GM Assembly Div.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1186 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GM Assembly Division General Motors Corporation
and Louis Segal and Lynn Rollerson. Cases 32-
CA-139 (formerly 20-CA-12344) and 32-CA-
1112
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On June 15, 1979, Administrative Law Judge
James R. Rasbury issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaints in Cases 32-CA-139 and 32-
CA- 1112 be, and they hereby are, dismissed in their
entirety.
I The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In dismissing the complaint allegations that Foreman Clem Holquin un-
lawfully hid the grievance book of alternate committeeman Louis Segal and
threatened an employee with job loss, we do not necessarily agree with nor
do we pass upon the Administrative Law Judge's finding that the litigation
of these alleged violations is precluded because of a settlement agreement
and litigation in Cases 32-CA-608 and 402, et al., involving similar conduct
by Holquin. Case 32-CA-139 was on appeal to the General Counsel from
the Regional Director's refusal to issue, complaint therein at the time the
settlement agreement was reached in Cases 32-CA-608 and 406, et al., and
the parties could not have contemplated settlement of allegations which the
Regional Director had found without merit. However, the clear language of
the notice posted pursuant to the settlement covers the instant allegations
involving Holquin, and hence any finding or remedy as to Holquin's alleged
8(aXI) violations would merely be cumulative. Holquin's alleged miscon-
duct, however, can properly be considered as background to the complaint
allegation that Segal was discriminatorily discharged, but even considering
these facts there is insufficient evidence to establish that Segal was justified in
assaulting General Foreman Larry Campiotti. We therefore find, in agree-
ment with the Administrative Law Judge, that Segal's discharge was not
disparate or discriminatory.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard before me in Oakland, California, on December
12, 13, and 14, 1978.' The charge in Case 32-CA-1112 was
filed by Lynn Rollerson on July 28, and a copy thereof was
served on GM Assembly Division, General Motors Corpo-
ration (herein called General Motors or Respondent) on or
about the same date. On October 31 a complaint was issued
alleging that Respondent had violated Section 8(a)(1) of the
National Labor Relations Act, as amended (herein called
Act), by threatening an employee if she persisted in filing a
grievance, by refusing to honor an employee's request for
union representation at an interview, and by suspended
said employee following an interview which was conducted
without honoring the employee's request for union repre-
sentation.
The charge in Case 32-CA-139 was filed on January 7,
1977.2 A complaint in Case 32-CA- 139 was issued on Sep-
tember 29, alleging Respondent to have violated Section
8(a)(1) and (3) of the Act by harassing, threatening, and
then discharging Louis Segal. Respondent's answer in Case
32-CA-139 was filed on October I 1, and while admitting
certain jurisdictional requisites it denied the commission of
any unfair labor practices. A similar denial of the commis-
sion of unfair labor practices was filed by Respondent in
Case 32-CA-1112 on November 10.
Although the facts and circumstances of these two cases
are totally unrelated, because of the common Respondent
the cases were consolidated by Order of the Regional Direc-
tor for Region 32 on November 8.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is now and has been at all times material
herein a corporation duly organized under and existing by
virtue of the laws of the State of Delaware with its principal
place of business located in Detroit, Michigan. It operates a
facility in Fremont, California, where it is engaged in the
manufacturing and assembling of automobiles and trucks.
During the past 12 months Respondent, in the course and
conduct of its business operations at Fremont, California,
purchased and received goods, materials, and supplies val-
ued in excess of $50,000 directly from suppliers located out-
' Unless otherwise specified all dates hereinafter shall refer to calendar
year 1978.
'There is no proof of service of the charge in Case 32-CA-139. The index
of the General Counsel's formal documents shows I(b) to be an affidavit of
service of the initial charge in Case 32-CA-139; however, that affidavit is
dated July 28., 1978, and relates to Case 32-CA-1112. However, I do not
regard this ommission as fatal in view of the fact that it was not raised as an
issued by Respondent, and there is proof in the record that Respondent
received a copy of the complaint issued in Case 32-CA- 139 and was not in
any way denied due process because it was fully informed of the alleged
violative conduct.
245 NLRB No. 152
1186
GM ASSEMBLY DIV.
side the State of California. On the basis of these admitted
facts I herewith find Respondent to be and at all times
material herein to have been an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Local 1364, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Amer-
ica, UAW (herein called Union), is now and at all times
material herein has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Lynn Rollerson: Case 32-CA-1112
I. The issues
The difficult problem is one of resolving credibility. (I)
Was Rollerson threatened with discharge if she persisted in
filing a grievance? (2) Did Foreman Larry Saffold refuse to
honor Rollerson's request for union representation at an
interview in which she could reasonably expect to be disci-
plined?
2. The evidence
The party stipulated that Lynn Rollerson was hired on
April 4, 1976, as an inspector. She was transferred or re-
duced to an assembler in October 1976; in May 1977 she
was returned to the job of inspection and on April 24, 1978,
she was discharged. She was rehired on July 24, 1978, as an
inspector and was transferred on October 23, 1978, to a new
department as an assembler.' The parties also stipulated
that her disciplinary record from the date of her hiring-
April 4, 1976-until her discharge on April 24 reflected the
following:
On December 22, 1976, received reprimand from her
foreman for violation of shop rule 17. (Shop rule 17
deals with careless workmanship.)
