Local No. 1268, UAW

National Labor Relations Board - Board Decisions

Oct 22, 1971

193 N.L.R.B. 898 (N.L.R.B. 1971)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No . 1268, United Automobile , Aerospace and
Agricultural Implemental Workers of America
(Chrysler Corporation) and Elbert Person. Case
38-CB-307
October 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On June 4, 1971, Trial Examiner Eugene F. Frey
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in alleged
unfair labor practices and recommended that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision with a supporting brief. The
Respondent filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: This case was tried
before me in Belvidere, Illinois, on January 27 and 28, and
February 18, 1971, following pretrial proceedings in
compliance with the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act),
and involves the issues whether Respondent, the above-
named Union, I coerced employees of Chrysler Corporation
i Herein Local 1268 is called the Union , while the parent organization is
called the UAW
2 The issues arise on a complaint issued November 5, 1970, by the
(herein called Chrysler or Employer) by refusing fairly and
properly to represent the Charging Party, Elbert Person, in
presentation of a grievance filed by him under a collective-
bargaining contract executed by the Union and Chrysler,
and caused Chrysler to deprive him of overtime work by
having his name removed from an overtime work list, in
violation of Section 8(b)(2) and 8(b)(1)(A) of the Act.2
General Counsel and Respondent participated in the trial
by counsel and Person appeared personally. At the trial, I
granted all parties an opportunity to file written beefs with
me on or before March 22, 1971. Briefs were received by me
on April 7 and 8, 1971, after an extension of time for filing
was granted by the Chief Trial Examiner.
Upon the entire record in the case, including my
observation of the witnesses on the stand and consideration
of arguments made during the trial and in written briefs, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF CHRYSLER AND STATUS OF
RESPONDENT
Chrysler is a Delaware corporation with an office and
place of business and plant located in Belvidere, Illinois,
which is the only plant involved in this case. It is engaged in
the manufacture and sale of automobiles. In the 12 months
prior to issuance of the complaint, Chrysler had direct
outflow of finished products from its Belvidere plant valued
in excess of $50,000, and in the same period had direct
inflow to that plant of goods and materials valued over
$50,000. I find that Chrysler is and has been at all material
times herein an employer engaged in commerce within the
meaning of the Act.
Respondent Union is a labor organization within the
meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Since November 1967, and at all times mentioned in this
Decision, Chrysler and the Union have been operating
under a collective-bargaining agreement recognizing Res-
pondent as the collective-bargaining agent of a unit of
production and maintenance employees at the Belvidere
plant. A portion of the contract provides for a "paid
absence allowance" up to 40 hours for employees with
seniority of a year or more and who have worked at 26 pay
periods in a vacation eligibility year ending with the prior
May 1. The percent of such payment payable ranges from
100 percent for 26 pay periods worked down to 50 percent
for 13 periods worked.
The grievance procedure in the contract is briefly as
follows:
Step 1: Employee presents grievance orally through
his chief steward to foreman; if not adjusted there,
Step 2: Chief steward gives written grievance to
foreman, with copy to plant shop committee, whose
Board's Regional Director for Region 38, after Board investigation of a
charge filed by Person on September 16, 1970
193 NLRB No. 141
LOCAL NO. 1268, UAW 899
member discussed it with plant superintendent; if not
adjusted there,
Step 3: Shop committee discusses it with Labor
Relations Supervisor at scheduled meeting; if not
adjusted there,
Step 4: Shop committee refers grievance to union
officials for discussion with plant manager and other
employee officials; regional director of union or his
agent attends with one shop committeeman; if not
adjusted there,
The matter goes to a joint Appeal Board for
discussion with plant manager, corporate labor rela-
tions manager, and union officials.
The officers of the Union involved in the events
described below were: Sam Casazza, president; Lawrence
J. Reilly, chief steward; and Ronald J. Engstrom,
committeeman.
B. The Treatment of Person by the Union
1. Background relations between Person and the
Union
business at the time of and after his nomination and that he
knew nothing of the 7-day notice requirement which Bowie
outlined to him. Immediately thereafter he sent a formal
letter of acceptance of his nomination to the Union's
election committee and at the same time made a written
appeal to the UAW. After the election, he engaged in a
lengthy intraunion dispute with its officers about the
validity of the election, formally challenging the decision of
the union election committee denying him a place on the
ballot and the validity of the election of Engstrom for the
reasons previously stated to Bowie. He appealed to the
UAW executive board in accordance with UAW proce-
dures and after a hearing on August 29, 1969, an appeals
committee appointed by the executive board denied the
appeal and the board adopted that decision on October 29,
1969. Person then filed suit against the Union in a United
States District Court, seeking an order setting aside the
election and requiring a new one with his name on the
ballot. The court dismissed his complaint on May 20, 1970.
Since September 1969, Person has been an elected member
of the election committee of the Union.
Elbert Person has worked for Chrysler for over 17 years
in various plants. He transferred to the Belvidere plant
when it opened in 1965 from a plant in Wilmington,
Delaware, where he had been a member of and chief
steward of another UAW local
On transfer, Person first worked in the paint shop of
department 9130. In a union election in 1965, he was
elected chief union steward for that department, serving in
that capacity until April 1966. From the latter date to May
1969, he was an elected member of the Union's shop
committee , representing department 9130, and chairman of
that committee in the last year. Shop committeeman is an
important union job in the plant, superior to that of chief
department steward, for there were only six shop commit-
teemen for the whole plant employing about 4,600 union
members, as contrasted with about 21 department ste-
wards. Early in 1969, Person was nominated for the post of
shop committeeman for first and second shifts in depart-
ments 9130-9135 and inspection department 3210. Another
candidate for that post was Engstrom, who had been chief
steward for those departments succeeding Person from
1966 to April 1969. Engstrom won the post in the election of
May 1969 and still held it at the time of the hearings herein.
