General Motors Corp.

National Labor Relations Board - Board Decisions

Oct 18, 1989

297 N.L.R.B. 31 (N.L.R.B. 1989)

GENERAL MOTORS CORP 31
General Motors Corporation and Ronald Sutton and
0. Richard Taylor
Local 2250, United Automobile, Aerospace and Agri-
cultural Implement Workers of America and
Robert L. Stevenson, Jr. and Ronald Sutton
and 0. Richard Taylor and Lemar Nevills.
Cases 14-CA-19252, 14-CA-19276, 14-CB-
6725, 14-CB-6735, 14-CB-6807, and 14-CB-
6816
-
October 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On November 15, 1988, Administrative Law
Judge David L Evans issued the attached decision
The Respondent Union filed exceptions and a sup-
porting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order
The judge found, inter aim, that the Respondent
Union violated Section 8(b)(1)(A) and (2) of the
Act by causing the Employer to assign Lemar Ne-
vins to a less desirable work group and by causing
the Employer to deny overtime to Nevins For the
reasons set forth below, we disagree with this part
of the judge's decision 2
The Employer manufactures automobiles and has
operated its Wentzville, Missouri production plant
since 1983 All the production and maintenance
employees at the plant are represented by the
Union The Union is represented at the plant by an
in-plant bargaining committee, which includes six
zone committeemen There are also 24 district
committeemen who handle grievance and other
collective-bargaining issues on behalf of the Union
Nevills has been employed by the Employer
since 1967 and has worked at the Wentzville plant
since 1983 On his arrival in the Wentzville plant,
Nevins began performing light repair work in de-
partment 25's group 34 In 1985, at the request of
his supervisor, Nevins began working on the newly
created second shift of one of the mutilations pride
1 No exceptions were filed to the judge s dismissal of the complaint al-
legations in Cases 14-CA-19252, 14-CB-6725, and 14-CB-6735
2 The Respondent s request for an award under EAJA is untimely and
is denied This ruling should not be interpreted to indicate that a timely
request would be granted
teams 3 Nevins filled out an application for shift
transfer—from the first shift to the second shift—
but he did not complete an application for a trans-
fer to the mutilations pride team 4 A local memo-
randum of agreement between management at the
Wentzville plant and the Union calls for assign-
ments to the mutilations pride team to last only 1
year Nevins, however, worked on the team to
which he was assigned for 2-1/2 years, until the
second shift was eliminated on November 20,
1987 5
After Nevins' assignment to the mutilations pride
team ended, he was assigned to department 25
group 33 Nevins protested this assignment to advi-
sor Billy Arnold 6 because he felt that he should
have been assigned to group 34, the group in
which he had been working full time before he
began working on the mutilations pride team 7
Shift Manager Norman Suzuki told Nevins that he
was ongmally assigned to work group 34, but that
the Union made the swich to work group 33 and
that he should get the matter straightened out with
the Union Nevills spoke with several union offi-
cials, including Joe Henry, the chairman of the in-
plant bargaining committee According to Nevins'
credited testimony, Henry stated that Nevills
should be in work group 34 Suzuki eventually
placed Nevills back in work group 34 and also told
Nevills that Pat Johnson, a district committeeman
and employee in work group 34, was the person
who had caused Nevins to be placed in work
group 33 8
3 Mutilations pride teams are responsible for investigating sources of
defects that are discovered in the production process
4 According to Nevills, he did not fill out a transfer application to the
team because he was not transferring to another department It should be
noted that the Employer s shift manager, Norman Suzuki, did not request
that Nevills fill out a transfer application to the mutilations pride team
3 The local memorandum of agreement covers the mutilations pride
team as follows
The members of the Mutilations Pride Team will be in the number
and departments specified by Management Selection will be on the
basis of seniority by department from among those utility employees
who have made application with their advisor on forms supplied by
Management and who have not previously served in this activity It
is understood that this is a temporary assignment for a period of one
(1) year, however, no more than one member will be replaced in any
30-day period The present members of this team will be removed or
replaced by the above mentioned at the rate of one every 60 days A
salaned person will be assigned to direct the activities of this group
6 Advisors are first line supervisors
7 Employees preferred working in work group 34, as opposed to work
group 33, because the work in group 34 was comparatively less monoto-
nous and there were more opportunities for overtime While Nevins was
working for the mutilations pnde team he received almost all of his pay-
checks from group 34 and continued to work some overtime in group 34
after his mutilations pride team 8-hour shift ended
6 Johnson admitted that he was the first person to question Nevills
return to work group 34 According to Johnson, the local memorandum
of agreement dictated that Nevills did not have any seniority rights in his
former group (34) and that he would be low man in terms of seniority on
returning to department 25
297 NLRB No 4
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On Monday, January 4, 1988, Nevins was of
fered overtime with the rest of work group 34 Ac
cording to Nevins, Arnold told him that he would
be in work group 34 on a day-to-day basis because
he was going to be taken out of that group 34 Ne-
vins testified that Arnold told him on January 7
that he (Nevins) should not have received overtime
on January 4 and that he was not going to receive
any more overtime with group 34 On January 18,
Arnold told Nevins that he was no longer a
member of work group 34 and that he was being
returned to work group 33 9
The complaint alleges that the Union was re
sponsible for Nevins placement in work group 33
and that this action was taken because of Nevins'
nonsupport of the Independents in the 1987 internal
union election 10 and because of "arbitrary an in
vidious reasons" The judge rejected the first
ground but found ment to the second The Union
takes exception to his finding that it acted arbitrar-
ily It contends, inter aim, that its action was based
on its interpretation of two contract provisions the
local memorandum of agreement, set forth above
in footnote 5, and paragraph 62 of the national
agreement between the Union and the Employer 11
Pursuant to its interpretation of those provisions,
the Union contends that Nevins forfeited the se
monty he acquired while working full time in
group 34 by transfernng to the mutilations pnde
team for 2-1/2 years The Union argues that this
interpretation, which is grounded on its determina
tion that Nevins' move to the pnde team was a
transfer, represents the understanding of the parties
to the contract as applied by them in the past to
other employees returning to their departments
after mutilations pride team assignments Thus, the
Union claims that the return of Nevins to the
bottom of the seniority list in his old department -
department 25- accorded with past practice under
the contract and therefore, the judge erred in find-
ing that the Union acted unlawfully
9 Nevills with the Union s help filed three grievances with the Em
ployer concerning his placement in work group 33 The Employer denied
all three grievances Two of the grievances were later resolved
10 There were three political factions Involved in this election-Blue
Caucus Red Caucus and Independents Nevins a member of the Blue
Caucus ran unsuccessfully for a zone committeeman position A member
of the independent faction won this position The judge found that Ne
vills politics had nothing to do with his placement in group 33 There
are no exceptions to this finding
" It is undisputed that these two provisions are the relevant contract
provisions in this case Par 62 states
When an employee is transferred from one occupational group to an
other for any reason there shall be no loss of semonty However in
cases of transfers not exceeding thirty (30) days an employee will
retain his seniority in the occupational group from which he was
transferred and not in the new occupational group unless a longer
period is specified for any plant or particular occupational group or
groups wntten by the local agreement
The judge found that the Union's interpretation
of the two pertinent contract provisions essentially
penalized Nevins for transferring to the mutilations
pride team and that the Union gave no real reason
for its interpretation of the national agreement and
the local memorandum Thus, the judge viewed the
Union's actions as arbitrary and found that it
breached its duty of fair representation 12 The
judge also rejected the Union's argument concern
ing its past practice by stating that it is no defense
that others have suffered from the same arbitrary
conduct 13
It has long been established that a union, as the
employees' bargaining representative, has a wide
range of discretion in serving the unit it repre
sents 14 As the judge found, the Union did not
have to be correct in its assessment of where to
place Nevins, however, it must have exercised its
discretion in good faith and with honesty of pur
pose 15 A breach of its statutory duty of fair repre-
sentation occurs when a union's conduct towards a
unit member is arbitrary, discriminatory, or taken
in bad faith 16 Thus, our responsibility here is not
to interpret the pertinent contract provisions and
determine whether the Union s interpretation of the
national agreement and the local memorandum of
agreement was correct Rather, our responsibility is
to determine whether the Union made a reasonable
interpretation of the two provisions or whether it
acted in an arbitrary manner We find, on this
record, that the General Counsel has failed to
show that the Union violated its duty of fair repre
sentation in interpreting the contract and in apply
mg it to Nevins' situation
We disagree first with the judge's finding that
the Union s interpretation and application of the
relevant contract provisions was outrageously
wrong and manifestly unreasonable because it
penalizes Nevins for transfernng to the mutilations
pnde team Unlike the judge, we find it immaterial
to our determination, absent evidence of discrimi-
natory intent, that Nevins was adversely affected
12 The judge also found that the Union was not seeking to protect any
legitimate Interest by placing Nevins in group 33 He noted that no one
complained that Nevins remained on the mutilations pride team for 2 1/2
years that the Union was not placed in a stronger position because of its
actions and that no legitimate interest would have been left unprotected
if it had not acted Thus the judge concluded that the Union s actions
were nothing more than Johnson exercising his newly found power of a
district committeeman
13 Torkey Graham a district committeeman testified that four employ
ees who had been assigned to the mutilations pride team returned to low