On January 27, 1977, received reprimand from fore-
man for violation of shop rule 6, dealing with unex-
cused absences.
On May 2, 1977, received a reprimand for again violat-
ing shop rule 6.
July 23, 1977, received a serious reprimand from fore-
man for violation of shop rule 6.
September 21, 1977, received a final reprimand from
Foreman Larry Isquirdo for violation of shop rule 17.
The testimony of Deborah Manduca, a labor relations representative for
Respondent, is undisputed that Rollerson was rehired on July 24 as part of
the grievance settlement between Respondent and the Union which was filed
on the occasion of her discharge on April 24. The settlement also included
the requirement that she request transfer to another department in produc-
lion.
October 19, 1977, received a suspension for the balance
of her shift plus 2 weeks from Foreman Isquirdo for
violation of shop rule 17.
February 1, 1978, received a suspension for the bal-
ance of shift plus 2 weeks from Foreman Freitas for
violation of shop rule 6.
On April 3, 1978, received a suspension for the balance
of shift plus 30 days from Foreman Saffold for viola-
tion of shop rule 17.
On April 15, 1978, received a suspension pending dis-
charge from Saffold for violation of shop rule 17.
On April 24, 1978, the suspension was converted to a
discharge for violation of shop rule 42 which deals with
repeated violation of shop or safety rules.
Rollerson testified that when she received her April 3
disciplinary notice, which called for a 30-day layoff, that
she was told by Saffold that she would have to be off work
for a minimum of I week after which she could return to
work, and the remaining 3 weeks would be removed from
her record. Upon her return to work on April I I she stated
that she went to the labor relations office and talked to
some unidentified person in labor relations to ascertain if
the 30-day suspension had been removed from her record.
She learned that it had not. During her shift she saw her
committeeman, Elmer Avery, and told him that she wanted
to file a grievance against Larry Saffold because he had not
fulfilled his promise to wipe out the remaining days of her
suspension. According to Rollerson, a short time after she
had advised Avery that she wanted to "write up" Saffold,
Saffold came by her work station and said to her, "If you
write me up, you're going right back out the door."
According to Rollerson, on April 15 at about midnight
Saffold came by her station and advised her that she had
overlooked three missing lug nuts and had failed to write
them up on the ticket.' Rollerson further testified that a
short time later she was relieved of her job and told to
report to the office of her foreman. Rollerson claims that
she asked Saffold to have her committeeman, Elmer Avery,
present. She also claimed that at that time, Debbie Man-
duca, the labor relations representative, walked in and
asked her a number of questions about her job. Rollerson
claimed that she again asked for her committeeman, Elmer
Avery. She claimed that she asked Larry Saffold to call
Avery, which Saffold attempted to do but, according to
Rollerson. was unable to reach him. After Manduca had
completed her questioning, according to Rollerson, Saffold
then wrote up her "suspension pending discharge" and ac-
companied her toward the front door. Near the door she
saw her committeeman. Avery, who said that he would get
in touch with her the following day and try to get her rein-
stated.
Avery was called as a rebuttal witness and testified that
he learned of Lynn Rollerson's problem from an employee
referred to as Chopper, who Rollerson had stated went by
I Rollerson's job as an inspector was to check and record the tires and tire
sizes and to check all the wheels for the presence of all the lug nuts as well as
their tightness. After making these inspections she was then to record in the
appropnate block on a tag which accompanied each truck what may have
been wrong and the fact that she had made the inspections.
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on his forklift when she was being interviewed by Manduca
and Saffold. Avery testified that he saw Rollerson and Saf-
fold as they were nearing the exit door at the north end of
the plant, and that he inquired as to what was happening.
Rollerson replied, "They're firing me." At that point Avery
said that he had Rollerson sign a grievance form. Avery
was then presented with his copy of the statement of disci-
plinary action (Resp. Exh. 3).
Larry Saffold testified that he is an inspection foreman in
the truck department and has some 27 people working un-
der him, and that Rollerson worked for him for a period of
approximately 8 months. Saffold testified that he had coun-
seled Rollerson at least five or six times for her failure to
indicate in the appropriate block on the inspection ticket
that accompanies each of the trucks what errors, if any, she
had found5 and to indicate that she had made the inspec-
tion. Saffold testified that after he had counseled with Rol-
lerson a number of times on at least three occasions he had
the committeeman, Elmer Avery, participate in their dis-
cussions in an effort to help her in doing her job. (Although
Avery was called as a rebuttal witness, he did not deny that
he had participated in a number of counseling sessions with
Rollerson and Saffold.) Saffold further testified that on
April 3 he disciplined Rollerson for her careless workman-
ship. "I had her relieved and taken her down to the final
line and showed her three jobs where she had failed to buy
her mandatory block, station 31. And like I've already said,
I showed her the jobs before and the jobs after, which indi-
cated that the jobs were hers .... " At that time she was
given a 30-day suspension, which was what was called for
in the Respondent's system of "progressive discipline."
However, when Rollerson complained about her financial
condition and her inability to be without work for 30 days
Saffold agreed that he would only require her to be off the
job 1 week and that she could return, but he did not indi-
cate that he would in any way remove the additional 3
week suspension from her record. According to Saffold, he
told Rollerson, "I want you to understand now that you'll
do I week in street and that you're going to work the re-
maining 3 weeks off and that you've got 30 days solid on
your record."