In the same election, Reilly was elected chief steward for
the same departments. Person' s name did not get on the
actual ballot in the election, because he was not present to
accept the committeeman nomination at the union meeting
when he was proposed, nor did he thereafter send the
Union a written acceptance of the nomination within a 7-
day period prescribed by its rules. Before the election,
Person had an argument with President Herbert Bowie of
the Union, claiming his name was improperly omitted from
the ballot while he was absent from the area on union
3 Paragraph 57(a)(I) of the contract provides
When the Corporation establishes work standards, by whatever
method it may select, it shall do so on the basis of fairness and equity
in that such standards shall be based on the reasonable working
capacities of normal experienced employees working at a normal pace
to produce quality work in the manner that the Company prescribes
2. The handling of Person's 1969 grievances
About October 27, 1969, Person was transferred from the
paint department to an inspection job in department 3210,
where his job was to inspect auto bodies for defects in paint
application and clip an inspection tag to each part of the
body where paint was defective. About 3 weeks after the
transfer, Person was given the added duty of marking such
defects on an inspection sheet. Person complained to
Foreman Terry Hoffman about the added record, claiming
the additional paperwork made too much work for him to
do. Hoffman replied that the records were part of his job,
and if he did not like it he could quit. Person stated his
opinion that "two fellows" wanted to make him quit;
however, he would not but would "try to do both of them."
About a day later, Person complained about the added
paperwork to Engstrom and Reilly. Engstrom said that,
since he asked for the inspection job, he would have to do
what it required, and the inspection sheet had been issued
by the plant manager. Person argued that if the added
record was needed, the employer should hire more men to
do it. Engstrom insisted he had to handle it. Person then
demanded that the Union have a timestudy of his job made,
and a grievance filed because of the extra workload.
Engstrom said he had nothing on which to write up a
grievance. Person said it could be filed under the "work
standards agreement" in the contract. Engstrom replied
that inspectors' work could not be timed.3 The Union never
filed a grievance with management on Person's complaint.
Subparagraph (2) recognizes the desirability of establishment of work
standards on new operations as early as feasible and provides for notice to
the proper union steward and the affected employee in advance when a
work study is to be made to establish a standard on a job and later notice
of the work standard when it is established.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Person's grievances in 1970
a. Retention during short workweek; the rechecking
job
In January 1970, almost the entire plant was operating on
a short workweek, with some complete production lines in
each department shut down for portions of a day and their
personnel sent home.4 Person had top seniority in his
classification and when his line was shut down, he was not
sent home but transferred with one other inspector, Mel
Shorter, who was second in seniority, to inspect on a repair
line in place of junior inspectors who were sent home.
Under the contract employees with high seniority who were
sent home on a layoff received 80 percent of their hourly
pay for each hour not worked, while workers of lower
seniority in the same classification were kept at work at
their regular rate of pay. Person and other high seniority
workers considered it more beneficial to them to be sent
home with 80 percent of pay rather than to stay at work at
full pay. However, in a shutdown during a short workweek,
management took the position that "inverse seniority" did
not apply and that it had the right to retain senior
employees on certain types of work On this shutdown
Person disagreed with the management position and on the
day of his transfer complained to Reilly and Engstrom
about his retention at work. Engstrom replied Person was
kept at work because of his high seniority since the
inspection department was retaining men for work by
seniority. Person charged that the inspection department
was not operating like other departments in this respect.
Engstrom said he did not know about that. Person told
Engstrom he wanted to talk directly to Plant Personnel
Manager Thomas Johnson about this, and Engstrom told
him to go ahead.
A day or so later, a rechecking job became available in
the inspection department. This was a newjob in which an
inspector made a final decision whether the car was ready
to go to another department or not. Person applied for it,
but did not get it. When he questioned the foreman,
Hoffman, about it, the latter said he would reassign
inspectors as he saw fit. Person at once complained to
Reilly and Engstrom that this was unfair, that he should
have the job by seniority. Reilly said he did not know if the
new job was open yet but would talk to Hoffman and find
out why he did not get it. Both union officials talked to
Hoffman and his supervisor, Bradley, requesting that the
job be filled by seniority as in the past. They replied that the
job was being started on a trial basis, and if they decided to
make it permanent , it would be rotated between three
inspectors rather than assigned to one alone. Reilly told
Person the same afternoon or next day what the plant
officials had said, and that Person and the Union should
wait to see if the Job continued or was dissolved.
A few days later Person reminded Engstrom that the
rechecking job had not been filled, asked when it would be.
Engstrom replied that "we" did not know yet how it would
be filled, or who would transfer into it. Person asked him to
file a grievance on it if thejob was not filled soon. Engstrom
4 For purposes of contract application, the Union and Chrysler
considered a short workweek as distinct from a formal layoff, but differed
suggested that Person wait a week and if it was not filled he
would file a written grievance on it for Person. Engstrom
did not contact him about it later or file any grievance on it,
and Person was not transferred to the job.
Person took both grievances about mid-January to Plant
Personnel Manager Tom Johnson. The meeting was
attended by William H. Ruback, plant labor relations
supervisor, Foreman Hoffman, and Engstrom. Person
outlined his complaint of discrimination in his failure to be
sent home on shutdown of his line according to past
practice and wanted this stopped. Ruback told Hoffman "it
should be done right," "we" did not want any trouble on
this, "I don't care how you do it, we don't want problems on
it." Johnson said the short workweek problem would end in
a day or so, but Person had been kept on by seniority.
When Person brought up the rechecking Job, Hoffman said
he would assign this work to three employees, each working
a week on it and 2 weeks off. Person complained this was
not fair, as seniority should apply, just as it had been
applied when he came to the department to take the place
of a top seniority man who went into the rechecking job.
The company officials agreed that had been the practice.
Engstrom then said he had talked with Chief Inspector
Bradley, and they agreed that job should be rotated.
