceja's representatives had with Rambo were part of the
disciplinary interview and not the first step of the grievance
procedure as contended by Respondent, and that by
conditioning the proposed penalty on the employee's
waiver of her right to file a grievance, followed by the
announced increase in the penalty because the employee
refused to waive her right, constitute a violation of Section
8(a)(l) and (3) of the Act.
Respondent, on the other hand, contends that the
discussions were really the first step of the grievance
procedure and that it was proper for Rambo to try to
resolve the entire matter during those discussions as he
apply the provision of the agreement equally to all employees regardless of
race, color, sex, religion, age, or national origin.
The third step grievance procedure consists of a meeting between the
labor relalions department, the plant labor relations representative. the
unlon zone committeeman, and the union subchairman.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would in handling any grievance. Respondent contends
further, that if there was a violation, that it was de minimis
and an isolated instance. Furthermore, the whole issue was
grieved and resolved citing Collyer and Spielberg. 6 Respon-
dent further argues that, in either event, no remedy is
appropriate in this case.
I agree with the General Counsel that the discussions
were a disciplinary interview and not the first step of the
grievance procedure. Rambo did not condition the im-
posed punishment on the employee's not carrying the
matter to the next step of the grievance procedure. He
talked in terms of filing a grievance. The discussions were
initiated by Respondent. Respondent does not initiate
grievances; only unit employees initiate grievances. No
grievance would have been filed in this case prior to the
imposition of a penalty. It would have been premature. The
penalty was not assessed until after the disciplinary
discussions terminated. Rambo's offer to impose a certain
penalty upon the condihon that the employee walve her
right to file a grievance with respect thereto, followed by
his announced increase of the penalty to 60 days because
the employee refused to waive filing a grievance, is an
unlawful interference with the employees' rights guaran-
teed by Section 7 of the Act. Moreover, the stated increase
in penalty following the employees refusal to waive her
right to file a grievance under the contract is an act of
discrimination against her in violation of Section 8(a)(l)
and (3) of the Act.
However, even though I conclude that the Act was
violated, there are circumstances in this case that persuade
against recommending a remedy concerning this single
isolated violation. The circumstances are these: (1) that
employee Ceja merits some form of punishment for her
unauthorized absences is not disputed; (2) Rambo ap-
peared to have acted impulsively when he stated "60 days"
after the employee's refusal to waive her right to file a
Colher Insulated Wire, A Guljond Western Systems Co., 192 NLRB 837
(1971); Spielberg Monujocturing Company, 112 NLRB 1080 (1955).
grievance; in fact, although the record is not clear, he
apparently instructed Foreman Zucco to assess only 30
days' penalty, which he did; (3) Rambo did not communi-
cate the conditional offer directly to the employee, but,
rather, to her representative; (4) the alleged violation
complained here was gneved and resolved under the
contract grievance procedure; (5) the grievances were
resolved by Respondent by reducing substantially the
assessed penalty to a layoff of only 7 days with an
opportunity for the employee to clear her record by not
repeating a violation of the rule on absenteeism; and (6)
there is no evidence of animus or acts of reprisal on
Respondent's part.
In view of the foregoing and Respondent's good
contractual relationship with the Union, including its
demonstrated coopera6ve attitude in administering the
agreement, and the absence of any similar conduct with
respect to any other employee, I do not believe that a
remedy of this single isolated violation should be required.
I will, therefore, recommend that the complaint in this
matter be dismissed in its entirety. Country Cupboard
Corporation, 179 NLRB 53 ( 1 %9).
Upon the basis of the foregoing findings of fact, and the
entire record in this case, I make the following:
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has engaged in no unfair labor practices
warranting the issuance of a remedial order.
[Recommended Order for dismissal omitted from publi-
cation.]