Saffold testified that he saw Rollerson on April 11 when
she returned to work, that he cautioned her to keep an eye
on the job and to take care of her mandatory blocks, and
that was all that was said in their early evening conversa-
tion. After Rollerson had been on the job about 90 minutes
Saffold stated he learned that she had again missed a man-
datory block. Saffold testified that he could have sent her
out on the street again for 30 days or suspended her pend-
ing final determination of discharge, but he elected to have
another counseling session with her. Saffold called her com-
mitteeman, Elmer Avery, and together they discussed Rol-
lerson's work record. On this occasion neither Avery nor
Rollerson denied her very inadequate work record. As a
result of this conference Saffold wrote up an AVO which
was sent to the labor relations office (AVO stands for
"avoid verbal orders." See Resp. Exh. I for a copy of the
AVO which corroborates Saffold's oral testimony.) Two
5 This checking of the appropriate block in the proper manner was re-
ferred to throughout the hearing as "buying her block."
days later, on April 13, Saffold again counseled Rollerson
in the presence of her committeeman, Elmer Avery, with
regard to violating safety rule 17 and warned her that any
further violations could result in formal disciplinary action.
(See the AVO dated April 13-Resp. Exh. 4.) Saffold testi-
fied that on April 15, between 11 p.m. and 11:30 p.m. "Rol-
lerson failed to document on the inspection ticket that there
were three lug nuts shy on the right rear wheel." Saffold
testified that he had Rollerson relieved from her job and
took down the final inspection line to show her the mistake.
Again, he said that he had her check the job ahead of the
one with the missing lugs and the job behind the one with
the missing lugs to make certain that she understood that it
was her responsibility to have checked or inspected this
particular truck for the missing lugs and to have indicated
their absence in the appropriate place on the block or tag
that accompanies each truck. He stated that she had no
explanation, that she just said she did not understand how
she had missed it. Saffold testified that he then proceeded to
his office where he wrote up the statement of disciplinary
action (Resp. Exh. 3), after which he asked her to sign it.
When she refused to sign, as is indicated on the exhibit,
Saffold asked her if she would like to request her commit-
teeman. Upon receiving an affirmative answer Saffold
wrote on the form "committeeman requested." He stated
that he then called the union office in the plant and told
them that he wanted to get ahold of Avery right away be-
cause he was working on a DLO (disciplinary layoff); that
she was going out the door and Saffold wanted him right
away. Saffold said that he permitted Rollerson to wait in his
office while he spent the next 20 or 30 minutes doing his
routine job on the inspection line, after which committee-
man Avery showed up. According to Saffold, "Avery
showed up approximately half an hour later. Had him into
the office, explained to him what had happened. I told him
exactly what I did. By that I mean I explained to him that
I had her relieved, told her why I had her relieved; I had
taken her down, showed her the job, showed her the ticket;
brought her back to my office, ran a copy of the ticket,
whatnot; got ahold of labor relations, found out that she
was facing discharge: wrote out the discipline. She had read
it, she had looked at it, she refused to sign it; she requested
you [the committeeman Avery] here." After that Avery
asked if he could speak to her alone, and Saffold stepped
out of the office for about 15 or 20 minutes. When he re-
turned he was presented with a grievance. Saffold then
asked Avery to sign the disciplinary slip, after which Avery
was given his copy. Saffold categorically denied that at any
time he had threatened Rollerson with discharge or suspen-
sion in the event she filed a grievance against him.
Debbie Manduca corroborated the testimony of Saffold
insofar as the numerous counseling sessions were con-
cerned, and the fact that she had talked to Rollerson within
I day or 2 after she had returned to work on April I 11. Her
testimony conflicted with Rollerson's in that Manduca was
not present at the April 15 final suspension. Manduca fur-
ther testified that the grievance which Rollerson filed fol-
lowing her "suspension pending final determination" (Resp.
Exh. 2), was finally settled between Respondent and the
Union by allowing Rollerson to return to work on July 24,
provided she agreed to transfer to production. Manduca
1188
GM ASSEMBLY DIV.
also testified that Rollerson never filed a grievance for fail-
ure to Saffold to provide her committeeman as requested,
nor was such an argument ever made by the Union in the
course of resolving her April 15 grievance even though the
right to have a committeeman present is set forth in the
contract. No grievance was ever filed in regard to a threat
made by Saffold to Rollerson relating to the filing of griev-
ances.
Analysis and Conclusions With Regard to the Charge
Filed by Lynn Rollerson-Case 32-CA-I 112
As indicted earlier herein, the critical issue herein is one
of resolving credibility. I resolve that credibility in favor of
the testimony of Manduca and Saffold over that of Roller-
son and Avery, not only because I feel that the testimonies
of Saffold and Manduca were more accurate, detailed, pre-
cise, and logical, but also because they are largely sup-
ported by written evidence. Saffold was a particularly im-
pressive witness, and his account of the events on April 15
is supported in great detail by the statement of disciplinary
action which he completed and gave to Rollerson as well as
the committeeman Avery. The exhibit indicates that Roller-
son was taken off the line and stopped work at 11:36 that
evening. Avery signed the Union's copy at approximately
12:08 a.m., or approximately 32 minutes after Rollerson
was relieved from her job. Moreover, Respondent's Exhib-
its 1 and 4 corroborate Saffold's testimony of his own le-
niency and consideration in an effort to get Rollerson to
perform her work in a satisfactory manner. Additionally.