Ruback told all he wanted the matter worked out "with no
problems." The rechecking job was eliminated about a
week later. About a month after that it was reinstated with
a single employee holding it, but at that time Person had
been transferred back to the paint department.
b. The DINOC relief job
About this time a plantwide cutback in work and
personnel was in progress, and in its course the paint
department suffered a layoff of about one-third of its
production staff, with elimination of some Jobs and change
of others. One job eliminated was relief man in the DINOC
area, where special wood-grain finishes were put on station
wagon bodies; the workers in this job were transferred
elsewhere. Shortly after, the job was recreated on a
temporary basis, while a timestudy engineer reviewed the
operation to decide the exact duties of the relief man. When
it was recreated, General Foreman Nikoley told Person the
job was open and asked if he wanted it. Person accepted,
and on February 9, 1970, Nikoley transferred him to that
job, telling him at the start he would relieve five DINOC
workers and two power men (who wired power doors and
windows in cars), relieving each once in the morning and
once in the afternoon. However, the number and type of
workers to be relieved changed frequently after the first
day: the number of DINOC workers relieved dropped from
five to two within the first week, and two truck workers
(who pushed truck bodies by hand from one paint line to
another) were added to the group he relieved. When Person
complained in the second week to Foreman David Krueger
about the constant change of his duties, the latter explained
that the timestudy man was causing the changes and could
not seem to get the job straightened out, so Krueger did not
know what finally would be done with the duties.
about its effect on work retention and pay rights of employees affected
LOCAL NO. 1268, UAW 901
About February 16, Person complained to Reilly about
the constant change in his duties, saying he wanted a
grievance filed to have it stopped . Reilly explained that
during the plantwide cutback , the paint department was
taking a large cut in jobs including those in the DINOC
area, and a new "relief" setup for Person 's job was being
prepared , but the exact job was not yet " formed" because a
timestudy man was working on it, so his job would be
subject to constant change like relief jobs in every other
department . Reilly suggested Person withhold his grievance
until they found out what the Employer finally did about
the job . The next day Person asked Reilly and Engstrom
about his grievance . Engstrom replied that the job was "not
yet formed ," a lot of changes were being made in it, so they
did not know what it would be like , but when they found
out they would do something about it.
Person 's duties in the job continued to change frequently
as before , and he did not hear from either union official
about it . Person sought out Engstrom and complained that
the job was "getting rough" and "somebody had better
straighten it out ," as it had changed seven times since he got
it. Engstrom laughed , saying he felt Person should not have
had the job at the outset , for it had been eliminated for 2
weeks and then recreated and "you end up with it." Person
asked if "you fellows want me to give it up?" Engstrom
replied that he felt management had not filled the job
properly, and he would do his best to "see that the right
person got it."
Shortly after this discussion, Person prepared and
circulated in the plant copies of a leaflet in effect telling
employees that a conspiracy existed in the paint shop
between Reilly, Engstrom , and certain foremen to do things
for the personal benefit of each other , and raising the
question whether the failure of the union officials to handle
his complaints and those of other employees about their
jobs and working conditions were not the result of a union-
management conspiracy , which deprived workers of the use
of the contract grievance procedure . Person gave copies
personally to Reilly and Engstrom , who on March 23
circulated a reply leaflet in the same departments,
indicating they were available to give employees an answer
to the charges made by Person and suggesting he file
charges against them under the UAW constitution rather
than slander them . Person then circulated in both
departments a petition for the recall of Engstrom in
accordance with UAW constitutional procedures and, after
securing signatures over a period of about 2 months, he sent
it to Ronald Day, secretary of the Union. While he was
circulating the petition , the Union circulated an opposition
leaflet over the signatures of President Samuel F . Casazza,
Secretary Day, and other union officials , in which they
argued against a recall procedure , urging that Reilly and
Engstrom were doing a good job for the members and
suggesting any problems of workers be solved by dealing
directly with them . A recall meeting of union members was
scheduled for June 14, 1970, but then cancelled by the
acting president of the Union by notice to members
advising that the recall petition contained insufficient
names to justify a meeting. On June 16, Person met with
Casazza and Day to complain about the cancellation. In the
discussion , Casazza indicated his view that Person did not
really want a recall meeting because he filed the petition
after his Federal court suit had been dismissed. Person
replied he filed it then because it was the only time he could
and that he had 167 names on it , more than enough to
justify a recall meeting . The union officials disagreed,
indicating that seven were improper because of transfers,
terminations, etc., and three signatures were illegible.
Person offered to have the three verify their signatures in
the department for Casazza, but the president declined,
saying he would take the petition to the local executive
board to decide if a recall meeting should be called. Person
heard nothing further from Casazza about it, but late in
July Person was told by a trustee of the Union that it had
been discussed "around the table" and had "just died."
c. Denial of overtime work after June 21 and
alleged refusal of paid absence allowance for June 22
Chrysler scheduled a plantwide cleanup program for
June and July 1970 during normal plant shutdown for
changeover of car models. It had been started by
management in 1969 to assist the regular maintenance force
in a thorough cleanup of all departments. The supplemental
force was composed of volunteers from production workers
in each department who would assist the janitors in the
cleanup on weekends in their respective departments. At
the outset management and the Union worked out a
procedure for procurement of the volunteers and operation
of the program. Before the cleanup began, workers were
permitted to sign up for it on a log in their respective
departments. From this log plant personnel officials and
union agents prepared a list of the volunteers by seniority,
from which workers were assigned in order of seniority to
work specified weekends. Each worker so assigned was
required to work a full 16 hours, or 2 days, and to perform
any type of cleanup work assigned by management,
without regard to seniority. The volunteer's pay was at least
equal to the pay rate of his regular classification. If a
worker refused to perform the work as and when assigned,
his name was stricken from the list, he received no more
cleanup work, and his position was given to the next worker
on the list. On Thursday before any weekend of cleanup
began, representatives from the plant labor relations office
and a union representative canvassed each employee on the
list to make sure he still wanted to work; if he did, he was
told the date, time, and place to report; if he refused, the
refusal was noted opposite his name, and his work was
given to the next unassigned worker on the list.
The 1970 cleanup program was handled as above, after a
pro forma conference between management and the union
officials to clarify some parts of the procedure, all of which
was confirmed in a memorandum of June 10, 1970, from
plant management to the Union. Under this procedure,
workers were advised sometime before June 20 that they
could sign up for the cleanup work in their departments for
16 hours of work on the successive weekends of June 20-21
and 27-28. Person signed up. On June 18, he and other
volunteers in his department were personally canvassed by
Charles Cunningham of the plant labor relations office and
Steward Reilly to find out if they still wanted the work.