man in their department after their tenure with the team expired Graham
testified that this procedure is called for by the contract
" See Ford Motor Co v Huffman 345 U S 330 338 (1953) Carpenters
Local 415 (Cincinnati Fixtures) 226 NLRB 1032 1033 (1976)
"See NLRB v American Postal Workers Union 618 F 2d 1249 1255
(8th Or 1980)
10 See Vaca v Sipes 386 U S 171 190 (1967)
GENERAL MOTORS CORP 33
by the Union's interpretation As for that interpre-
tation, neither paragraph 62 of the national agree-
ment nor the local memorandum of agreement ad-
dresses the consequences of an employee's transfer
to a mutilations pride team Paragraph 62 deals ex-
plicitly with employee transfers between occupa-
tional groups and the record indicates that each
mutilations pride team has been considered a part
of the department where its functions are per-
formed rather than as a separate occupational
group 17 In any event, paragraph 62 makes no
mention whatever of mutilations pride teams It is,
therefore, unclear from reading paragraph 62 what
happens to the seniority of employees who are as-
signed to those teams The local memorandum of
agreement, however, does address assignments to
the mutilations pride team It states that such an as-
signment is a temporary assignment for a period of
1 year It further states that selection for the team
will be by seniority, but it does not address the em-
ployee's seniority when he returns to his old group
Thus, as in the case of paragraph 62, the local
memorandum of agreement does not make clear
what effect an employee's assignment to the mutila-
tions pride team has on his seniority, whether the
assignment is for 1 year or more In this regard,
even assuming, as the General Counsel argues, that
an employee maintains his seniority in his old work
group while working for the mutilations pride team
on temporary assignment for the stated term of 1
year, the local memorandum of agreement provides
no clue concerning the status of an employee's se-
niority if the assignment to a mutilations pride team
lasts for more than 1 year Accordingly, we find
that neither paragraph 62 of the national agreement
nor the local memorandum of agreement are so
clear and unambiguous that they cannot be inter-
preted as the Union interpreted them in this case 18
We also find, contrary to the judge, that the
Union's actions were motivated by legitimate union
interests As the Union argues in its exceptions, it is
certainly concerned with the other employees in
work group 34, particularly J C Johnson, the em-
ployee who would have been displaced from that
group if Nevins had been permitted to return to
group 34 It is also concerned with being consistent
in its interpretation of the national and local agree-
ments In the past, according to the testimony of
Torkey Graham, ex-pride team employees have
been returned to the bottom of the seniority lists in
their respective departments The treatment of
12 As evidenced by the treatment of NeviIls while he was on the muti-
lations pride team See, for example, fn 7, supra
12 In view of this finding, we do not adopt the judge s finding that
Johnson s actions were nothing more than a raw exercise of his newly
acquired power
those employees at the least reflects an application
of the provisions in question that is consistent with
the Union's current interpretation Thus, the Union
appears to have acted with the entire unit's inter-
ests in mind by treating Nevins the same way it
treated the other employees who returned to their
original departments after leaving the mutilations
pride team 19
Accordingly, based On our findings that the na-
tional and local agreements are subject to more
than one reasonable interpretation and that the
Union was motivated by legitimate interests, we
find that the General Counsel has failed to establish
that the Union violated Section 8(b)(1)(A) and (2)
of the Act by causing the Employer to assign Ne-
vins to group 33 and to grant him less overtime
ORDER
The complaint is dismissed
"We agree with the judge that a charged party cannot successfully
defend an unfair labor practice allegation by relying on the failure of the
charging party or others to contest similar types of past practices See,
e g , Ciba-Geigy Pharmaceuticals, 264 NLRB 1013, 1017 (1982), enfd 722
F 2d 1120 (3d Or 1983) However, we are not dealing with previously
committed unfair labor practices in this case As we have stated, the rele-
vant contract provisions are ambiguous and therefore subject to more
than one interpretation Therefore, that the Union s past interpretations
were not contested, and are consistent with its interpretion in Nevins'
case, at least tends to support its contention that its actions herein were
not arbitrary
Mary .1 Tobey, Esq , for the General Counsel
Alice M Osburn, Esq , of Detroit, Michigan, for Re-
spondent Employer
Sheldon Weinhaus, Esq , of St Louis, Missouri, for Re-
spondent Union
DECISION
STATEMENT OF THE CASE
DAVID L EVANS, Administrative Law Judge This
matter was tned before me on March 21-23, and April
25-26, 1988, on charges filed under the National Labor
Relations Act (the Act), by Ronald Sutton, Robert L
Stevenson, 0 Richard Taylor, and Lemar Nevins, all in-
dividuals, against General Motors Corporation (the Em-
ployer) and/or Local 2250, United Automobile, Aero-
space and Agricultural Implement Workers of America
(the Union) 1 The Regional Director for Region 14, on
behalf of the General Counsel, issued the original com-
plaint on September 24, 1987 2 The Employer and the
Union (collectively called the Respondents) filed answers
admitting jurisdiction but denying the commission of any
unfair labor practices on their respective parts The Gen-
' The dates of the charges are as follows Stevenson's Case 14-CB-
6725, Aug 12, 1987, Sutton's Case 14-CB-6735, Aug 18, 1987, Sutton s
Case 14-CA-19252, Nov 20, 1987, Taylor s Cases 14-CA-19276 and 14-
CB-6807, Dec 16, 1988, Nevills Case 14-CB-6816, Jan 6, 1988 All alle-
gations based on Taylor s charge were withdrawn at the hearing
2 All dates are in 1987 unless otherwise specified
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eral Counsel and the Respondents have filed briefs that
have been carefully considered On the record testimony
and the exhibits and the arguments made at the hearing
and in the briefs I make the following
FINDINGS OF FACT
I JURISDICTION
The Employer is and has been at all times material, a
corporation duly authorized to do business under the
laws of Missouri At all times material the Employer has
maintained an office and place of business in Wentzville,
Missouri where it is engaged in the business of manufac
tunng automobiles During the 12 month period ending
September 30 the Employer in the course and conduct
of said business operations, sold and shipped from its
Wentzville facilities products, goods, and materials
valued in excess of $50 000 directly to purchasers located
at points outside Missouri Therefore the Employer is
now and has been at all times material, an employer en
gaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges the parties stipulate and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Facts
1 Removals from union office of Sutton Stevenson
Smith Pogue, Detters Travis, and Ramsey
a Individuals and positions involved
The Employer s Wentzville Missouri assembly center
(plant) is part of its Buick Oldsmobile Cadillac group
The plant began production in 1983 As of the heanng
date there was one production shift operating at the
plant with approximately 3000 hourly rated employees
and there were approximately 5200 such employees in
May 1987 when two shifts were operating and when
the seminal event herein occurred an election of union
officers
The parties stipulated that the following individuals
occupied the positions set opposite their respective
names and that they have been at all times material su
pervisors of the Employer within the meaning of Section
2(11) of the Act
Steve Eastvold

General Supervisor
Industrial Relations
Robert Moran Production Manager
Charles Hagan Supervisor, Process
Assurance
Charles Edinger Supervisor Process
Assurance
Earl Schack

Training Director
Norman Suzuki Shift Manager
Ron Lombardo Manager Process Assurance
Dave Beane Manager Trim Department
Don Stewart Manager Chassis
Department
Production is divided into numbered departments such
as department 25 chassis, and department 71 process as
surance
The first level of supervision is the advisor who has
1 to 3 teams consisting of 18 to 20 employees each re
porting to him The advisors report to shift managers
who in turn report to department superintendents who
in turn report to either the first or second shift produc
tion managers who in turn report to the plant manager
Each team under the advisors has a team coordinator
who is designated to be such by the members of the
team The team coordinator is a relief person for all
members of the team runs errands for the team, and con
ducts team meetings Team meetings are conducted in
team centers, which are small buildings within the facto
ry each placed according to the area supervised by the
advisors
The production and maintenance employees at the
Wentzville plant are represented by the Union In the
May 1987 election, Jerry Gorski was elected local presi
dent Also elected was a financial secretary and an exec
utive board The in plant bargaining committee elected
at the same time consisted of Joe Henry chairman and
six zone committeemen, including Jerry Portell Dave
Huelslcamp, and Don Wilburn Plant zones are divided
into 24 districts District committeemen were elected, in
ducting Torkey Graham and Pat Johnson for plant dis
tncts 6 and 9, respectively
The chairman of the bargaining committee is the chief
in plant representative of the Union zone and district
committeemen report to him as they handle grievance
and other collective bargaining issues on behalf of the
Union
With this large number of employees and large
number of elective offices, a number of political factions
have of course, developed Shortly after the 1983 open
mg of the Wentzville plant two main political factions
appeared the Red Caucus and the Blue Caucus The
color designations of the names of the factions to a chs
puted degree affected the dress of the members of each
caucus some, but not all members of the Red Caucus
wore red T shirts and jackets some Blue Caucus mem
bers dressed in blue
The initial union office holders were appointed by the
International staff Red Caucus members were appointed
In 1984 the first union election was held at the plant
Red Caucus members won all positions In 1985 Rod
Galey a Red Caucus member won a special election for
the office of chairman of the bargaining committee
The Red Caucus fielded a slate of candidates for the
plant s second general union election that was conducted
on May 5-6 1987 Galey was on the slate as candidate
for chairman The Red Caucus slate was defeated not by
the Blue Caucus but by a group of Independents,
which according to this record, did not run as a slate
It is the conduct of Henry that forms the main basis
for the complaint
Henry took office as bargaining committee chairman
on July 1 Henry immediately proceeded to replace the
GENERAL MOTORS CORP 35
following individuals from the positions set opposite
their respective names