the wording of the grievance which was filed by Rollerson
following her suspension on April 15 fails to mention or
complain in any way that her foreman had refused her re-
quest to have a union representative present. I am of the
opinion that Rollerson never asked for her committeeman
until she refused to sign her name to the "statement of dis-
ciplinary action" and was then asked by Saffold if she
would like to see her committeeman. Saffold then requested
her committeeman and they were given time to talk and a
grievance was filed. The timing as reflected on the "disci-
plinary action" as well as the grievance is adequate proof
that Rollerson had access to her committeeman within a
reasonable time after making the request. I find and con-
clude that Rollerson's testimony was a prevarication built
from the whole cloth of her imagination, without any foun-
dation or basis in fact. "In every case, a violation of the Act
must be proved by the General Counsel by a preponder-
ance of the evidence," and this has not been done.6
B. Louis Segal-Case 32-CA-139
1. Background
It is the General Counsel's theory that Louis Segal was
provoked into an act of physical violence against the gen-
eral foreman, and that the provocation occurred over a pe-
riod of weeks and stemmed from the Charging Party's pro-
tected concerted activity.
6Falstaff Brewing Corporation, 128 NLRB 294, 295, fn. 2 (1960), enfd. as
modified 301 F.2d 216 (8th Cir. 1962).
Louis Segal, the Charging Party. was first employed by
Respondent on November 7, 1972. as an assembler in the
cushion room and, so far as his record reveals, remained
continuously employed without serious incident until De-
cember 2, 1976, when he was "suspended pending final de-
termination" for assaulting a general foreman. The relevant
events concerning Segal's case occurred in 1976. and all
dates hereinafter shall refer to 1976 unless otherwise indi-
cated. The suspension was converted to discharge on De-
cember 9.
In June Segal was elected as an alternate district commit-
teeman. The regular district committeeman was Michael
Turner.' The alternate committeeman serves whenever the
regular committeeman is absent or for any reason when the
regular district committeeman is not available to handle his
own duties.
Segal testified that between June, when Segal was first
elected as an alternate committeeman. and October he
probably functioned as a committeeman about 40 percent
of the time. About late September there was a model
change which, according to Segal. generally produces a
large number of grievances because of the change in work
duties and the complaints by the men of an unreasonable
workload. (This type of grievance is referred to as a 78
grievance. because par. 78 of the national agreement deals
with production standards.)
On November 8 Turner took a leave of absence, and
Segal began functioning regularly as a committeeman in
Turner's place.
Larry Campiotti is a general forman in the truck trim
department (department 26). He had served as general fore-
man for nearly 6 years, and before that were a foreman for
approximately 10 years; he was first employed by Respon-
dent in 1958. Campiotti has six foremen that report to him,
and he in turn reports to a superintendent. During the pe-
riod in question Clem Holquin was one of the foremen re-
porting to Campiotti.
The evidence is overwhelming that Segal filed a great
many grievances. (See G.C. Exh. 4(1)-(61).) That he was
7 The following background data, taken from a Decision issued by Admin-
istrative Law Judge Gordon Myatt on July 20, 1977. (Case 20 CA-12108)
provides what is still current and accurate information regarding Respon-
dent's facility and the Union's organizational setup:
The Union is the exclusive bargaining representative for the production
and maintenance employees at the Respondent's Fremont plant. The
International Union and General Motors Corporation are parties to a
master agreement covering production and maintenance units at var-
ious plants around the country. In addition, a local agreement is in
effect between a Local 1364 and Respondent's Fremont facility.
The production and maintenance unit at the Fremont plant consists of
approximately 5,000 employees. The union representatives at the plant
are all bargaining-unit employees who have been elected to their respec-
tive offices by the members. The chief union representative at the plant
is the chairman of the shop committee. which consists of three district
shop committeemen and three zone committeemen. Each zone commit-
teeman has jurisdiction over a number of districts which are represented
in the first instance by district committeemen stationed in those areas.
The Charging Party is an lalternatel district committeeman in the hard
trim department, and represents 200-250 employees. All of the union
representatives have job classifications, and are required to punch in
and out on the time-clock. However, they do not perform production
work dunng their shifts. Rather. their workday is taken up with repre-
sentational duties on behalf of the employees and the Union. They are
paid by Respondent In accordance with the wage rates for their particu-
lar job classification.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more aggressive and more difficult to deal with than other
committeemen comes through the testimony of various wit-
nesses loud and clear. For example, Campiotti referred to
him as "lacking in experience" and as a committeeman that
gave wrong advice to people that got them in trouble. The
regular committeeman, Turner, spoke of meeting with
Campiotti after Segal had served in his stead, and Campi-
otti would urge Turner to come to work more often because
"Segal was a nut; Segal was an asshole; why don't you
come in more often so we don't have to deal with Segal."