Person indicated he did, and Cunningham told him to
report for cleanup work Sunday, June 21 (as the plant was
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scheduled to work normally on Saturday, the 20th), and
also on Saturday, June 27, if the plant was not in
production that day.
Person reported for cleanup work on June 21 at 6 a.m.
and was assigned by a clerk from the regular maintenance
department to cleaning paint hoses in color booth no. 1. A
regular janitor worked with him. Shortly after they began
work, General Foreman Nikoley reviewed the assignments
with the janitor foreman and, among other changes, shifted
Person to the job of cleaning dirt and dust with a vacuum
cleaner on the top of color booth no. 2, sending James Opel,
a regular utility man in the paint department, to clean hoses
in booth no. I because Opel worked regularly with the
hoses and regulating devices on them and knew just how
they should be cleaned. Before and after the switch, another
production worker was cleaning the top of booth no. 2. The
hose cleaning job consisted of dipping them in troughs of
solvents and clearing them with a gas under pressure, while
the vacuum job was dirtier and more strenuous, as the
worker had to climb on top of the booth to vacuum out dirt
and dust around pipes on top, at times lying on his back to
reach some areas. Person considered the vacuum job a
"rough job," so after about 2 hours on it he came to
Nikoley and Plant Superintendent Frank Berzawa at break
time and, in an excited manner, asked why he had been
switched with Opel, saying it was unfair. Nikoley replied
that Opel had cleaned hoses before. Person rejoined that he
had done that work for 3-1/2 years in the janitor
department in the Delaware plant, that he knew how to do
it, and "that is why I accepted it." He then said he wanted
to talk to the Union about the switch at once. Nikoley said
he would try to find the union officials for him, but it might
take some time. Person replied he could not work "under
this kind of discriminatory conditions," and said he was
going home and took off his overalls. Nikoley asked "You
mean you are going to punch out and go home?" and
Person said, "Yes." Nikoley told him to leave his overalls
on the table, which Person did and left the plant. Nikoley
had the vacuum job operated the rest of the day with three
men instead of four. As he left the plant, Person spoke to
other employees about his complaint, but made no effort to
find either Reilly or Engstrom, both of whom were
circulating in the department to make sure where each
volunteer was assigned to work and that he knew the safety
rules applicable to cleanup work. About a half hour after
Person left, Reilly learned about it and asked Nikoley what
the problem was with Person. Nikoley told him about
Person's shift of work, the reasons therefor, and Person's
reaction.
On Monday, June 22, Reilly learned from another man
who had worked in that area that Person had said on the
23rd he did not have to "put up with this stuff" and was
going home. Person was absent from work on June 22.
During that morning the second shift labor relations
representative, Robert J. Crone, learned from Nikoley that
all volunteers scheduled to work on the 21st had actually
worked except Person who walked off thejob after 2 hours.
Crone told this to Plant Labor Relations Supervisor
William H. Ruback when reporting on the progress of the
Sunday work, but said he did not know why Person walked
off. Ruback told him to find out why and, if the reason was
not good, to scratch Person's name from the worklist. When
Crone talked to Reilly about the Sunday work, Reilly also
told him everyone had worked except Person, who left after
2 hours saying he did not have to "put up with this stuff."
Crone then asked Reilly if that meant that "we should drop
Person from the roster?" and Reilly replied, yes, according
to the agreement with the shop committee. Crone then
crossed Person's name off the worklist, noting beside it
"refused to work, dropped."
When Person came to work on June 23, he asked
Foreman Krueger for a paid absence allowance
(hereinafter called PAA) for June 22. Krueger asked why he
was absent, and he replied that his ulcers had bothered him
so he stayed home. Krueger asked if he had seen a doctor
and had a doctor's slip to show the reason for absence.
Person said "no" to both questions. Krueger said "you are
not excused" but he would check Person's absence record
and then "check back with" Person before he allowed the
PAA without a doctor's certificate.5
Shortly after this talk, Person approached Reilly and
Engstrom and asked if they knew what happened to him
Sunday. They said they had heard he walked off the job.
Reilly said Person had been shifted from the first color
booth to the second because Opel knew the color code for
the hoses. Person replied that he also knew them, as he was
required to know them in his work in the inspection
department, but that one did not have to know the code
when cleaning hoses, as he only had to replace cleaned
hoses where he found them, just as thejamtors did. Person
then asked both officials to write up a grievance at once for
the discrimination against him. Reilly replied that he would
not write one on that, as he did not feel it was a grievable
issue because the foreman had a right to move him.
Engstrom then said Person would not do any more
overtime work. Person asked why, and Engstrom said the
union committee had agreed that anyone who refused
"work of any kind" would not get further overtime work.
Person replied that he would work and had always done so,
but he did not like to work "under these discriminating
circumstances."
Shortly after lunch, Krueger told Person that he could not
get the PAA as he was not excused for June 22. Person
sought out Reilly and told him what Krueger had said and
asked Reilly to file a grievance on the refusal of the PAA.
Reilly asked if he had brought in a doctor's excuse. Person
said he had not, that he had continual stomach problems
and did not see a doctor, but that he did not need a doctor's
excuse to get a PAA. Reilly said he would check on it with
Krueger and talk to Person later. Person suggested he look
over Person's absence record and get a copy of it for
Person. Reilly then asked Krueger why Person had not
been excused. Krueger commented that Person had not
missed a lot of time. Both men contacted Randal A. Jonas,
the department clerk, who pulled Person's absence record
which showed them that he had seldom been absent except
S Company policy is to allow a PAA for illness without a doctor's chronic absenteeism , the foreman usually requires a doctor's excuse before
excuse if the worker's absentee record is good, i e, does not contain many approval of the PAA.
unexplained or unexcused absences , if it appears that the worker has
LOCAL NO. 1268, UAW 903
on union business . Reilly commented to Krueger on the
good record of Person, and after some discussion the
foreman agreed to approve the PAA. Krueger called the
department clerk and told him to sign his name in the
proper place on the timecard approving the PAA. The clerk
did so and put the timecard back in the rack during the
afternoon. Shortly after lunch Reilly told Person that
Krueger had agreed to excuse him for the 22nd and would
sign his timecard approving it, but that Person must sign it
himself before he left work, so that he could get the PAA.