Ronald Sutton Placement Committee
Coordinator
Lyle Smith

Quality of Work Life
Coordinator
Robert L Stevenson Quality Pride Team
Member
Lonnie Pogue Quality Pride Team
Member
Courtney Travis Quality Pride Team
Member
Pat Ramsey Quality Pride Team
Member
Joe Detters Quality Pride Team
Member
All these individuals were Red Caucus members, had
been appointed by prior Red Caucus union administra-
tions, and had been supporters of the defeated Red
Caucus slate in the May election (There is no evidence
peculiar to the replacement of Detters who did not testi-
fy, however, it is undisputed that Henry replaced all
members of quality pride team, including Detters Other
quality pride team members who were replaced by
Henry after the 1987 election were Taylor, on whose
behalf the General Counsel withdrew all allegations, and
Lisa Byrd and Nancy Untnecker, on whose behalf no
charges were filed )
The positions held by the quality of work life commit-
tee coordinator and the quality pride team members are
described in wntten contracts, however, the position of
placement committee coordinator is not The contents of
the respective positions in issue are as follows
Placement Committee Coordinator The position of
placement committee coordinator is not described in any
written instrument It appears to have evolved from pro-
cedures negotiated at the Employer's St Louis plant and
gradually engrafted on the Wentzville plant as employees
transferred to Wentzville from St Louis after the Wentz-
ville facility was established The Union has the author-
ity to appoint the placement committee coordinator The
job of the placement committee coordinator is to find a
place in the plant for a medically restricted employee to
work when supervisors and the district and zone com-
mitteemen cannot agree on a placement The procedure
first requires that the employee have a written notice of
medical restriction issued by the plant's medical doctor
The employee is then to take the notice to his advisor
who attempts to place the employee back on his own job
or another suitable job within the advisor's work group
If the advisor is unsuccessful, the district committeeman
is called in, and he and the advisor attempt to place the
employee within the advisor's group, if unsuccessful, the
advisor and district committeeman and zone committee-
man attempt to place the employee within the zone in
which the employee worked If that is unsuccessful, the
placement committee coordinator is called in After re-
viewing what has preceded, the placement committee
coordinator attempts to find a position anywhere in the
plant that is suitable The placement committee coordina-
tor cannot place an employee in a position held by a
senior employee, and all placements are to be done
through consultation with management The placement
committee coordinator has his own office in the plant,
and he does no production work
Quality of Work Life Coordinator The quality of work
life coordinator is the chief union representative on the
quality of work life committee The committee is com-
posed of two quality of work life coordinators (one on
each shift when there is a two-shift operation) and one
member of management and one employee from each de-
partment The function of the committee is to administer
certain training and educational funds and to create and
schedule recreational activities The committee has an
office in the plant, and the quality of work life coordina-
tor does no production work
Quality Pride Team Members The quality pride team
was assigned to the process assurance (inspection) de-
partment and reported to that department's advisors The
members had two primary functions, administration of
the "overnight drive" program and the awarding of cer-
tificates for quality work The overnight drive program
consisted of permitting production employees to take
cars home in the evenings, they were to drive them for
up to 100 miles, and report on performance or defects
when the cars were returned the next day The certifi-
cates for quality work came with no monetary award
The pride team members did no production work Under
a written agreement between the parties, the Union had
the unilateral right to choose quality pride team members
as long as the quality pride team existed, but the Em-
ployer maintained the right to abolish the quality pride
team unilaterally The quality pride team was dissolved
at model change, August and September 1987, and an-
other entity took its place, as discussed below
b Evidence of the preelection performance by union-
appointed incumbents
The above is a description of what the placement com-
mittee coordinator, the quality of work life coordinator,
and the quality pride team members were supposed to
have done under the practices and agreements negotiated
between the Respondents At issue in this case is how
things were done, or how things were perceived by the
parties to have been done, before Henry's displacements
of Sutton, Smith, Stevenson, Pogue, Detters, Travis, and
Ramsey
'Sutton testified that he was appointed placement com-
mittee coordinator in February 1984, by then-chairman
and Red Caucus member, Jim Wells Sutton was an In-
dependent at the time, but joined the Red Caucus within
a week Sutton testified that between his appointment
and removal he made "at least 506" placements accord-
ing to the procedures described above and that he did so
with essentially no complaints from management or the
employees
Eastvold testified that Sutton was extremely abrasive
in his functioning as placement committee coordinator
and he used profanity for which he was written up East-
vold testified that on one occasion
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ron had commented to me that it was his posi
tion that whenever he was called in by the depart
ment to make a placement of a medically restricted
employee that he had sole authority to place that
person wherever he saw fit without any objection
or overruling by any management person 3
Smith, a Red Caucus member, testified that in October
1984 he was appointed to the position of quality of work
life coordinator by then Union Chairman Jim Wells and
then Union President Fred Singleton who were both
Red Caucus members Smith testified that he joined the
Red Caucus late in 84 Smith testified that he and all
other members of the quality of work life committee ac
lively and effectively instituted and administered educa
tional and recreational programs, and he gave several ex
amples
Schack testified that former Union Chairman Galey
openly opposed jomtness Galey said so many times
and the quality of work life committee, headed by Smith
opposed almost all educational and joint recreational
programs that management wanted to be sponsored
There is no evidence that any agent of the Employer ex
pressly asked Henry or Gorski to replace Smith
Pogue Stevenson Travis and Ramsey testified that
they had been members of the quality pride team for ex
tensive periods of time when the 1987 campaign and
election occurred that they were members of the Red
Caucus when they were appointed, or became members
shortly thereafter and that they supported the Red
Caucus in the election and campaigned openly and ac
tively for that slate in the 1987 union election All four
testified that they efficiently operated the awards and/or
overnight drive programs that they received favorable
comments about their conduct of those programs and
that they received no negative criticisms from manage
ment
Hagan and Lombardo testified that the problems with
the quality pride team had been multitudinous and multi
fanous
On April 30 1986 Lombardo drafted a memorandum
to Eastvold entitled Inappropriate Behavior and Inef
fectiveness of Quality Pride Teams The memorandum
stated
It is management s opinion that the appointed
members of the Quality Pride Teams on both shifts
are not assisting the Center in its efforts to attain
world class quality Those persons involved in ex
pressing this management opinion include Their im
mediate advisors C Edinger and C Hagan process
assurance department shift manager B Bellomo and
Manager R Lombardo director of quality engi
3 Eastvold testified that this is how Sutton conducted himself as place
ment committee coordinator and Eastvold received many complaints
about this from lower management Eastvold acknowledged that manage
ment acquiesced in Sutton s conduct and essentially turned the matter of
placements over to Sutton although management really believed that
management could raise an objection a well founded one and have that
placement turned around Eastvold testified although he did ask Henry
to replace all members of the quality pnde team he did not request that
Henry replace Sutton after the 1987 election because Henry had already
told him that he planned to replace Sutton
neenng B Brockhaus and plant superintendents J
Langwell and B Bowers Furthermore, it is these
managers opinion that any subsequent appointees
would not perform any differently given the current
position taken by the President and Chairman of
Local 2250 [Wells and Galey respectively]
The conclusions expressed by the above manag
ers are based on the following incidents of mdivid
ual team members inappropriate behavior and task
inefficiencies which management has been unable to
correct through all means available short of disciph
nary action Additionally it is the same managers
opinion that the character of Quality Pride Team
appointees should preclude the need for disciplinary
action because of the negative connotation such
action carries (It would seem that the phrases dis
ciplinary action and Quality Pride Team
Member should not be used in the same sentence )
As a matter of background information, the night
shift team members were not performing their job
duties to the satisfaction of their advisor Ongoing
efforts by the advisor to direct guide train in
struct and coach the team to accomplish the tasks
listed in the Quality Pride Team outline of job func
lions were unsuccessful (See advisor s notes pages
1-4, 13, 23 24 and 35 for details) This problem
continued to worsen for approximately six months
(from August 1985 through January, 1986) and in
volved two advisors who shared the same opinion
after each had attempted to make the night shift
team a productive operation As a result of this
problem a meeting was held on February 19, 1986,
with both Quality Pride Teams, the shop Chairman
the teams advisors and upper level managers in at
tendance The objective of this meeting was to dis
cuss and solicit resolution for the problem Specifi
cally the problem involved poor attendance insuf
ficient communications and source of [direct] con
filet (advisors vs U A W) Though no resolution
was reached at this meeting it was proposed that an
off site meeting be held as soon as possible to re
solve the problems This off site was subsequently
held on March 24th and 25th
Prior to the off site however it was discovered
through observations by plant security officers that
two members of the night shift team were taking
overnight test cars off of the premises without per
mission and disappearing for several hours at a time
This further complicated the issues at hand by vio
lating management s trust (See advisor s notes
pages 17-22 25-27 and plant security reports )
Since the time of the off site meeting there has
