Local 365, UAW

National Labor Relations Board - Board Decisions

Mar 13, 1972

195 N.L.R.B. 835 (N.L.R.B. 1972)

LOCAL 365, UAW 835
Local 365 , United Automobile Aerospace and Agricul-
tural Implement Workers of America , United Au-
tomobile Workers and Connie Ferrigno . Case 29-
CA-2331
March 13, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On September 22, 1971, Trial Examiner Marion C.
Ladwig issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and a
supporting 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 Trial
Examiner's Decision in the light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent herewith.
We conclude, contrary to the Trial Examiner, that
the Union did not violate Section 8(a)(1) and (3) of the
Act by denying its employee Connie Ferrigno 18 weeks
of severance pay because of her earlier strike activity
against the Union. In support of this conclusion, we
rely on the following salient facts found by the Trial
Examiner:
In 1956, at the time the Union moved from Long
Island City to Brooklyn, it made an agreement with
employees who declined to move to pay them severance
pay computed on the basis of 1 week's wages for each
year of service they rendered. Connie Ferrigno, the
alleged discriminatee,, and one other employee' were
the only employees who moved to Brooklyn with the
Respondent. Following the move, Ferrigno and Cicala,
the Union's president, individually reached an agree-
ment which, the Trial Examiner found, provided that
Ferrigno would receive severance pay of 1 week's pay
for each year of Ferrigno's employment, for however
long she was employed. The Respondent contends that
there was no such agreement and that even if there
were, the agreement was to extend only for a reasonable
period to enable Ferrigno to determine whether she
intended to stay on her job, and in any event no longer
than the date of her resignation, in the event she deter-
mined the job was not to her liking. As noted below,
we find it unnecessary to resolve this factual issue.
In 1958, the Office Workers became the representa-
tive of the Union's office clerical employees, including
Ferrigno, and has continued to represent them ever
' Employee Helen Torres also made the move.
195 NLRB No. 148
since.' The first contract contained no severance pay
provision.
In 1964, Ferrigno, as chief shop chairlady and a
member of the negotiating committee for the Office
Workers, sought to include in a new contract under
negotiation severance pay provision which the Re-
spondent first refused to entertain but later accepted.
However, when the negotiating committee presented
the contract proposals to the employees in the bargain-
ing unit for ratification, they rejected the severance pay
provision and voted instead, over Ferrigno's protests,
to take the cash equivalent as a salary increase, which
they and Ferrigno in fact received.
In January 1968, following an impasse in negotia-
tions, Ferrigno and the other employees in the Office
Workers bargaining unit engaged in a 6-day strike.
Ferrigno at that time no longer represented the em-
ployees in the bargaining unit and was not a strike
leader. In November 1969, Ferrigno wrote the Re-
spondent a letter, characterized by the Trial Examiner,
contrary to the Respondent, as a resignation, and
which we shall assume, but without deciding, had that
legal effect. The letter requested 18 weeks of severance
pay, covering the 18-year period of Ferrigno's employ-
ment by `the Respondent. In January 1971, the Re-
spondent replied, stating in effect that it considered
Ferrigno still on sick leave, but without mentioning the
subject of her, severance pay.
Absent any evidence that the assumed 1956 oral
agreement between Ferrigno and Cicala was the result
of concerted activity, we must assume that it was a
purely private agreement between Ferrigno and the
Respondent. This being so, the 1958 collective-bargain-
ing contract between the Respondent and the Office
Workers in behalf of the Respondent's office em-
ployees, including Ferrigno, in our opinion would ap-
pear to have effectively terminated the preexisting pri-
vate severance pay agreement,between the Respondent
and Ferrigno alone. In any, event, there can be no doubt
that Ferrigno's alleged, private agreement was ter-
minated in 1964 when a severance pay provision was
fully discussed and accepted by the Respondent, but
then rejected by the Office Workers' membership. In
our opinion, a contrary result, by specifically condon-
ing discriminatory treatment favoring a single in-
dividual in a bargaining unit in regard to a condition
of employment affecting all members of the unit would
serve only to contravene the basic principles of collec-
tive bargaining. Whether or not Ferrigno is entitled to
severance pay for the period of her employment by the
Respondent before the advent of collective bargaining
3 Local 153 , Office and Professional Employees International Union,
AFL-CIO. The 1958 contract was between the Respondent and Local 344
of the Office Workers , which during the contract term became Local 153 of
the Office Workers.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is a matter which we find it unnecessary to decide. Not
only does the alleged right to severance pay not mature
until the actual severance occurs, but; more impor-
tantly, the agreement, if indeed such agreement existed,
which preceded collective bargaining, is in our view a
purely 'private one, to be interpreted and resolved by
Ferrigno and the Union alone.'