Person agreed.6 Person saw his timecard when he punched
out at 4 p.m. that afternoon, but apparently never signed
his name to the PAA application, so it did not appear in his
paycheck of the following week. Person was absent from
the plant on union business during the remainder of the
week of June 21; i.e., on June 24, 25 and 26. He received his
paycheck for that week in the usual course on Friday of the
following week, but it did not contain the PAA. Although
he saw Krueger daily thereafter, he did not question him
about the absence of the PAA.
Chrysler advised Person by telegram sent June 26 that he
was not scheduled to work on June 27 Sometime in the
week of June 29, Person approached Reilly and asked the
reason for the telegram. Reilly replied this arose from the
agreement between Chrysler and the Union that those who
refused overtime work would not get any more of it. Person
asked him to file a grievance on it, and Reilly said part of
the agreement was that no grievances would be filed on the
overtime work.
When Person filed his charge herein in September he
discussed the unpaid PAA with counsel for the Board who
talked to Krueger about it in course of investigation of the
charge. Person was advised by Board counsel that in
November Krueger said he had signed his approval on the
timecard and Person should have had the PAA long before.
On advice of Board counsel Person contacted Krueger and
told him what counsel had said. Krueger said, yes, he had
signed the timecard long ago, but Person did not sign it.
Although Person questioned this statement, he finally
signed a new timecard application for the PAA in presence
of Krueger, the foreman also signed it, and Person received
the PAA the same day.7
d. The treatment of later grievances of Person
In August 1970, while Person was still a relief man in the
DINOC area, management had still not decided finally on
the exact duties of his job and that of others in the
department, as the DINOC work had changed completely
on the new car models. Person and other employees
affected decided they wanted a timestudy of the jobs in
order to set up their exact duties. Person asked his foreman
to contact Reilly in order to set up the timestudy, but the
foreman did not comply at once. The Union later lodged a
grievance with management on behalf of all the DINOC
6 When a foreman approves a PAA, he signs his approval on the proper
block on the timecard , usually but not always in the presence of the
employee , and then the employee must sign his name as the applicant If
both signatures are there , the payroll department will include the amount
of the PAA in the paycheck for that week, noting the amount separately on
the check stub If either signature is missing, the PAA is not paid until the
missing signature is added, usually in the form of another signed
application and approval on a timecard of later date , and then the PAA is
employees over the failure of the foreman to get the steward
on demand of employees as required by the contract. This
was withdrawn after management advised the foreman of
his duty under the contract. There was apparently no
request by the Union for a timestudy of the relief or other
jobs.
Sometime in mid-1970, a scheduling job became vacant
in the paint department. This was a special job requiring the
employee to keep track of special paint jobs, in order to
make sure that they enter the painting operations at the
proper times. It only operated for 6 to 9 months of the year,
depending on the number of special-paint jobs coming
through. While it paid less than relief jobs, it was desired by
employees because it was far from routine, in that it
required workers to travel throughout the paint department
to log the progress of special-paint jobs and to talk to
workers and supervisors in the process; it also allowed a
worker much freedom to talk to workers during working
hours about other things, such as union affairs. When the
job opened up, the union officials got notice of it and,
although it was not posted for open bidding, over 25
workers including Person indicated they wanted it. The
foreman asked Reilly and Engstrom if he could fill the job
with Milt Booze, the worker who had held it in the last year,
or if he must canvas the department for bids and award it
by seniority. The union officials said the latter method must
be followed. General Foreman Nikoley indicated he
wanted Booze, because of his 3 years' experience in the job,
but the Union insisted it be given out by seniority to
Person, who had top seniority, and the employer should
train Person, if necessary, for the work. After several days
of discussion in which Nikoley and the Union could not
agree, they took the dispute to General Superintendent
Frank Burzawa, who finally agreed to follow past practice,
fill the job by seniority, and train the new man. The
foreman then canvassed the department for bidders, listed
them by seniority and, with the approval of Steward Reilly,
awarded the job by seniority to Person in August 1970.
Although the pay for the job was less than he got as relief
man, Person knew when he took it that the Union already
had a grievance filed and pending on behalf of the prior
incumbent to improve the pay for it. At time of the trial
herein, Person still held that job.
4. Contentions of the parties and findings and
conclusions thereon
The main theme of General Counsel's argument is that
Person began to experience trouble in securing proper
representation by Respondent on grievances against the
Employer fairly soon after the omission of his name from
the May 1969 election for committeeman, and as a result of
his prompt, aggressive, and continuous fight both within
the Union and in court to have that election set aside and a
rerun held with his name on the ballot, and that the high
included in the paycheck following that approval
7 The above facts are found from credited testimony of Person , various
plant officials who testified , and Reilly and Engstrom . Testimony of any of
these witnesses at variance therewith is not credited Certain conflicts of
testimony of Person and the two union officials about their discussions of
the PAA after June 29 will be resolved in my analysis of the arguments on
the overtime and PAA issues
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point of the Union's failure to represent him was its failure
to process his grievances about deletion from the overtime
worklist and denial of a PAA on June 21 and 23, after he
lost the Federal court action against the Union, had openly
criticized both Reilly and Engstrom, and sought the recall
of Engstrom earlier in 1970. As this contention is based on
a pattern of activity, it requires the rather lengthy narration
of events of 1969 and 1970 involving Person set forth above,
as well as analysis of handling of his grievances both before
and after the events of June 1970, which form the basis of
the complaint herein.