been no significant improvement in the night shift
team s performance effectiveness or conduct as
demonstrated by their
Absence at all quality council meetings Absence
at 33 percent of daily audit meetings
Failure to met [sic] daily with their advisor
Absences and lates for work (15 absences and 8
lates)
Failure to follow their advisor s instructions
GENERAL MOTORS CORP 37
Lack of visual/measurable accomplishments
Failure to complete assignments
Leaving the plant without advisor's permission
Specific dates, times, actions, and so on, supporting
the above statements are detailed in advisor's notes,
pages 7-10, 16, 24-34, 36, and 37
In addition to the problems being experienced
with the behavior and effectiveness of the night
shift team, the day shift has demonstrated through
recent actions that they do not intend to follow the
instructions of management Instead they have
Gotten involved in issues which are the re-
sponsibilities of others
Attempted to bring problems directly to the at-
tention of the plant manager instead of the appro-
priate advisor/manager level
Willfully and flagrantly refused to obey direct
orders given to them by management
See attachment #3 for detailed statements sup-
porting these charges
It can be concluded from this documentation that
the best interests of quality are not and cannot be
served while management is expending negative en-
ergies on conflict situations with Quality Pride
Team members Furthermore, statements made to
managers by the President of the Union that the
members of the Quality Pride Teams work for him
and not for management, and statements made to
managers by the Chairman of the Shop Committee
that these persons' loyalties are with him and the
Union and not with management indicate that cor-
rection of behavior and effectiveness problems of
Quality Pride Team members cannot take place
under current conditions without expending more
negative energies
In view of the above, it is our recommendation
that the teams involved be disbanded and returned
to their base departments for assignments to oper-
ations
The reference to attachments is a reference to documen-
tation by advisors Hagan and Ettinger This is a 51-page
chronicle compiled by the supervisors about the conduct
of the second-shift quality pride team members Lisa
Byrd, Detters, Travis, and Nancy Untnecker The con-
duct made the subject of. individual memoranda include
absenteeism, failure to follow instructions, abuses of the
law, and the Employer's policy against disconnecting
odometer fuses of cars being taken out on the overnight
di ive program, and taking cars out of the plant without
permission The reference to the union president's
remark that the pride team members worked for him
was, according to the testimony of Lombardo, actually a
reference to a remark by Chairman Galey that the pride
team members worked for him Galey was not called to
rebut this testimony
Lombardo credibly testified that no action was taken
on his recommendation because Galey had told manage-
ment that the quality pride team was the closest thing to
"jointness" that management was going to get No action
was taken on Lombardo's recommendation until, in 1987,
Eastvold asked Henry to replace the entire pride team
Eastvold testified that he did so because the pride team
members had absorbed Galey's hostility to any concept
of "jointness," and that he told Henry after the 1987
election to replace the pride team members He testified
that he did so because "we had to do something with
the Pride Team That, you know, based on the problems
we were having that we needed to replace those
people" Eastvold and Lombardo credibly described
problems such as continued problems with the overnight
drive program and failure of the quality pride team to
make awards when awards were due
Henry testified that after the 1987 election he and the
bargaining committee met with management in negotia-
tions Industrial Relations Manager Tom Pilkington and
Production Manager Bob Moran represented the Em-
ployer Henry testified that Moran expressed concerns
about the reputation of the pride team and the lack of
results the pride team had achieved Moran further told
Henry that he wanted "to dissolve" the pride team
Henry testified that he agreed that the pride team had
achieved nothing, and it functioned only as a "political
tool" Henry did not say for whom the pride team had
functioned as a "political tool," nor was he asked
c Testimony about statements to alleged
discrimmatees
Sutton testified that he was in his placement committee
coordinator's office on August 4 when he was called on
the telephone by Henry and
He said, "this is Joe Henry " and he said, "Ron,
I'm going to be trying someone else out on your job
here in the near future" And I said, "why, am I not
doing my job?" And he says, "oh, it's not that" He
said, "I'm going to have a hard time finding some-
body else on your job, to do your job, but," he said,
"you know, it's politics," and he said, "you didn't
support me in the last election A lot of people that
did I promised [sic] jobs to and that's one—your's is
one of them" I said, "in other words, you are re-
moving me" He said, "yes "4
Henry testified that there were two conversations in-
volving Sutton Henry testified that in a conversation
before August 4 Sutton told him that
he was a good union man, that he would like for
me to retain him on his job, and I told [him that]
there was going to be some changes, we had to do
things different, we was going to lose our plant,
was going to lose our jobs, and I didn't think he
would fit into my program
In response to leading questions about the August 4
conversation, Henry denied that he told Sutton that
Sutton had been doing a good job, he denied discussing
Sutton's union politics, he denied that he told Sutton that
he was being removed for causes that were political or
4 Punctuation added to this and subsequent long quotes of trial testimo-
ny
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
because Sutton had supported others in the May election,
and Henry denied that he told Sutton that he was select-
ing someone else because they had supported Henry in
the election 5
Sutton testified that after his removal from the position
of placement committee coordinator, he was sent back to
his former production job in the body shop Sutton fur-
ther testified that in the weeks following his return to
production he had exchanges with three different super-
visors about the loss of his position The supervisors
were Production Manager Bob Moran, Trim Depart-
ment Manager Dave Beane, and Chassis Department
Manager Don Stewart According to Sutton, each super-
visor expressed sympathy with him and added, "that's
politics" Beane denied that he had been told by any
member of the current shop committee that Sutton was
replaced because Sutton did not support them in the
election, however, Beane did not deny telling Sutton that
his replacement was because of "politics" Moran and
Stewart were not called to testify
Smith testified that after the election he approached
(presidential winner) Gorski and asked what Gorski was
going to do about the two quality of work life coordina-
tor positions held by himself (day shift) and Josh
McClendon (evening shift) According to Smith, Gorski
replied that he did not know because Smith was a fnend
of Fred Singleton (Red Caucus member and former
chairman of the bargaining committee) and other mem-
bers of the Red Caucus Gorski asked Smith if Smith
could work with Al Stern (who was ultimately appoint-
ed quality of work life coordinator in Smith's place), and
Smith replied that he could Gorski told Smith that he
thought he was going to "keep" Smith, but he had to
think about it Smith asked what was going to happen to
McClendon, and Gorski replied
Josh came to me prior to the election and told me
he wouldn't go out on the floor or "cut" on me or
try to campaign against me, and nght now we are
going to keep him
Smith further testified that on July 29, after he returned
from model change, he met Henry in the quality of work
life office in the plant Henry was accompanied by Dave
Huelskamp, one of the Independents who won the elec-
tion as a zone committeeman According to Smith
And Joe says, "do you know you've been re-
moved?" I said, "well, what's the reason? Is it be-
cause I've not done my job?" And he said, "no"
He said, "we've got a new program and you Just
won't fit in" And I said, "I don't know why I
couldn't fit into a new program because I've been
doing this job for three years" And he said,
you're Just not going to fit in with the program"
I said, "Joe, it's got to be for political reasons, it's
not because I haven't done my job" He said, "well,
politics do play a big part in it" And Dave Huels-
5 During this series of denials, Sutton (who assisted the General Coun-
sel at trial) engaged in an outburst, the words of which are not reflected
by the transcript I wish to assure the parties that the outburst has, in no
way, affected my credibility resolutions herein
kamp stepped in and said, "Joe, don't tell him its for
political reasons or he'll go out and hire a two-bit
lawyer and sue you" And then Joe said, "well, Al
Stern and Josh McClendon is going to be the Qual-
ity of Work Life Coordinator[s], and, if you have
anything left in your desk, you need to go in and
clean it out because Al's going to be wanting to use
it
At that, Smith did go and clean out his desk Thereaf-
ter, he was returned to production work such as that he
had done before his tenure as quality of work life coordi-
nator
Smith testified that on two occasions, the first about a
month before the hearing and the second during the
week before the hearing, Gorski told him that "he wasn't
going to remove me from my job, that he did want to
remove a couple [of] people from different jobs, but my
job was not one of them that he wanted to remove"
Henry denied ever telling Smith that his removal from
the position of quality of work life coordinator was polit-
ical Henry testified that he did have one conversation
with Smith about Smith's tenure as quality of work life
coordinator, but it was shortly after the May election,
not after model change Henry testified
and Lyle Smith was telling me what a good person
he was and he'd like to remain on his job And I
asked him, "well, how can you say that?" [I said],
you haven't done anything for the last four years on
that job [I added that] things are going to work dif-
ferent, that the whole system is going to be restruc-
tured and whoever does this job is going to be in-
volved in some of these Joint programs
He said he would not get involved in the Joint ac-
tivities at all, he didn't believe in it
Neither Gorski nor Huelskamp testified
Pogue testified that after the May election he, together
with Stevenson, congratulated Henry on his win, and
Henry told them that he had understood their opposition
to his candidacy as Henry was the one who had split
from the Red Caucus Pogue further testified that in mid-
June he and Stevenson approached Henry and asked him
about their future as members of the quality pride team
According to Pogue, "he stated that he had no problem
with Robert and I and that he did have a problem with
some of the people, but that we were still members of
the pride team, we would not be taken off"