Accordingly, we find that the Respondent commit-
ted, none of the unfair labor practices alleged in the
complaint, and we shall therefore dismiss the instant
complaint in its entirety.
ORDER
It is hereby ordered that the instant complaint be,
and the same hereby is, dismissed in its entirety.
' For these reasons, and contrary to the Trial Examiner, we accord no
weight to the fact that Helen Torres, never, a member of the Office Workers
bargaining unit, received severance pay for the period of her employment,
which terminated several years after the Respondent's move to Brooklyn.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was tried
at Brooklyn, New York, on June 14 -17 and July 27, 1971.
The charge was filed on March 26, 1971, by an individual,
Connie Ferrigno, and was served March 29 on the Respond-
ent, Local 365, United Automobile Aerospace and Agricul-
tural Implement Workers of America, United Automobile
Workers, herein called the Union. The complaint was issued
on April 26, 1971. The primary issue is whether the Union
refused to pay office employee Ferrigno, upon her resigna-
tion, 18 weeks of severance pay because of her prior strike
activity against the Union, in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
brief filed by the Union, I make the following:
FINDINGS OF FACT
I JURISDICTION
The Union is a labor organization with its principal office
in Brooklyn , New York, where it annually receives dues, fees,
fines, and other contributions in excess of $50 ,000 from its
members, and remits dues and fees in excess of $50,000 to its
International located in Detroit, Michigan . The Umon ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the representative of its office clerical employees, Local
153, Office and Professional Employees International Union,
AFL-CIO, herein called the Office Employees Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
II ALLEGED UNFAIR LABOR PRACTICES
A. Promise of Severance Pay
In 1956 , before the Union 's office clerical employees were
represented by the Office Employees Union, the Union moved
its office from Long Island City to Brooklyn . The Union
invited its five or six clerical employees to go with the office
to the new location . In the discussions that followed, the
question was raised whether the employees would, lose their
severance pay if they declined to,go. Union President Marco
Cicala admittedly consulted the Union's other administrative
officers, and the decision was made to proceed to pay the
customary severance pay-of 1 week for each year of employ-
ment-to those who declined to make the move. All except
two of the employees resigned and received the severance pay
which, in one case, amounted to 16 weeks. The evidence is in
dispute what the remaining two employees, Charging Party
Connie Ferrigno and another, were told about severance pay.
According to Mrs. Ferrigno, who had been employed since
March 1952, she personally asked President Cicala about
being-paid severance pay if-she moved with the Union to
Brooklyn. Cicala answered that she would get "the same
thing" as the girls who were resigning, "that when the time
came for me to leave," she would get I week of severance pay
for each year of employment. Then, on the day of the move,
as they were unpacking in the new Brooklyn office, Cicala
came into the room and Ferrigno commented, "This is some
moving job, I just hope it is worth-it, and that you keep your
word" about the severance pay. Cicala responded, "I sure
will.... There's only Helen Torres,and you of the old girls.
When the time comes to leave, you two girls will be treated
like the, old girls. The new girls will be treated differently."
President Cicala gave conflicting versions of what hap-
pened. In his pretrial affidavit he asserted, "I did not promise
severance pay to Mrs. Ferrign'o or to anyone else. To the best
of my knowledge no other officer of Local 365 UAW prom-
ised severance pay to Mrs. Ferrigno or to anyone else." When
called as a defense witness, Cicala first testified about the
decision to give severance pay to those leaving at the time of
the, 1956 move. He then testified - that he told the clerical
employees that if they would go to Brooklyn and try it out
for a while, and it did not workout, that "I would do every-
thing in my power to see they would get what we promised
them in Long Island City." Later, on cross-examination, he
gave still a further version. He testified, "I promised them in
Long Island City that if they came with us and tried it and
then after trying it for awhile decided that they,could not
. continue ... they would get their week's severance pay
for each year's service. This is what I promised." (Emphasis
supplied.) He denied making any special commitment to Fer-
rigno. Thus, according to Cicala, the Union gave severance
pay to the departing clerical employees, but made no promise
of severance, pay "to Mrs. Ferrigno or to anyone else" or told
those going to Brooklyn with the move that he would "do
everything in my power" to` see that they got the'severance
pay if it did not work out or, definitely promised them' that
in that event they, would be paid the- severance pay. This
would mean that the Union decided to, give severance pay to
those who were not willing to move to Brooklyn and (accord-
ing to the latter two versions) to give severance pay also to
those-who might resign' shortly after the, move, but that the
Union made no promise of severance pay to those who were
willing to make the move and work permanently for the
Union.