Although Holquin testified that he had been told by the
general superintendent not to make any concessions to the
Union, Holquin said that Segal was filing so many griev-
ances against him that he felt harassed.8 Tony DeJesus, cur-
rent union local president-who was a district committee-
man at the relevant ime herein-testified that Campiotti
frequently complained to him about Segal, whom he re-
garded as "a fucking dummy that shouldn't hold no god-
damn office."9 There is no doubt, and I herewith find and
conclude that Segal was regarded by Respondent as an un-
satisfactory committeeman, and if given a choice Respon-
dent would have perferred someone else to serve as a com-
mitteeman. '
2. The discharge
Along with all other local union committeemen, Segal
went to Detroit at the end of November to be briefed on the
tentative national agreement that had just been negotiated.
He returned from that visit on December 2 and went to
work on his afternoon shift. Segal testified that he toured
his work area and noticed a number of operations which he
felt had been previously settled or worked out that were not
operating in accordance with the settlement agreements."
Segal said that he then went to Campiotti's office and dis-
cussed in some detail several grievances-some concerning
the items he felt had been agreed upon but were either not
remedied or were unsatisfactory and some on which he was
still seeking to reach agreement. According to Segal, Cam-
piotti refused to get involved and referred him to the fore-
man in charge of the various areas where the grievances
arose.' Segal responded by saying, [L]ook, I'll do that but
' Holquin was discharged by Respondent in January 1978 for lying. Hol-
quin acknowledged on the stand that he lied to the union representatives on
numerous occasions. His testimony was in conflict with that of Tony DeJe-
sus with regard to an assault by Holquin. Holquin cannot be credited.
However, DeJesus acknowledged on cross-examination that Segal was
lacking in experience and did not understand the give-and-take of collective
bargaining. Campiotti denied ever making such a statement but did ac-
knowledge telling DeJesus some of Segal's grievances were nutty misinter-
pretations of the national agreement.
lO This determination is made without finding it necessary to review all of
the tedious and numerous incidents in the record that undeniably lead to this
conclusion.
t I.e., there were only two men on an operation where Segal said that the
Company had agreed to have three men: a safety ramp had been built to
accommodate a woman worker that was short and had difficulty in perform-
ing her duties, but she complained that the ramp was not long enough.
12 The first step in the grievance procedure involves a meeting between the
committeeman and the first-line foreman. There was testimony indicating
that the general foreman participates at what is referred to as "a step and a
hatlf," although the national agreement (Jt. Exh. 3 at page 26), makes no
reference to participation by the general foreman, and I could not find any
reference to such a half step in the local agreement (Jt. Exh. 2).
I'm telling you now that I might have to come back if they
don't feel-if they are not willing, or don't feel they have
the responsibility to resolve some of these problems, then
I'm going to have to go back to you, because you're next in
line in authority." Segal then departed.
Later in the evening Segal and Campiotti toured some of
the so-called problem areas and talked about some of the
problems raised by Segal, but nothing was definitively re-
solved.
According to Segal, as he made his rounds two employ-
ees complained to him because Campiotti had telephoned
their homes the night before inquiring as to why the men
were not at work. According to one complainant, this had
gotten him into trouble with his wife at home and created a
"hornet's nest."
Segal then found Campiotti in the area of Foreman Van
Cook's office. Campiotti was telling Van Cook to get some
of the people relieved because Segal wanted to talk to some
of them, and "whoever Segal talks to or after Segal's fin-
ished talking with them I want to talk with them." Campi-
otti's version of this brief meeting was not too different. He
testified, "I told Van to go ahead and relieve the people for
the committeemen, and then I says: 'I'll talk with these
turkeys later'; and I was referring to the people I wanted to
talk to in that group." Segal then complained, "Why do you
call these people turkeys?"
Segal testified that Campiotti's use of the word "turkey"
occurred about this time, but it was after he complained to
Campiotti about telephoning the employees at their homes,
to which Campiotti replied, "I called these turkeys today, I
called them yesterday, and I'm going to call them tomor-
row." According to Segal, Campiotti got red in the face
when the use of the word "turkey" was questioned, and he
(Campiotti) said, "Well, it's better to call them mother fuck-
ers or assholes like you" (sic). According to Segal, as Cam-
piotti made this statement he thrust out his left arm "and
knocked me off balance. At that point I hit the man." Ac-
cording to Campiotti's testimony, as he was talking to Segal
about calling the men at home, he said, "Well, I'm going to
continue to do it because I got to get these people to come
to work so I can service people, serve these people."' At
that point, Campiotti said that he was looking down at the
list of names of people who had been out quite a bit and
was going to give Segal the names when he heard Segal say,
"You've been fucking these people long enough." As he
looked up. Segal punched him in the jaw. Segal hit Campi-
otti several times.
According to Tony Renney, who was doing some assem-
bly work across from Van's office, he saw Campiotti push
the committeeman, and then I (Renney) saw the commit-
teeman hitting him. According to Renney, the general fore-
man was calling for help. He called for Van Cook, the fore-
man. Renney said that he and an employee named Michael
Mayes broke up the fight. "I [Renneyj grabbed Louie Segal,
you know, because he had the committeeman-he had the
'1 Part of the difficulty between Segal and the foreman stemmed from the
fact that Segal could not get men relieved from their jobs in order to talk to
them about their grievances. The relief problem was complicated by the
excessive absences, which tended to tie up the trainer and relief men as they
filled in for the absentees.
1190
GM ASSEMBLY DIV.
general foreman over the desk, you know, so I grabbed him
and I took him outside" (meaning outside the office).