Pogue testified that during the model-change layoff, he
received a letter from the Employer telling him that he
was no longer a member of the quality pride team and
instructing him to report to his former production job at
the end of the layoff When Pogue returned to work, he
and Stevenson met with Henry and Pat Johnson Ac-
cording to Pogue
[Henry] told us that we didn't fit in He had decid-
ed to remove us from the pride team, that we didn't
fit into the program, that there may be openings
later, and we may get an appointment later, that he
GENERAL MOTORS CORP 39
had changed his mind and we weren't—he was
going to change the pnde team and that we didn't
fit into the program
Stevenson testified consistently with Pogue about the ex-
changes with Henry
Pogue got sent back to his former production job Ste-
venson was under a medical restriction The Employer
could find no other job, which would fit within that
medical restriction, and Stevenson was laid off The
General Counsel seeks backpay and reinstatement for
Stevenson as a result (None of the other alleged discn-
minatees who are discussed in this section suffered a
monetary loss as a result of their displacements )
Stevenson testified that on his last day at work, while
he was waiting in an outer office, he met Gorski Ac-
cording to Stevenson, Gorski told him that Gorski had
attempted to persuade Henry to keep Stevenson and
Pogue on the quality pnde team Stevenson made no re-
sponse Because Gorski did not testify, this testimony is
undemed
Henry acknowledged that he also met with Pogue and
Stevenson before and after model change Henry testified
about the first conversation
Well, first they approached me about that they had
heard that they was going to restructure the pride
team and do away with the overnight, and they told
me I couldn't let that happen, that that was a major
part of their function And I told them it would be,
that management was talking about dissolving the
pride team and I was going to try to save, salvage
as much of it as I could, if possible It looked like
they was going to dissolve the whole project unless
we could make some changes They didn't agree
with that, they said we couldn't let that happen,
they wanted to keep it like it was
About the second conversation, Henry testified that
Pogue and Stevenson approached him at a time when
they were very upset about being taken off the quality
pride team Henry testified, "I told them some changes
were taking place, the pnde team was going to be re-
structured if we could salvage the pride team" Henry
denied that he told either Stevenson or Pogue that they
would not be taken off the quality pride team, and he
denied that he told either one that he had "no problem"
with them as quality pnde team members or that he had
changed his mind about keeping them as quality pride
team members ,
Travis testified that after the May election he ap-
proached Henry at the union hall and asked
"I didn't support you, but I didn't campaign against
you during the elections, is there any possibility of
me being taken off the pride team9 And he [Henry]
told me [that] he didn't see no reason why I would
be taken off the pride team
Travis further testified that he also got a letter from the
Employer telling him that he Was no longer a member of
the quality pnde team The letter further instructed
Travis to report to his old production job after model
change, which he did
Henry testified that when Travis approached him at
the union hall, "I told him the same thing—that the pride
team was going to be restructured if we could save it
They was trying to dissolve [the quality pride team ]"
Henry did not specifically deny Travis' testimony that he
told Travis that he saw no reason to remove Travis from
the quality pride team
Ramsey testified that during model change she also re-
ceived a letter from the Employer stating that she was
no longer on the pride team and that she should report
back to her old production job On return, Ramsey
sought out Henry Ramsey testified
I asked Joe if he had anything that he wanted to
say to me, and he says, "what do you want to
hear9" And I said, "if you are removing me, I want
you to tell me to my face Instead of letting manage-
ment do your job" And he says, "okay, you are re-
moved" And I asked Joe" why am I being re-
moved9 Is it because I'm not doing a good
job9" And he says, "oh, no, that's not it at all" He
says, "there's been a whole new change and I feel
like we need all new people Of
I told Joe how I felt, that I was tore apart due to
the Red Caucus splitting and that I was sorry it had
to happen that way But I told him also that just be-
cause I didn't vote for him in the election was no
sign I wouldn't [have] worked with him He
said [that] he wished he would have talked to me
two hours earlier
Ramsey testified that she returned to her former produc-
tion job and stayed there until she was laid off in No-
vember when the second shift was eliminated
Henry testified
I just explained to [Ramsey] that the kind of con-
duct and the reputation we had was about to close
our plant down and it had to be restructured and
management was going to dissolve the pnde team
simply because of no results and the reputation we
built And there would be a restructure of the Pride
Team, if we could salvage it
There was no testimony about what Henry told the
other quality pride team members who were replaced or,
for that matter, what he told any other employees he re-
placed as he made appointments after winning the May
1987 election
d Appointments made after removals
Henry testified that after the election he posted notices
telling employees who wanted to be appointed to union
positions to submit a resume to him This testimony is
not rebutted, it is further unrebutted that none of the al-
leged discrimmatees submitted any such resume
Henry was asked on direct examination to name ap-
pointees who were in political opposition groups, or who
had opposed him, in the election Henry first named Al
Stern as one who had opposed him in the election for
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the office of chairman of the bargaining committee 6 and
one whom he had given an appointment, Henry named
Stern to one of the positions of quality of work life coor-
dinator Henry then named the following employees as
Red Caucus members to whom he gave appointments
1 Josh McClendon was appointed to another
quality of work life coordinator position
2 Lonnie Little was appointed to the fair prac-
tices committee
3 Adrian Fuller, described by Henry as an
"avid" member of the Red Caucus, was retained as
a remedial teacher
4 Pearl Spurgeon was retained as a remedial
teacher
5 Jim Booth was either appointed to the position
of high tech coordinator for the skilled trades, or he
was retained in that position, it is not clear from
Henry's testimony
6 Tony Diomedes ("a very strong supporter of
the Red Caucus") was appointed as coordinator of a
team managing the transfer of employees from the
Employer's St Louis plant to the Wentzville center
7 Jerry Vandergnff ("a strong red supporter")
was appointed to the union labor committee
8 Richard Sylvester was retained as chairman of
the union bylaws committee
9 Robin Crouch was appointed to, or remained
as, chairman of the Local's recreation committee
10 Reggie Valentine ("a strong supporter of the
Red Caucus") was retained as the second-shift sub-
stance abuse committeeman
11 Lee Asher was retained "on a job that is not
authorized, the ergonomics, but it is full time and he
was retained full time"
12 John Norman was retained as the skilled
trades representative
13 Gary Gruhala ("a strong supporter of the
Red Caucus") was retained on the community serv-
ices committee
14 Larry Williams was retained on the communi-
ty services committee
15 Percy Holland was appointed to the sub-
stance abuse committee
Before Henry testified, Sutton (on cross-examination)
denied that Spurgeon, Diomedes, Asher, and Gruhala
were Red Caucus members before the election I firmly
believe that Henry knew the political background of his
appointees, and I do not believe he lied on the point
Moreover, this issue was one that is easily susceptible to
proof, and the General Counsel, who has the burden,
produced none in rebuttal I credit Henry on this point
Except for the quality of work life coordinator, none
of these positions is further described in the record Nor
is it disclosed how many appointments were made, in
total, by Henry
6 Henry s testimony that Stern had opposed him for office of chairman
was not disputed, however, it must be noted that Rod Galey, not Stern,
was the Red Caucus candidate for chairman What politics, if any, Stern
had is not disclosed by the record
Sutton was replaced as first-shift placement coordina-
tor by Ted Tejeck, who had supported Henry 7
The quality pride team was replaced in a change nego-
tiated after 1987 model change Instead of teams report-
ing to the process assurance department supervisors, em-
ployees in each department were to be jointly appointed
to serve on a newly created "Quality Assistance Team"
Although the quality awards were to continue, the over-
night drive program was discontinued as a joint pro-
gram Henry testified that he made the appointments to
the quality assistance team, but he could not name any
appointees who had opposed him in the election, he testi-
fied that it had not mattered to him who the appointees
had supported during the election Alleged discnmma-
tees Ramsey and Pogue testified that they knew that
three of the appointees had supported Henry The record
does not disclose how many employees were members of
the quality assistance team, but with over 20 depart-
ments, there must have been at least that many members,
double that unknown figure if the plant were operating
two shifts There had been six members of the quality
pride team
Both management and union representatives testified
that since replacement of the quality pride team, Sutton,
and Smith, cooperation between the parties and quality
of production at the Wentzville plant has dramatically
improved and that, whereas the plant had been threat-
ened by high General Motors executives with closure be-
cause of prior (Red Caucus under Galey) resistance to
"jointness," the plant has been awarded the assignment
of building a new luxury automobile that has not yet ap-
peared on the market There was no rebuttal of this testi-
mony
e Credibility resolutions
I do not need to analyze every example that each side
brought out to demonstrate that things went well, or not
well, under the Galey administration It is quite clear to
me, while there may have been some instances of lauda-
ble cooperation under the Galey administration, the
dominant theme of that administration was noncooperati-
veness
I do believe the General Counsel's witnesses' testimo-
ny that Henry freely invoked - the shibboleth of "poli-
tics," or referred to political considerations, as he in-
formed many of the alleged discnminatees that they
were being removed from union-appointed positions The
Union has attempted to show that Henry made his re-
movals and appointments completely divorced from any
internal political considerations At the same time, the
Union Introduced the testimony of James B Wells,
former union bargaining committee chamman and cur-