Other evidence in the case tends to support Charging Party
Ferrigno's testimony that she and Helen Torres' were prom-
ised severance pay for making the move and continuing to
work. Seven,years later in 1963, apparently pursuant to this
promise, the Union paid Torres 9 weeks of severance pay for
her 9 years of service when she resigned. Furthermore, Fer-
rigno had mentioned this promised Severance pay several
times before her resignation in 1970. International Represent-
ative Thomas DeLorenzo (whose status with, the Union is
discussed later) testified that on two or three occasions, begin-
ning in the early 1960's, Ferrigno mentioned that President
Cicala had promised her severance pay. Moreover, having
LOCAL 365, UAW 837
considered the fact that the Union in 1956 was attempting to
persuade its clerical employees to make the move to Brooklyn
-and did give severance pay to those who refused-I find it
more likely that the Union did promise severance pay to those
who would make the move and remain in its employment.
Furthermore, by her demeanor on the stand, Ferrigno im-
pressed me as the more trustworthy witness. I therefore credit
her testimony concerning the promised severance pay and
discredit Cicala's denials.
B. Negotiations
Beginning in 1958, 2 years after the move, the Union has
dealt with the Office Employees Union as the representative
of the office clerical employees. No severance pay provision
has been included in the collective-bargaining agreements. In
the 1964 negotiations, the Office Employees Union, and Fer-
rigno as the chief shop chairlady, sought not only a severance
pay provision but also apension plan in the agreement, cover-
ing all the office employees. The Union agreed to offer a
pension plan, with some severance pay, but the majority of
the office clerical employees then voted to take the cash
equivalent as a salary increase (over Ferrigno's protests).
However, there was no mention during any of the negotia-
tions of nullifying the Union's promise to continue Ferrigno's
1-week-per-year severance pay if she would make the move
to Brooklyn. I_ therefore reject the Union's contention that
even if the promise of severance pay had been made to Mrs.
Ferrigno the Office Employees Union has thereafter waived
it.
C. Strike Against Union
1. Threats Against Ferrigno for Striking
In January 1968, negotiations reached an impasse and the
Office Employees Union went on strike against the Union.
Before the strike began, as credibly testified by Charging
Party Ferrigno, Union Financial Secretary-Treasurer Ann
Mazzacaro telephoned Ferrigno at her home and "said to me
that if the girls go out on a strike and they walk, when they
come back they will be fired ... and that if I did go out on
strike I wouldn't get my time off" after her vacation. Ferrigno
responded that she had to walk with the girls if they decided
to walk: that she was their representative. (Mazzacaro, who
did not testify, was reportedly in bad health at the time of trial
and therefore not available to testify.) The reference to Fer-
rigno's "time off" was to the 6 week's unpaid leave of absence
which the Union had been granting her to be taken at the end
of her annual wintertime vacation, spent at her home in
Florida.
The strike began on January 15, 1968. On January 22,
Charging Party Ferrigno telephoned International Repre-
sentative DeLorenzo, reported the telephone calls Ferrigno
and some of the other girls had received from Secretary-
Treasurer Mazzacaro, and stated "we wanted to have the
strike ended because we just didn't think it was right for a
local union to have girls walking out on a picket line." DeLo-
renzo met with the strikers. First disclaiming belief that Maz-
zacaro would make the threatening calls, DeLorenzo then
"said he would go back and there would be an offer made if
we would take it, and we said we would and that is how the
strike ended." He promised that "as long as you do your jobs
nobody will be fired and there wouldn't be any repercus-
sions." (DeLorenzo, who had been president of the Union
before becoming an International representative, remained
active in the affairs of the Union. He had a desk in the Union's
office, utilized and helped direct the clerical staff, acted as a
member of the Union's administrative committee (consisting
of top officers of the local union), and participated in making
decisions and formulating policy for the Union. I find that in
this capacity he was an agent of the Union.) The employees
returned to work on January 23, 1968, and Ferrigno was
permitted to take the customary 6-week leave of absence
following her 3-week vacation.
When Ferrigno returned 9 weeks later, as she credibly
testified, "tension there was very high ... None of the execu-
tives really were talking or bothering with any of the girls
because of the strike ... There were remarks going around
the office" that she would not be given the time off any more.
Several months later, near the end of 1968, the union offi-
cials were still talking about the strike. As Ferrigno credibly
testified, Secretary-Treasurer Mazzacaro "called me again at
home about the early part of December and she told me that
she wanted to know who the girl was that sent the telegram
to [International President] Walter Reuther" "and "who was
the instigator of the strike ... and if I didn't tell her most
likely I wouldn't get my time off." Ferrigno said she could not
tell her. Later, at work, Mazzacaro went to Ferrigno's desk
and told her to come to Mazzacaro's office, that President
Cicala wanted to talk to her. There, in the presence of Maz-
zacaro, Cicala notified Ferrigno that she could not have the
leave of absence any more, because she had walked in the
strike and "stabbed me in the back." As previously indicated,
Mazzacaro did not testify. Cicala first testified that he called
Ferrigno into the office and asked her if she was going to go
away for 9 weeks, and she said she was taking her usual
vacation time. "We got in a discussion and I told her that I
could not permit it" because of complaints the last time from
other girls in the office. Later he changed his testimony and
claimed that he had already told her after she returned from
her 1968 vacation that "she would not be able to have an
extended leave of absence any more," and that when he called
her into the office before her 1969 vacation, he told her "the
word was in the office that she was going to take the nine
weeks, whether I like it or not." He impressed me as attempt-
ing to give testimony which would help the Union's cause,
rather than attempting to give a factual account of what
happened. I discredit his and credit Ferrigno's version.