The principles which govern the representation of a
union member by officials and agents of his union are fairly
well settled. Union officials and agents stand in a fiduciary
relationship to members of their union. Their authority
with respect to members is not absolute, but rather "their
statutory obligation to represent all members of an
appropriate unit requires them to make an honest effort to
serve the interests of all those members, without hostility to
any." "The bargaining representative, whoever it may be, is
responsible to, and owes complete loyalty to, the interests
of all whom it represents." Ford Motor Co. v. Huffman, 345
U.S. 330, 337, 338. The Supreme Court in that case also
recognized, however, that with respect to such bargaining
obligations, "the complete satisfaction of all who are
represented is hardly to be expected. A wide range of
reasonableness must be allowed a statutory bargaining
representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose in
the exercise of its discretion" (345 U.S. at 338). The Board
recently followed this principle. Local 825, etc. (Associated
General Contractors of New Jersey), 187 N LRB No. 6. It has
also been held that "Among the most important of labor
standards imposed by the Act as amended is that of fair
dealing, which is demanded of unions in their dealings with
employees. . . . The requirement of fair dealing between a
union and its members is in a sense fiduciary in nature and
arises out of two factors. One is the degree of dependence of
the individual employee on the union organization; the
other, a corollary of the first, is the comprehensive power
vested in the union with respect to the individual."
International Union, etc. Local 801 v. N.L.R.B., 307 F.2d
679, 683 (C.A.D.C.). The Board has long recognized these
principles. Miranda Fuel Company, Inc., 140 NLRB 181,
187; Emmadine Farms, Inc., 138 NLRB 1098, 1113. The
Union's handling of Person's grievances must be analyzed
and tested in the light of these rulings.
At the outset, it is a fair inference that the pendency of
Person's intraunion attempts from May through October
1969 to get the May 1969 election revoked and rerun with
his name on the ballot, which, if successful, might have
involved a suspension of Engstrom's duties as committee-
man at least during the pendency of the new election
(although this effect is not clearly inferable from the oral or
documentary evidence), was well calculated to raise some
resentment in Engstrom, and probably in Reilly, with
whom Engstrom worked closely in union affairs, and this
requires a careful scrutiny of the Union's handling of
Person's complaints. There is no proof that Engstrom,
Reilly, or any other officials elected in May took any
questionable attitude toward Person until his complaint in
late 1969 about the added duties of the paint inspection job.
When Person demanded a timestudy and filing of a
grievance under the "Work Standards" clause of the plant
contract because of the extra workload, as he alleges,
Engstrom's refusal to do either is based only on the claim
that an inspector's job cannot be timed, because it was a
nonrepetitive job. While Person did not deny, and General
Counsel produces no proof to show, that inspection work is
not a repetitive job, the "Work Standards" provision
appears to cover all employees, including inspectors, and its
wording appears to be broad enough to cover any
complaint that the work required of Person as an inspector
exceeded his "reasonable working capacity" in that job,
and Engstrom did not dispute this point in refusing to file a
grievance, or in his testimony. On the other hand, as the job
was admittedly nonrepetitive, a timestudy might not have
produced a reliable "work standard," particularly where it
is obviously impossible to say in advance how many paint
defects, in fact or on average, would appear on cars in any
one day or week. If all the paint equipment and those
operating it were at any period operating at full efficiency,
the mechanics of clipping inspection cards and noting the
inspection sheet might require minimal effort. Hence,
viewing the situation as the Board viewed a working
condition grievance in the Emmadine case, supra, I cannot
say that Engstrom was acting unreasonably or without
justification in arguing that the grievances had no merit,
particularly where General Counsel produces no proof of
prosecution of any similar grievances by the Union with
success, such as appeared in the Emmadine case. I note also
that Person did not press the issue by taking the matter to
plant officials higher than his foreman, as he did later on
the grievances involving his retention at work during a
short workweek and his failure to get the rechecking job.
Although the steward was required to make an honest
effort to serve the interest of Person in this instance without
hostility, the Ford Motor Co. case decision still allowed him
to use his discretion in filing a grievance, provided his
decision on it was reasonable and made in complete good
faith. While Engstrom's decision and the reason he gave for
it is not all-inclusive and can still be argued both ways, and
he made it shortly after Person lost his final appeal within
the UAW and about the time he sought relief in a Federal
court, these circumstances at most raise some suspicion that
Engstrom was trying to evade an honest effort to process a
grievance which appeared to have substantial merit, but
suspicion is not proof, and I must conclude that all the
circumstances fall short of substantial proof that the Union
at this time was beginning a pattern of evasion of proper
representation of Person on grievances.
Person's two grievances of January 1970 arose from his
contention that management was not following past plant
practices in retaining him and another inspector on a
seniority basis to inspect on a repair line when their own
line had been shut down during a short workweek and its
personnel sent home at 80 percent of their pay and in
failing to give him another type of inspection job just
opening up. Person's claim that retention of inspectors on a
seniority basis during a short workweek was contrary to
plant practice in other departments is supported by
testimony of Reilly and Engstrom, hence his complaint of
LOCAL NO. 1268, UAW 905
an unfair variation from plant practice has merit to that
extent. However, I must also find from other credible
testimony of the two union officials, corroborated by
testimony of Casazza, and admissions of Person that:
Person was not the only inspector subjected to this alleged
unfair treatment8 for one other inspector in his line
received the same treatment, as well as other high seniority
employees in other departments. This had been going on
for some time past, and senior inspectors in all departments
had been making the same complaint as Person for the
same reason . Union officials and its shop committee had
been meeting with management at various stages of the
grievance procedure in an attempt to persuade manage-
ment to apply "inverse seniority" on short workweeks to
allow senior employees to go home if they desired,
somewhat like their contract right to remain at work by
seniority in cases of regular layoffs. However, the Union
had not succeeded up to the time of Person's complaint in
persuading management to recede from its position that in
certain types of work it needed to keep senior employees at
work during a short workweek; at best, union shop
committeemen were occasionally able to persuade supervi-
sors in certain circumstances and areas to apply it
informally; however, it does not appear that the Union had
had any success in getting this concession in the paint
department. It is clear from these facts that, when Person
made his complaint, the Union was already processing the
same grievance for all senior workers including Person.