rent International staff representative, who testified that
appointments were made on the following basis
as Chairman, I wanted people on those jobs that
would carry out my policies directly because it di-
rectly affected me politically
7 Sutton testified that Henry also removed the second-shift placement
coordinator, William Booker, and replaced him with a Henry supporter,
Dennis Omick No allegations are made on behalf of Booker
GENERAL MOTORS CORP 41
With this plant political history, it is not believable that
Henry abjured all political considerations in making his
appointments To the contrary, Henry seemed genuinely
concerned with the direction the plant was taking under
the confrontational, noncooperative, counterproductive
union attitude that had existed under the Galey/Red
Caucus administration, and it was this attitude that
Henry (as well as management) wished to change
It is clear that the conflicting attitudes among the
work force led to factionalism, when Henry's faction
succeeded in the 1987 election, he proceeded to imple-
ment the ideals of his faction, those who opposed
Galey's resistance to "jomtness " In industrial as well as
governmental arenas this process is considered, and is re-
ferred to, as "politics" The best evidence that Henry
considered his actions to be political comes from his own
testimony He testified that in the negotiations that fol-
lowed the 1987 elections, he agreed with Moran that the
quality pride team had achieved nothing and that it had
functioned only as a "political tool" Henry did not say
for whom the quality pride team had functioned as a
"political tool," but it is clear that he meant that it had
been a functionary of the faction referred to as the Red
Caucus By seeking to eliminate this "political tool"
Henry, himself, was performing a function that was po-
litical in nature, at least in part Henry necessarily recog-
nized this, and I have no doubt that he so informed the
individuals who were adversely affected by his political
actions For this reason, and the fact that all the General
Counsel's witnesses impressed me more favorably than
did Henry on this point, and the fact that neither Gorski
nor Huelskamp were called to support Henry's denial of
Smith's testimony about what Smith was told by Henry
and Gorski about Smith's potential (and actual) replace-
ment, I credit all the General Counsel's witnesses about
what they were told by Sutton and Gorski
2 Denial of overtime to Nevins
Lemar Nevins, a black man, is a member of the Blue
Caucus that, as Nevins admitted, only had about 20
active members at the time of the events in question In
the 1987 election Nevins unsuccessfully ran for the posi-
tion of zone 5 committeeman against Red Caucus
member Donald Wilburn and Independent William Col-
lins Wilburn won
Nevins has been employed by the Employer since De-
cember 2, 1967 He began working at the St Louis plant
and transferred to the Wentzville center in April 1983
At the time of the hearing Nevins was employed in de-
partment 25, chassis, work group 33, which is assembly
line labor When he first came to Wentzville, he was as-
signed to department 25's work group 34, which is light
repair Employment in work group 34 is more desirable
than employment in work group 33 in two different
ways it is comparatively nonmonotonous, and there is a
great deal of overtime because the light repair function is
oftentimes performed after the other shifts have been
completed
Nevills was the senior employee in work group 34,
having been the first hired for that department after the
Wentzville facility opened While in that department he
was the team coordinator and, as such, trained other em-
ployees, spelled other employees on the line when they
needed short breaks, and ran errands for the group
In 1985, the mutilations pride teams for various depart-
ments were established at the Wentzville facility The
job of the mutilations pride teams was to investigate
sources of defects that were discovered in the production
process In May or June 1985, Nevins requested transfer
to the second shift that had just been established The re-
quest was granted At the same time, Nevins' supervisor,
Norman Suzuki, asked Nevills to join the mutilations
pride team on the second shift, Nevills agreed
Two contractual provisions are appropriate to be
quoted here The first is a provision of the Respondents'
national agreement that provides
When an employee is transferred from one occupa-
tional group to another for any reason, there shall
be no loss of seniority However, in cases of trans-
fers not exceeding thirty (30) days an employee will
retain his seniority in the occupational group from
which he was transferred and not in the new occu-
pational group, unless a longer period is specified
for any plant or particular occupational group or
groups written by local agreement
A local memorandum of agreement dated January 26,
1985, provides
The members of the Mutilations Pride Team will be
in the number and departments specified by Man-
agement Selection will be on the basis of seniority
by department from among those utility employees
who have made application with their advisor on
forms supplied by Management and who have not
previously served in this activity It is understood
that this is a temporary assignment for a period of
one (1) year, however, no more than one member
will be replaced in any 30 day period The present
members of this team will be removed or replaced
by the above-mentioned at the rate of one every 60
days A salaried person will be assigned to direct
the activities of this group
When Nevins went to the mutilations pride team, he
filled out an application for shift transfer, but he did not
fill out a specific application for assignment to the muti-
lations pride team His "temporary assignment" to the
mutilations pride team lasted much more than a year, it
lasted until the second shift was eliminated on November
20, 1987, a period of 2-1/2 years
During the time Nevins was on the mutilations pride
team all his weekly paychecks recited that he was in de-
partment 25, work group 34, although he spent his regu-
lar shifts investigating scratches, etc, in both depart-
ments 25 and 27 Also during this period, Nevins equal-
ized overtime with the employees doing (nonassembly
line) repairs That is, after working 8 hours investigating
errors as a member of the mutilations pride team, when
there was overtime, he would get his tools and start
doing repairs with the rest of work group 34 Overtime
equalization charts, one for each shift, were maintained
in the office of the advisors for department 25, during
the period Nevills was assigned to the mutilations pride
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
team he was always listed as a member of work group
34 Also during his tenure on the mutilations pride team
Nevins attended daily team meetings for work group 34
On November 20 when the second shift was elimmat
ed, a notice was posted announcing that employees
lowest in seniority on the second shift were being laid
off and the remaining employees were being assigned to
work groups on the first shift Nevins was listed as being
assigned to work group 33
Nevins protested to Advisor Billy Arnold for work
groups 33 and 34 Arnold told Nevins that he would
have to take the assignment to work group 33 or be laid
off Nevins then went to Suzuki who told Nevills that he
had originally assigned Nevins to work group 34 but the
Union had changed it, Suzuki advised Nevins to get it
straightened out with the Union
Nevins went to the work center (Union s in plant
office) and presented his problem to Vice President
Johnny Nelson Second Shift Zone Committeeman Sam
Hudson, and First Shift Zone Committeeman Doc
Alford Alford suggested that all of them present the
matter to Henry The men found Henry in the personnel
office and presented the problem According to Nevins
credible testimony and Joe Henry s response was
that it couldn t happen that mutilations was not a work
group and that I should be—should return to 34 This
testimony was not denied by Henry As the men were
speaking Zone Committeeman Donald Wilburn entered
the work center Wilburn was consulted by Henry and
Wilburn agreed that Nevins should have been placed in
work group 34 Henry told Nevins to contact Zone
Committeeman Jerry Portell about the matter Nevins
waited around the work center until Porte!! appeared
Portell first conferred with Henry then he told Nevins
that he would escort Nevills to Suzuki s office and we 11
get you back in your work group Somehow, Portell
got to Suzuki before Nevins did At any rate when Ne
vills got to department 25 Suzuki put him back in work
group 34 Suzuki and Nevins conversed Nevins asked
Suzuki who had gotten him taken out of work group 33
and placed in work group 34 in the first place Suzuki
replied that it was Pat Johnson who also was an employ
ee in department 25 s work group 34
Johnson was the also district committeeman for de
partment 25 and he functioned as Henry s substitute as
chairman when Henry was out of town 8 Johnson was
also working on the day shift in department 25 work
group 34, when the second shift was terminated and Ne
vills was returned to days Johnson had less seniority in
work group 34, having started there in 1985
On December 16, all members of work group 34 were
offered overtime except Nevins Nevins confronted
Suzuki about it and Suzuki acknowledged error and of
fered that day s overtime to Nevins (Nevins declined )
After confronting Suzuki Nevills confronted Johnson
According to the undemed testimony of Nevins
8 Sutton testified without contradiction that Johnson was also Ad
numstrative Assistant to the Union Chairman Henry and took his place
when Henry was not in the plant
I asked him what kind of mess he was trying to
pull Pat Johnson said I know exactly what
you re talking about, I made the decision to pull
you out of that group [Johnson added] that Joe
Henry agreed with him and that if I had any other
problems with that, that I should go to the National
Labor Relations Board because he himself did not
want to hear it any more
On Monday, January 4 1988 on the day the employ
ees returned from Christmas break Nevins was offered
overtime with the rest of work group 34 but he was also
told by the advisor Billy Arnold according to the un
denied testimony of Nevins that I was in work group
34 on a day by day basis because he was going to have
to take me out Nevills filed his charge on January 6
On January 7 he was approached by Arnold who ac
cording to Nevins told him
he had screwed up by offering me overtime that
Monday and that I was not to equalize [overtime]
with 34 group anymore unless he himself specifi
cally asked me
Nevins filed a grievance that was denied
On January 18 Arnold called Nevills to his office and
told him that he was no longer a member of work group
34 and that he was to report to work group 33 (pasteing
on decals) Nevins filed a racial discrimination grievance
that was denied
From January 4 through the date of the hearing, Ne
vills received no overtime as a member of work group
34 although that work group has received regular over
time Nevins received overtime on only 1 day during this
period as a member of department 25 s work group 33
Although there has been no charge filed against the