William Powers, a labor relations supervisor, testified
that he received word that Campiotti had been beaten up
by Segal, and he investigated the incident. He stated that he
talked the Campiotti, who told him, "that Mr. Segal had
come up to the office, had been discussing something with
him, had been discussing specifically the calling at home of
other employees and, while engaged in this conversation, he
was holding some call slips in his hand, the one hand, and
some other papers in another hand, and Mr. Segal had hit
him." Following this quick explanation Powers suggested
they all adjourn to the production office where it would be
quieter. Segal asked for union representation. Powers said
that there was some difficulty in getting the particular rep-
resentation Segal had requested, because a number of the
committeemen had not returned to work from their Detroit
trip (see supra).
According to Powers, while they waited for a committee-
man to show up Campiotti indicated that he did not feel
well, and he left to go to the medical office. Campiotti re-
turned with an icepack on his jaw and complained of a cut
inside his mouth that was bothering him.
Very shortly committeemen Briscoe Allen and Steve Coe
appeared, and they talked privately with Segal for 15 or 20
minutes. Following this conference between the committee-
men and Segal, Powers sought to obtain Segal's version of
the incident. Segal refused to give a statement, and the
committeemen refused to aid in the investigation, contend-
ing they were too inexperienced to handle it. Powers testi-
fied that he explained the importance of getting Segal's ver-
sion, "and I pointed out to them that any, any mitigation,
any provocation would be a factor that I would, you know.
take into consideration as we reviewed the case." Finally.
Richard Monice, an alternate zone committeeman, ap-
peared on the scene. However, all of the union people con-
tinued to refuse to make any kind of statement or answer
any questions.
Segal's foreman, Clifford Inman, was called, and based
on the recommendation of Powers, Segal was "suspended
pending final determination" of penalty. Powers said that in
an assault case the penalty is discharge, unequivocally. (See
Resp. Exh. 9 for copy of suspension and Resp. Exh. 10 for
the discharge notice.) Between December 2 and 9 represen-
tatives from the labor relations office sought to interview
anyone in the area of Van Cook's office who might have
seen or heard the fracas. Respondent was unable to find
any witnesses that contradicted Campiotti's version of the
facts. (Although Renney gave a slightly different version at
trial, he acknowledged that he refused to give any informa-
tion to the labor relations section investigators.) Powers tes-
tified that after completing his investigation he discussed
the matter with Segal's superintendent, Don Smith, and his
recommendation of discharge was followed. Powers identi-
fied Respondent Exhibit I1 as a grievance filed by the
Union on behalf of Segal. The grievance was settled prior
to arbitration by the Union withdrawing the grievance.
Dr. Hunter Smith, Respondent's industrial physician,
identified Campiotti's medical history concerning this inci-
dent (Resp. Exh. 6), and related that Campiotti had suf-
fered pain and swelling on the left side of jaw, abrasions of
the left wrist, contused left ribs, and hematoma left side of
parietal bone.
3. The 8(a)( ) allegations
There are two rather separate and distinct aspects of
Case 1112. The complaint alleges (par. VI (a) and (b)) that
Foreman Clem Holquin "harassed an employee by hiding
his grievance book" and "threatened an employee with job
loss" in violation of Section 8(a)(1) of the Act. The second
aspect concerns the motive for the discharge of Louis Segal.
Holquin testified to having taken the logbook' belonging
to Segal and hiding it in his locker. Later Holquin threw the
logbook away. This incident occurred, according to Hol-
quin, after Segal started serving regularly as a committee-
man because Segal was not assigned to Holquin's section,
and Holquin felt that the logbook should be maintained in
the office of the foreman under whom Segal was assigned.
The idea of moving the logbook was Holquin's (not Campi-
otti's), and Holquin never told Campiotti what he had done
with the book. Holquin also testified that he had physically
threatened an employee and told him he was going to fire
him after the employee had filed a grievance against Hol-
quin.15 On another occasion Holquin testified that he
threatened Anthony Juarez with physical violence for fail-
ing "to insert a rubber seal in the door." According to Hol-
quin, when he advised Campiotti of what he had done
Campiotti made no comment.
Campiotti denied ever suggesting or encouraging Hol-
quin to threaten employees. Campiotti testified that Hol-
quin was a good foreman, but that he had "people prob-
lems." Respondent supported Campiotti's testimony by
offering Respondent Exhibit 8-a performance appraisal of
Holquin by Campiotti covering the year 1976 which
shows that Campiotti rated Holquin well below standard in
"ability to work with others."'
Analysis and Disposition of the 8(a)(1) Allegations
While Holquin must be regarded as an intelligent, con-
vincing witness, he cannot be credited. He admittedly was
discharged by Respondent for lying; it is logical that be-
cause he was discharged his testimony would be unfavor-
able toward Respondent whenever possible. Moreover, his
testimony is in direct conflict with Tony DeJesus, the cur-
rent president of the Union, as well as that of Campiotti.
But even if his testimony were to be believed his conduct
"4 The logbook is a record of calls normally maintained in the office of the
foreman under whom the committeeman's job assignment would normally
fall. The foreman records calls or requests by employees to see their commit-
teeman on the log. The committeeman then checks the log to ascertain the
names of employees who have problems they wish to discuss.
ml The employee, however, was not particularly intimidated because, ac-
cording to Holquin, the employee immediately found his committeeman and
filed another grievance concerning Holquin's threat.