While Person in testimony professes vaguely a lack of
knowledge of the scope of the broad grievance and the
Union's exact position on it, I do not credit him, but rather
credit Reilly's testimony that he told Person of the status of
the general grievance when he made his complaint. Further,
Person's testimony indicates he himself was unsure of the
exact basis for his complaint, for while he admits that he
does not argue that his fellow inspector was being unfairly
treated, he claims he wanted the employer to treat him
(Person) like all other employees. But this wasjust what the
employer was doing, and what the Union was trying to
change for the benefit of Person and all other senior
employees. In these circumstances, I cannot find that
Person had at first blush a meritorious grievance, separate
and apart from those of other senior inspectors and other
employees, which would justify, much less require, the
filing of a separate grievance for him, and as a corollary I
find that, with a general grievance on "inverse seniority"
during short workweeks already in discussion with
management , the union officials did not act unreasonably
or with clear intent to evade their obligations toward
Person in not filing a special grievance on his behalf in this
instance.
I reach the same conclusion about his grievance on the
rechecking job. Person followed steps 1 and 2 of the
grievance procedure in discussing it with the foreman and
then referring it to Reilly and Engstrom to discuss with the
foreman. Both officials learned management's position on
the trial status of the job and the intent to rotate it and
advised Person accordingly, suggesting they wait to see
what happened to it. Reilly made the same suggestion
shortly when Person became impatient and demanded the
filing of a grievance if the job was not filled soon. This was
a reasonable attitude for the Union to take, for it
recognized the exclusive right of management under the
contract to manage its plants and direct its affairs and
working forces (art. (2) of contract), and there is no
suggestion that management was deliberately delaying final
decision on the job for some reason hostile to Person, or
that the Union had any right to insist that it hasten its final
decision.
When Person brought both grievances to higher manage-
ment officials in the 3rd grievance step, the employer
maintained the same position as formerly stated to the
Union and relayed to Person, while indicating it wanted
.,no problems" in either case. The short workweek situation
ended a few days later, and the rechecking job was cut out
about a week after the conference, but reinstated about a
month later with one person holding it. The salient facts
here are (1) Person apparently went through steps 1 and 2
without hindrance and the Union readily allowed Person to
invoke the 3rd grievance step and plead his own case, and
(2) he was successful in getting an admission from
management that under past practice the rechecking job
had been filled by one man on a seniority basis and that it
wanted "no problems" about the job. General Counsel's
main contention here is that Engstrom, rather than fighting
for resumption of the admitted past practice, as Person
wanted, apparently agreed too readily with management to
the rotation of three men in the job on a trial basis.
However, any inference of deliberate failure to press a
merited grievance here is weakened by uncontradicted
testimony of Engstrom that the Union could not present
any legal or contract basis for Person's position because,
while the contract required assignment by seniority to a
newly classified job, it did not give unit employees any "job
preference" by seniority within an existing classification
and, since the rechecking job was merely another job
opening within the inspector classification, management
could fill it with any workers already in that classification
without regard to seniority; it was not subject to the
bidding procedure used for new job classifications. On this
point, I also find from testimony of Engstrom and
admissions of Person that: Under past plant practice
seniority could not be invoked by senior employees in a job
classification to "bump" or replace a junior worker already
working in it, except in case of a layoff, and that, while
shifting of men from job to job in a classification seldom
occurs, when it does the Union usually tries by persuasion
to protect the junior in his work from management's
attempt to put a senior worker in that particular slot, but it
has no contract right to demand that the senior get his
choice. It is significant that the union officials tried this
approach for Person in their first contact with Hoffman
and Bradley, even though it appeared that two other men
besides Person were asking for the rechecking job. Thus,
they clearly were taking action, in accordance with past
union practice, to get the job for him though he had no legal
8 The so-called discrimination was that Person was not allowed to go no comment about the propriety of this type of thinking in the present era
home (and do no productive work ) and still get paid 80 percent of his of increasing inflation.
regular pay , while junior inspectors were allowed that "privilege " I make
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to it, so I find no failure to represent him properly
when they concluded they had no basis for demanding or
compelling management to forego rotation of three men in
the job, particularly with three men asking for it. The
sequence of events in the elimination of the rechecking job
shortly after Ruback said he wanted "no problem" about it,
and its reinstatement a month later with only one man in it
(as Person wanted), but after Person had transferred out of
inspection work, raises some suspicion that management
may have solved the "problem" of Person and his demand
in this way, but there is no charge to that effect and the
Employer is not a respondent to this complaint. Hence I
cannot find on all the facts that the Union failed in its duty
toward Person when it did not press his grievance beyond
the 3rd step, where it had no contractual or even equitable
basis therefor. While Person intimates in testimony that the
Union should have filed a grievance because the job was
abolished in bad faith and then reinstated with an
improperly selected man in it, he admits that it was union
practice to do this only where it appeared that a junior
employee had thus wrongfully been ousted from the job.
But this was not his situation, for there is no proof that
management , with or without the connivance or assistance
of the Union, offered the DINOC relief job to Person and
gave it to him, with the idea of getting him out of inspection
so that it could fill the rechecking job with a junior
inspector of its own or the Union's choice. Hence, the
Union did not appear to have a clear basis for a grievance
that Person was improperly transferred to let a more
favored inspector get that job, and Person does not claim
any discrimination against him when he got the DINOC
job. On all the pertinent facts here, I can only conclude that
the Union took what steps it could, without support in the
contract provisions, to get the rechecking job for Person
and that its lack of success does not denote any palpable
abuse of discretion or signal failure in its duty to represent
Person fairly and properly on this occasion.9
Regarding the complaint about the DINOC relief job,
General Counsel claims that the Union continually
"stalled" on Person's demand that changes in the job be
stopped and that a grievance on it be filed and then finally
admitted through Engstrom that the problems Person
encountered in the job were caused by Engstrom, and that
it felt he should never have had the job in the first place.
When stated thus shortly, the claim appears to have merit.
However, Engstrom's explanation that the job was still
being "formed" due to a current timestudy on it, which
caused continual changes of duties, is not denied by Person,
who displayed an incredible lack of knowledge as to the
exact status of the job. It is significant that he did not
request the Union to ask management to hasten or
terminate the timestudy, or to make its own timestudy for
that purpose. He merely demanded that all changes in the
job duties be stopped, which on its face is an attempt to
supersede a management function with his own desires.