Employer in the Nevins matter, Eastvold was questioned
on direct examination about his knowledge of the Issue
Eastvold testified that the Union took the position
that as a matter of contract interpretation Nevins
should have been returned to work group 33 and he
agreed According to Eastvold
Lemar Nevins had been a member of the Mutila
lions Pride Team and he of course was being re
turned to the job on the floor And the language in
the collective bargaining agreement between the
parties says that employees who want to become a
member of the Mutilations Pride Team file an appli
cation as would anyone else in the plant who
wanted to transfer to some other department or
classification or what have you within the plant
they d have to make an application The transfer
agreement means that once someone transfers via an
application they have no further rights or return
rights to the group from whence they came The
Union purported that position and I agreed with
them that that s the basis of how Mr Nevins should
be returned to his line job in the department
Eastvold denied that at any time during his discussion of
the matter any reference to Nevins politics was made
, GENERAL MOTORS CORP 43
On cross-examination Eastvold acknowledged that
when employees are assigned to the mutilations pnde
team they continue to be listed on the Employer's
records as being in the work group from which they had
transferred When asked why, Eastvold answered
Two reasons probably One is the mutilations func-
tion was performed within each of the departments
There wasn't a separate department set up just to
[perform] the mutilations functions They performed
their jobs within their own departments Secondly,
[the] mutilations job itself did not carry with it a
separate classification For example, assembler
versus a tnmmer
Eastvold further testified that if an employee wants to
transfer between departments, he is to file an application
with the personnel department, if he wants to become a
member of the mutilations pride team, he files an applica-
tion with his advisor
On direct examination Johnson testified, based on the
contractual provisions quoted above, transfers to the mu-
tilations pride team are by application and, that if em-
ployees wish to transfer back to their former work
groups
They have the nght to transfer back, but as far as
return to former group transfers, they do not have
it because they gave their rights up when they
transferred into mutilation
Johnson testified that Nevins' grievances should not even
have been accepted by the committeeman He denied
that politics or race had anything to do with his position
on the Nevins matter
On cross-examination Johnson acknowledged that he
was the first to raise an issue about Nevins' going to
work group 34 after the second shift was terminated He
acknowledged that the Employer initially took the posi-
tion that assignment to work group 34 was correct
Johnson further stated on cross-examination that it was
his contract interpretation that once Nevins took the mu-
tilations pride team position
He goes low man department-wide as far as return
to former group He don't have the nghts for return
to former group Lemar should have been
moved to low man in the department for the sole
purpose of tracking him to pay him, and that is
where he should have went [when he took a mutila-
tions pride team job]
Johnson testified that he had had no knowledge that
during the time Nevins was working on the second
shift's mutilations pride team, he was continued on the
work group 34 overtime equalization program and was
so listed on the overtime schedules in the advisor's
office Johnson testified that he was then working days
and paid no attention to the second-shift overtime equali-
zation charts
The Union Introduced the testimony of Torkey
Graham who was elected a district committeeman in the
1987 election Graham testified that he had personal
knowledge that employees John Parker, Ron Shatzar,
Fred Schweer, and Joe Lewis had been assigned to the
mutilations pride team and, on termination of that tenure,
each "went to low man in his classification department
wide" When asked on direct examination, "is that the
way it is usually handled?" Graham replied, "that is the
way it should [be] done according to the contract"
B Analysis and Conclusions
1 Removals from union office of Sutton, Stevenson,
Smith, Pogue, Detters, Travis, and Ramsey
The complaint alleges that the Union caused the Em-
ployer to remove Sutton, Stevenson, Smith, Pogue, Det-
ters, Travis, and Ramsey from their positions described
above and that, therefore, the Employer violated Section
8(a)(1) and (3), and the Union violated Section 8(b)(1)(A)
and (2) of The Act
The first question to be asked, of course, is whether
the Union had an absolute right to remove the placement
committee coordinator, the quality of work life coordina-
tor, and the quality pride team members whom it had ap-
pointed, or must the Union demonstrate "good cause"
for its actions The General Counsel argues, in effect, for
the latter proposition
The only authority the General Counsel cites for her
position is Printing Pressmen Local 284 (Las Vegas Sun),
230 NLRB 1104 (1977) In that case the employer had
delegated to the union the authority to designate seniori-
ty of unit employees for purposes of shift selection and
vacations The charging party therein refused to engage
in certain picketing against another employer As punish-
ment, the union took away his seniority preference, caus-
ing him to miss several shifts of work
Nothing akin to Las Vegas Sun is present herein The
case cited was an instance of outright retribution for the
exercise of a Section 7 right, the right to refrain from en-
gaging in picketing activity The right of unions to select
its office appointees was not discussed
Assuming that Henry was motivated by no desire
other than political retribution, there is no case authority
holding that a union may not replace its officers for that
reason Nor is there any authority for the proposition
that union office holders are insulated from replacement
just because the union office has a denvative benefit of
more desirable work (which is the case herein as all of
the union offices entailed lighter, or at least cleaner,
work, but no additional pay)
Adopting the General Counsel's argument that the
Union could remove its appointees only for good cause
_would produce an obviously anomalous result The posi-
tions involved are secured by appointment by the union
president and bargaining committee chairman Each of
those individuals secure their offices by running for elec-
tion 9 Their offices last for only 3 years, when new elec-
tions are held Therefore, adopting the General Counsel's
position here would mean that the holders of the offices
of placement committee coordinator, quality of work life
9 And, as demonstrated by the record herein, these elections can be
long, bitter, and expensive
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
coordinator and quality pride team members (or the cur
rent equivalent of quality pride team members) could
remain in their appointed offices longer than those who
appointed them In the cases of certain constitutional and
statutory appointments the appointees may hold their of
fices or positions for periods longer than those who ap
point them but nowhere else is this phenomenon found
in common experience As well as no case authority the
General Counsel advances no reason why the Board
should establish for union appointees tenure comparable
to that which is granted statutory or constitutional ap
pointees
Nor does the General Counsel advance any reason
why appointments that are given as a result of political
considerations may not be taken away for the same con
siderations Each of the appointees was a member of the
Red Caucus at the time of appointment, or became a
member shortly thereafter There is no contention that
they were appointed for cause or merit alone and at
any rate there would be no way to conclude that merit
alone caused the appointments That is according to this
record the incumbents entered by way of the political
path and there is no reason to hold that they should not
exit the same way
The Board has had essentially this issue before it
before In Shenango Inc 237 NLRB 1355 (1978) one Li
gashesky occupied the position of plant safety committee
chairman Ligashesky had supported Sadlowski in the
1977 national USW election Sadlowski lost Members of
the local s hierarchy thereafter removed Ligashesky from
his plant safety committee chairman s job and they told
Ligashesky that they did so because of his support for
Sadlowski Reversing the administrative law judge s find
mg of violations on the part of both the employer and
the union, the Board reasoned
The issue is one of balancing the employee s Sec
tion 7 right to engage in internal union affairs
against the legitimacy of the union interest at stake
in the particular case Thus in Carpenters Local
Union No 22 United Brotherhood of Carpenters and
Joiners of America AFL-CIO (William Graziano
d/b/a Graziano Construction Company) 195 NLRB
1 (1972) the union had no legitimate interest in
fining a member for opposing the incumbent union
officers so the balance was properly struck in favor
of the employee and the violation was found Simi
larly in General American Transportation Corpora
tion 227 NLRB 1695 (1977) the Board found an
8(b)(1)(A) violation where the union removed the
steward from office because he filed an unfair labor
practice charge with the Board There the union
had no legitimate interest in defeating employee
access to the Board
Here however, the Union does have a legitimate
interest in placing in offices such as chairman of the
safety committee those people it considers can best
serve the Union and its membership Retention of a
plant safety committee chairman who is hostile to
or in disagreement with the leadership may be un
desirable or ineffective for a host of valid reasons
That this may add up to union hostility toward
having a dissident in such positions and make his
dismissal a reprisal as it did here does not alter the
case The union is legitimately entitled to hostility
or displeasure toward dissidence in such positions
where teamwork loyalty and cooperation are nec
essary to enable the union to administer the contract
and carry out its side of the relationship with the
employer In the circumstances of this case the
Union s interest outweighs the interest of Liga
shesky in retaining his office and therefore we do
not find a violation in his removal from office or in
the March 8 statement to Ligashesky informing him
that his removal was caused by his support for Sad
lowski [237 NLRB at 1355 emphasis added ]
There is no viable distinction between the positions in
volved herein and the plant safety committee chairman
ship involved in Shenango Nor is there any reason to be
lieve that the Board in Shenango would have reached a
different result if Ligashesky had sworn allegiance to
Sadlowski s victorious opponent Therefore there is no
reason to reach a different result herein because all the
removed individuals insisted that they had and could
work in the future in the spirit of cooperation and effi
ciency That is Henry was not required to accept blindly
their protestations that they could work with him and