6 The General Counsel sought to show that Holquin's attitude toward
people stemmed from Campiotti by offering the 1977 appraisal form for
Holquin that was done by General Foreman Floyd Conners, Jr. (G.C Exh.
5). However, even the 1977 otherwise very favorable appraisal form states,
"some labor relations training would increase Supervisor Holquin's effective-
ness." In my opinion, G.C Exh. 5 tends to support Campiotti's testimony
and the accuracy of his 1976 appraisal of Holquin. Holquin did not have a
good working relationship with the committeemen.
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward Segal, as well as other committeemen, cannot be
attributed to Campiotti. Holquin testified that it was Kjens-
rud, then the superintendent, who told him "that Depart-
ment 26 was the shits.... That the employees had taken
over the department, that they were doing what they
damned well pleased, and that the supervisor wasn't able to
make [sic] them under control.... He [Kjensrud] told me to
go down there and straighten the department, fire who I
had to fire, and get it turned around .... " Holquin also
testified that Kjensrud, in the presence of Campiotti, repri-
manded him and warned him that "if I [Holquin] failed to
cooperate with the Union I would be subject to removal
from supervision."
I find and conclude that Holquin's testimony cannot be
relied upon, but even more importantly, his conduct-re-
gardless of its merit in finding an 8(a)(1) violation-cannot
be attributed to Campiotti in support of the General Coun-
sel's theory that the Charging Party was provoked into at-
tacking Campiotti.
There is a more important basis, however, for dismissing
the alleged 8(a)(1) violation as contained in this complaint.
A settlement agreement was reached between Respondent
and the General Counsel in June 1978, covering several
individual Charging Party cases. There settlement agree-
ment not only included backpay for several named individ-
uals but also the posting of a lengthy and comprehensive
8(a)(1) notice by Respondent.
A companion complaint to those included in the settle-
ment agreement, Case 32-CA-608, went to trial in May
and June 1978, and Administrative Law Judge Jerrold Sha-
piro's Decision was issued on October 5, 1978. No excep-
tions were filed, and the Board issued its Order on Decem-
ber 4, 1978. The charge in that case was filed on March 27,
1977, and the complaint included, inter alia, the following
allegation: "On or about March 23, 1977, Respondent, by
Clem Holquin, at its Fremont, California facility, physically
prevented and interfered with a shop committeeman in his
handling and/or processing of an employee's grievance."
Judge Shapiro found in his Decision that:
Foreman Holquin viewed the local union and its repre-
sentatives with hostility and was antagonistic toward
the contractual grievance procedure. Holquin threat-
ened employee Valdez with discharge and physical
abuse because he filed a grievance against Holquin
with a local union comitteeman and, in the presence of
Valdez and the committeeman, threw Valdez' griev-
ance papers into a trash can. In addition, Holquin or-
dered the president of the local union to stay out of
Holquin's department and, when a local union com-
mitteeman advised him that he was violating the col-
lective-bargaining agreement, Holquin, in the presence
of an employee, stated in substance that the local
union was only interested in the employees' money and
not in representing them. Also, Holquin attempted to
obstruct employee Johnson from filing a grievance by
threatening her with discipline. In short, the undisput-
ed evidence reveals that Holquin was extremely hostile
toward the local union and its representatives in their
role as the employees' collective-bargaining representa-
tive.
The 8(a)(l) allegations contained in the instant case oc-
curred well within the 10(b) period from the date the charge
was filed in Case 608.17 Moreover, based upon the factual
conclusions as taken from Judge Shapiro's Decision and
quoted above, it would appear that some of the testimony
elicited in the case heard by him was duplicated in the
instant case, i.e., Holquin's testimony concerning the Val-
dez threat.
The 8(a)(l) allegations relating to Holquin's conduct in
the instant case are not only stale but could have and
should have been fully litigated in Case 32-CA-608. Fur-
thermore, as is readily revealed by a reading of the notice
that was posted following the settlement agreement be-
tween Respondent and the General Counsel, the type of
conduct complained of herein was clearly remedied in the
settlement notice that was posted by Respondent. Addition-
ally, Clem Holquin was discharged by Respondent in Janu-
ary 1978, and nothing would be gained by posting a notice
concerning possible misconduct by an ex-employee that oc-
curred 3 years previously. It is clear that General Counsel
could have litigated all of the questionable misconduct of
Foreman Clem Holquin in Case 32-CA-608; General
Counsel did in fact obtain the remedy in the settlement
agreements of Case 32-CA 420, et al., which he now seeks
in this case. Accordingly, I shall recommend that the allega-
tions of conduct violative of Section 8(a)(1) of the Act be
dismissed."