2. Discharge and Reinstatement of Ferrigno
In January 1969, Charging Party Ferrigno became ill, and
she asked for a disability form, which her doctor sent to the
Union. Questioning the diagnosis, the Union set her up for
an examination before she left on vacation. Then while she
was taking her 3-week vacation, the Union notified her that
she was "due back" on February 18. Ten days later, President
Cicala wrote her again, informing her that "we have ter-
minated your employment as of the close of business today,
February 28th, 1969." Upon returning to New York, she filed
a charge (in an earlier proceeding). Finally, in November
1969, the Union reinstated her, agreeing to pay her medical
bills through September 7 and to permit her to take the
extended leave in 1970 and 1971. She then withdrew the
earlier charge. As promised, the Union granted her 9 weeks
of vacation and leave in the winter of 1970. She returned to
work in late March 1970 and became ill again "in May and
went on sick leave.
D. Denial of Severance Pay
On November 20, 1970, Charging Party Ferrigno resigned
in a letter written to International Representative DeLo-
renzo. She stated in the letter that she was still ill and not able
to work, that her 26 weeks of disability had ended, and that
she did want her job, "but my health at this time warrants
immediate attention." She asked that she be paid her 18
weeks of severance pay, "one week for each year of service,"
as she had been promised.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 3, 1971, not having received any response from
the Union, Ferrigno wrote the Office Employees Union, re-
questing assistance in getting the severance pay and other
benefits. On January 11, Union Secretary-Treasurer Maz-
zacaro wrote Ferrigno a letter, acknowledging her request to
have her account brought up to date. Although responding
to the request for other benefits, Mazzacaro's letter ignored
Ferrigno's resignation and her request for severance pay.
Later, on May 19, International Representative DeLo-
renzo (an agent of the Union) revealed to a former office
employee, Imogene Patten, why the Union had declined to
give Ferrigno her severance pay. DeLorenzo was visiting Pat-
ten's home in Arizona when Patten asked him, "What are
you guys doing to Connie [Ferrigno]? ... how come she lost
her job, how come you didn't pay her her severance pay?"
After answering that Ferrigno had been,sick and that the
Union had permitted her to collect her disability insurance,
"he said that the girls in the local union had organized into
a union and that there had been a strike and that there were
bad feelings after the strike." DeLorenzo admitted to Patten
that Ferrigno "had written a letter to him and he had not
answered it and that as far as he was concerned the whole
thing was over and done with and that was the end of it." (I
credit this account of the conversation, given by Mrs. Patten
and discredit the version given by DeLorenzo, who gave
obviously contradictory testimony.)
E. Concluding Findings
Contrary to the Union's contentions, I find the General
Counsel has, proved by a preponderance of the evidence that
the Union declined to give Charging Party Ferrigno her 18
weeks of severance pay because of her 1968 strike activity
against the Union. As found, Ferrigno was threatened both
before and after she went on strike, and there is substantial
evidence of hard feelings resulting from the strike. I therefore
find, as alleged in the complaint, that the-Union has failed and
refused to give Ferrigno the 18 weeks of severance pay to
which she was entitled because,of her, protected concerted
activity, in violation of Section 8(a)(1) of the Act. I do not
deem it necessary to decide whether the Union's conduct also
violated Section 8(a)(3), inasmuch as the remedy would be
the same. (Even if Ferrigno had offered unsuccessfully to
resign earlier if given severance, pay, she was not entitled to
the severance pay until her resignation or termination was
effectuated. I therefore reject the Union's further contention
that the charge herein, filed within 6 months of her November
20, 1970, resignation , was untimely.)
CONCLUSIONS OF LAW
By failing and refusing on and since November 23, 1970,
to give Connie Ferrigno her 18 week's of severance pay be-
cause of her earlier strike activity against it, the Union en-
gaged in an unfair labor practice affecting commerce within
the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and desist
from the unfair labor practice found and from like or related
invasions of the employees' Section 7 rights; to compensate
Connie Ferrigno for the 18 weeks of severance pay withheld
from her since November 23, 1970, plus interest at 6 percent
per annum as prescribed by Isis Plumbing & Heating Co., 138
NLRB 716 (1962); and to post an appropnate notice.
[Recommended Order omitted from publication.]