the new umon administration
Therefore were I called on to do so I would con
dude that the Union could remove employees holding
the positions of placement committee coordinator qual
ity of work life coordinator and quality pride team
member for reasons that are in the characterization in
yoked by Henry as he did so political
Assuming that Henry acted out of mixed motivations
I find and conclude that it has been shown that he would
have acted as he did even absent the protected concert
ed activity of the incumbents memberships and activities
in the Red Caucus
The large number of Red Caucus members appointed
to positions by Henry is probative evidence that he was
not out to get Red Caucus members just because they
were Red Caucus members Moreover Henry credibly
testified that he removed Sutton because he was belliger
ent hostile and excessively confrontational these were
characteristics that Sutton demonstrated in his quoted
testimony" and in his courtroom conduct 11 The Em
ployer further produced credible testimony of the ob
streperous albeit effective conduct of Sutton as he per
formed his appointed duties as placement committee co
ordinator Henry further testified credibly about being
motivated by Smith s opposition to jomtness in his
conduct as quality of work life coordinator Smith was a
disciple of Galey and Galey was not produced to deny
credible testimony about his opposition to jointness
The same can be said of the members of the quality pride
team I credit the testimony that they were ineffective to
the point of being counterproductive that this was the
reason that the Employer asked Henry to remove
_
10 See fn 3 above
" See fn 5 above
GENERAL MOTORS CORP 45
them," and that this was the controlling reason that the
quality pride team members were removed and that team
abolished
The factors that Henry vacillated in the announce-
ments of his decisions, and that he sometimes used the
taboo term of "politics," do not compel a contrary con-
clusion Ultimately, the issue is Henry's controlling moti-
vation, not his words or how smoothly he implemented
his decisions
Accordingly, I shall recommend dismissal of the alle-
gations of the complaint that the removals of Sutton,
Smith, Stevenson, Pogue, Detters, Travis, and Ramsey
violated any Section of the Act, either on the part of the
Union or the Employer
2 Denial of overtime to Nevills
The complaint alleges that the Union took its actions
against Nevins because of his nonsupport of the Inde-
pendents in the 1987 election and because of "arbitrary
and invidious reasons" The complaint alleges that by
such actions the Union has violated Section 8(b)(1)(A)
and (2) of the Act
There is no evidence to support the General Counsel's
contention that Nevills' politics had anything to do with
the Union's actions toward Nevins However, I do agree
with the General Counsel's contention that Nevins was
the victim of arbitrary conduct on the part of Respond-
ent Union
The first thing to be noticed about the Nevins' case is
that the Union, by Johnson, as Johnson admits, took the
initiative to have Nevins reassigned from work group 34
to work group 33 That is, no one was complaining
about Nevins' having been placed in work group 34 until
Johnson apparently noticed it and had Nevins removed
This factor immediately distinguishes those cases in
which an employer takes an action that may benefit one
employee (or employee group) but adversely affects an-
other, and the adversely affected employees complain to
their union In such posture, a union is afforded a wide
degree of latitude in making contractual interpretations
and evaluations Its actions, or inactions, are not held to
a standard that requires Solomonic wisdom that pro-
duces Athenian justice in all cases A union may balance
the interests of one individual, or group, against another
in attempting to secure the greatest good for the greatest
number
Nor is a union required to be "right" in all occasions
in which it takes the initiative For example, a union may
cause a discharge because of good-faith interpretation of
a union-security clause Absent evidence of unlawful mo-
tivation, its conduct is not violative of Section 8(b)(1)(A)
or (2), assuming it makes a good-faith error in its inter-
pretation, and the union is attempting to protect a legiti-
mate union interest (such as union security) 23
12 Lombardo's memorandum regarding the misconduct of the members
of the quality pride team was a stinging indictment of the quality pride
team system, and the General Counsel made no attempt to answer It
That a "case" was not made against all members does not detract from
the conclusion that the Employer, for legitimate and substantial business
reasons, had decided that that system had to be eliminated
" Forsyth Hardwood Co, 243 NLRB 1039 (1979)
Here, however, there is no apparent legitimate union
interest that Johnson was seeking to protect, and John-
son suggested none No apparent union interest suffered
while Nevins served on the mutilations pride team for
over 2 years, all the time sharing in the overtime as-
signed to work group 34 Certainly, after the second shift
terminated and Nevins was originally assigned to work
group 34, no other employee had filed a grievance com-
plaining that Nevins' placement in work group 34 ad-
versely affected the other employees There is no conten-
tion that there was even a potential of such a grievance,
Nevins displaced no one when he was placed in work
group 34 Therefore, the Union was placed in no strong-
er position by Johnson's actions, and no legitimate inter-
est of the Union would have been left unprotected had
Johnson not acted 14
No, Johnson's actions appear to be nothing more than
the raw exercise of his newly acquired power of elective
office There is only one way to characterize Johnson's
and therefore the Union's 15 actions in regard to Nevins'
arbitrary
Nevins is protected by the statute from such arbitrary
action, and it does not matter that the General Counsel
has failed to adduce any evidence that the Union acted
toward Nevins either because of his race or his member-
ship in the Blue Caucus As stated by the Eighth Circuit,
while "[m]ere negligence, poor judgment or ineptitude
are insufficient to establish a breach of the duty of fair
representation," lairbitrary conduct alone may suffice to
establish a violation of the duty of fair representation"
NLRB v Postal Workers, 618 F 2d 1249, 1255 (8th Cir
1980) The circuit in that case found arbitrariness by
finding the union's justifications for its actions invalid
Here, as noted above, the Union offered no reason for its
actions other than that Johnson made the conclusion that
the contract had been violated However, there is no ex-
planation offered for Henry's concession to Nevins that
he belonged in work group 34, as Nevins testified Nor
does the Union advance any reason why Portell would
have prevailed on Suzuki to put Nevins back into work
group 34 After all, both Bargaining Committee Chair-
man Henry and Zone Committeeman Portell were union
superiors to Johnson, a district committeeman who
wielded more authority only when Henry was absent
from the plant
Moreover, while the Union does not, as noted above,
always have to be "right" in its interpretations, here the
Union's interpretation is outrageously wrong
The national contract provisions quoted above do say
that those employees who are transferred lose their se-
niority in their old work groups, however, to apply this
to employees who transfer to the mutilations pride team
is manifestly unreasonable The quoted provisions of the
national agreement necessarily assume that when an em-
14 Johnson's actions appear to have benefitted Johnson, if not the
Union or any other employee Getting the Employer to remove Nevins
from department 25 s work group 34 resulted in one less senior employee
in that work group above Johnson
15 Although the Union denied Johnson s status as its agent within Sec
2(13) of the Act, his holding of elective office and exercising the powers
thereof establish that he was exactly that, a statutory agent Penn Yan Ex-
press, 274 NLRB 449 (1985)
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee transfers he begins to build up seniority in his
new work group Here, as Eastvold testified and all par-
ties knew, employees who transferred to the mutilations
pride team did not change departments and, therefore,
they began no new seniority count The insidious inter-
pretation by Johnson forced on Nevins a vicious penalty
for agreeing to serve on the mutilations pride team 16
There is no evidence that the parties Intended such
result," and I do not believe that Johnson, in good faith,
had concluded that they had when he caused the reas-
signment of Nevins
Accordingly, I find and conclude that by the arbitrary
action of Johnson toward Nevins, which action caused
the loss of preferable work and loss of overtime suffered
by Nevills, the Union violated its duty of fair representa-
tion of Nevins, and it thereby violated Section 8(b)(1)(A)
and (2) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent Union set forth in section
III above, ocurnng in connection with the operations of
the Employer as described in section I above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
CONCLUSIONS OF LAW
1 General Motors Corporation is, and at all times ma-
terial has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 Local 2250, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, is, and at all
16 That others, according to Graham, suffered from the same arbitrary
conduct by the same contract interpretation is no defense to the charge
and complaint herein
17 Until Johnson's repeated demands, the Employer had, obviously, In-
terpreted the contract to continue Nevins in work group 34
times material has been, a labor organization within the
meaning of Section 2(5) of the Act
3 Respondent Union has violated Section 8(b)(1)(A)
and (2) of the Act by causing the Employer to assign
Lemar Nevills to a less desirable work group and by
causing the Employer to deny overtime to Nevins
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
5 Respondent Union has not otherwise violated the
Act in any manner alleged in the complaint
6 Respondent Employer has not violated the Act in
any manner alleged in the complaint
THE REMEDY
Having found that Respondent Union engaged in ac-
tivities violative of Section 8(b)(1)(A) and (2) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act
Because Respondent Union unlawfully caused Nevins
to suffer a loss of overtime to which he was entitled, I
shall recommend that Respondent Union be ordered to
make Nevins whole for the loss of earnings that he suf-
fered as a result of the discrimination against him in the
manner prescribed in F W Woolworth Co, 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded 18
Because Respondent Union unlawfully caused Nevins
to be transferred to a less desirable work group, I shall
recommend that Respondent Union be required to notify
the Employer, in writing, that it has no objection to Ne-
vins being reassigned to work group 34 in department
25
[Recommended Order omitted from publication ]
18 283 NLRB 1173 (1987) Interest will be computed at the 'short-term
Federal rate for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S C § 6621