Analysis and Conclusions With Regard to Discharge of
Lewis Segal
The Act provides an adequate and total remedy for all of
the conduct which General Counsel contends was sufficient
provocation to justify Segal's assault on Campiotti. (See
"Appendix B" attached hereto, which contains the relevant
portions of the settlements notice posted by Respondent in
order to remedy exactly the same kind of conduct about
which Segal complained herein. The settlement notice was
to remedy events which were occurring to other committee-
men in the same general time frame.) A fundamental prin-
ciple of the Act is to establish a set of rules and an arena
within which the industrial relations principle may function
in a civilized manner. There is no place within rational in-
dustrial relations or within the law that permits the resolu-
tion of differences by fighting. The Act was never intended
to foster anarchy. Other committeemen who had similar
problems to those complained of by Segal found solutions
by functioning within the system and not resorting to phys-
ical violence. I find and conclude that Segal was the aggres-
sor in an unprovoked physical assault on Larry Campiotti
that resulted in Campiotti suffering considerable pain and
discomfort." The discharge of Segal was not discriminator-
7 The relevant portion of Sec. 10(b) of the Act reads as follows: "Pro-
vided, that no complaint shall issue based upon any unfair labor practice
occurring more than 6 months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom such charge
is made .... "
'i Marland One-Way Clutch Co., Inc., 200 NLRB 316, 320 (1972), and
cases cited therein.
I' While the Board is in no way bound by the grievance settlement be-
tween the parties when the Act has been violated, nevertheless, it is notewor-
thy that the Union was not sufficiently impressed with Segal's story to take
1192
GM ASSEMBLY DIV.
ily motivated but, to the contrary, was fully justified and
warranted under the circumstances. Moreover, even if one
were to give some credence to the illegal conduct of Fore-
man Clem Holquin, on the basis of this record, Holquin's
illegal conduct cannot be attributed to Campiotti, the gen-
eral foreman who suffered the attack.
There is an additional reason for recommending dis-
missal of the Segal discharge aspect of this complaint. The
evidence is undisputed that Respondent's labor relations
representative made every reasonable effort to fully investi-
gate all of the circumstances surrounding the fight between
Segal and Campiotti that occurred on the evening of April
15. Segal and the union representatives-as many as three
at one time-refused to make any statement as to the cause
or circumstances of events which precipitated the fight. Nor
was it possible to obtain any information from any of Se-
gal's fellow employees who may have seen what occurred
on the evening of April 15. Under such circumstances
where Respondent has made a reasonable and diligent ef-
fort to gather all of the available facts and where those facts
point to an unprovoked assault on the part of a rank-and-
file employee of his general foreman, primarily because the
union representatives and the employee participant have
elected to remain silent and totally uncooperative, it can
hardly be said that the motive was for discriminatory rea-
sons. Here the Company acted in good faith, based on all
the available evidence.
I have examined a number of the cases cited by the Gen-
eral Counsel and have found them to be inapposite. For
example, in Fox & Jacobs, Inc., 221 NLRB 1159 (1975),
there was no fight involved, and the two employees who
were ordered to be reinstated were found to have been dis-
charged for purely pretextual reasons. In J. H. Patterson
Company, 217 NLRB 1030 (1975), a fight was involved and
the employee involved was reinstated, but it was based on
the fact that the Administrative Law Judge found and con-
cluded that the employee involved was not the aggressor
but was merely involved in defending himself, and that the
employer had seized on the incident as a pretext for dis-
charge. General Counsel's citation of Joseph T. Ryerson &
Sons, Inc., 199 NLRB 461 (1972), as supportive of the
proposition that hostile treatment toward a union commit-
teeman is violative of the Act is accurate and well estab-
lished Board law. But it is the very reason that Segal was
wrong in his physical assault of a supervisor-he had a
remedy available to him under the Act and there was no
excuse for his conduct.
The Act was not designed to protect those who viciously
attack their supervisors. The fact that the attacker is an
active union adherent or union official, and/or whether an
employer wished to be rid of him does not alter the law. As
I have found earlier herein, clearly as a committeeman Se-
gal was persona non grata with Respondent. But, as the
Board said in P. G. Berland Paint City, Inc.. 199 NLRB 927,
927-928 (1972):
the controversy or grievance to arbitration. Segal's grievance was withdrawn
prior to the final step.
On the record it is fair to assume that the Respon-
dent entertained a desire to get rid of Robbins, whose
union activities it resented, and was pleased to have an
opportunity present itself for doing so. But that alone
is not enough to establish that the discharge was in
violation of Section 8(a)(3). The mere fact that an em-
ployer may want to part company with an employee
whose union activities have made him persona non
grata does not per se establish that a subsequent dis-
charge of that employee must be unlawfully discrimi-
natory. If the employee himself obliges his employer
by providing a valid independent reason for dis-
charge-i.e., by engaging in conduct for which he
would have been discharged anyway his discharge
cannot properly be labeled a pretext and ruled unlaw-
ful.
Save where the reason itself is unlawful, it is not for
the Board to substitute its judgment for that of man-
agement as to what constitutes proper cause for dis-
charge. Unless the ground advanced is inherently im-
plausible, is unsupported by credible evidence, or is
proved by the record to have been used disparately on
the basis of unlawful considerations, its rejection by
the Board is unwarranted.
In the instant case the ground advanced for Segal's dis-
charge was certainly not inherently implausible, nor is it
unsupported by the credible evidence. Nor does the record
indicate that Segal's discharge was disparate or discrimina-
tory. There is no evidence similar conduct has ever been
condoned by Respondent.
I shall recommend dismissal of the complaint in its en-
tirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. The General Counsel has failed to prove by a prepon-
derance of the evidence that Respondent has violated the
Act as alleged in either of the two companion cases-32-
CA-139 and/or 32-CA-1112.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record and pursuant to Section
10(c) of the Act I hereby issue the following recommended:
ORDER 2
The complaint is hereby dismissed in its entirety for lack
of merit.
2O In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1193