This alone would make a formal grievance on that basis of
doubtful merit. Further, Engstrom testified without contra-
diction that: Before Person made his complaint Engstrom
had learned that management had eliminated two relief
jobs, transferring high seniority men in them to the
production line, and shortly after it had eliminated the
rechecking job on the production line, and transferred
Person to the new DINOC relief job. When Engstrom
investigated, he discovered there was no industrial
engineer 's description of the new relief job, which was an
abnormal situation that indicated to him that the new job
may have been hastily "manufactured" by the employer for
Person, to get him off the rechecking job in the production
line, where it had become dissatisfied with his rate of
release of cars from the line. As two other senior workers
had been displaced by the elimination of the prior relief job,
he felt that the new DINOC job was "invented" to get
Person out of inspection, and thus he was interested in
preventing him from holding an "invented" relief job
because it was an injustice to the two men who had held it
formerly. He says he told Person about this situation, after
management refused to take Person off that job and
reinstate the two others, and that the Union had filed a
general grievance seeking to restore the relief job in its
previous form. He also testified that the Union was grieving
over the way management had "invented" the DINOC job
for a special purpose of its own, to the detriment of two
men who held it before, and that these men were the "right"
persons to hold it. While it is clear from Engstrom's
testimony that if the Union had prevailed on its general
grievance, Person would have lost the DINOC relief job in
favor of the two men who formerly held it, his explanation
shows that the Union refused to file a grievance on behalf
of Person because the union officials felt this would
perpetuate an injustice to two other senior workers. General
Counsel does not attack this explanation by testimony or
otherwise. Obviously, if management were allowed to carry
on a practice of cutting out jobs and making new ones for
the specific purpose of shunting one man around, but to the
detriment of the jobs of other workers, the Union had every
right to try to stop this by filing a general grievance on the
practice, even if it might hurt the job of one employee
favored by the transfer. i° But this purpose does not thereby
make the Union's action here a deliberate discrimination
against Person; rather it illustrates one of the situations
recognized by the Supreme Court in the Ford Motor Co.
case, supra, where "complete satisfaction of all who are
represented is hardly to be expected," and that the Union
must be allowed a "wide range of reasonableness . . . in
serving the bargaining unit it represents ." The corollary
duty, perhaps unpleasant in execution at times , is that it
must consider the rights of all members of the unit and not
favor one member against others . In this context, I must
conclude the record strongly indicates that Engstrom was
acting to protect rights of union members which seemed to
be unfairly curtailed by management in order apparently to
favor another member for reasons of its own. I conclude
that General Counsel has failed to prove by the requisite
9 See United Steel Workers of America, Local 4338 (Miami Copper and then reinstated it later in order to favor a senior worker, and
Company, etc) and Hiram C Case, 190 NLRB No 12 uncontradicted testimony of Nikoley that the DINOC relief man has the
io This right is pointed up sharply by the admission of Person , a former best job in that department, with more pay for less time worked than on
steward and committeeman , that the Union has a legitimate grievance if it any other job See United Steel Workers of America, Local 4338, et al.,
feels the employer has abolished a job held by a junior worker in bad faith supra
LOCAL NO. 1268, UAW 907
burden of proof that the Union failed to represent Person
properly in this situation.
On the question of removal of Person from the overtime
worklist during the cleanup operation, the underlying and
controlling factor was the clear duty of Person and all other
bidders on the list to perform whatever cleanup work was
assigned for a period of 16 total hours as designated by
management ; and since selection for the work was
apparently a financial benefit sought by many, those on the
list had the corollary duty of working subject to these
conditions, under penalty of elimination from the list for
refusal to accept the jobs assigned or working the full time.
Person rejected these conditions in the first 2 hours of work
when he refused to "accept" a change of assignment and
quit. General Counsel argues that management did not
make the decision to drop Person, but left it to Reilly.
However, I have found that when Crone raised the question
of whether Person should be dropped from the overtime list
because he quit due to dissatisfaction with his work, Reilly
agreed that he should, according to the working agreement
between management and the Union found above. Since
the procedure in preparing and handling the work list had
been worked out between those parties, it was only natural
for management to check with union officials before
making any deletions in the worklist after cleanup had
started. Hence, I cannot interpret Crone's remarks and
questions to Reilly about Person as an abandonment to the
Union of the decision about his status, but must view it as a
request for confirmation of the right course to pursue under
the basic joint work agreement. This conclusion is not
altered or prevented by the fact that Crone had previously
learned from his superior of the reasons stated by Person
when he quit the job and must have known they were good
grounds for dropping him, for the nature and scope of the
basic joint arrangement made it advisable, if not mandato-
ry, for Crone to make sure that the Union agreed with the
action to be taken. Nor was it necessary for Crone to talk
with Person before removing him from the list, because the
circumstances under which management had confirmed on
the previous Thursday Person's desire to work the overtime
made it clear to Person that a condition of receiving this
desirable work with premium pay was performance of all
work assigned for the full period. I cannot find that Crone
dropped him from the list only after Reilly deliberately
misrepresented the facts about Person's quit, for although it
seems strange that Crone did not first find out from
Nikoley or the janitor foreman or Reilly the exact reasons
for the quit, the mere fact of the voluntary quit was enough
to warrant dropping him from the list, and when Reilly
indicated Person quit because of dissatisfaction with "this
stuff" or "this crap," this presented Crone with enough
proof of repudiation of the overtime work arrangement to
suggest Person's immediate deletion from the list, in order
to make room for others on the waiting list. It is clear that
the Union's approval was properly given because of
11 At one point, Person explains he worked in color booth no. I without
protest, as he "accepted " that work because he had done it before in
Delaware , clearly implying he felt he had the prerogative to reject any work
based on past experience or any other personal reason . But at another
point he admits he went in to work on any job management gave him,
justifying his quit with the lame excuse that he "disagreed with the way
they handled me "
Person's violation of the basic arrangement, which gave the
volunteers no discretion to decide what work they would do
or for how long. General Counsel counters that Person's
action does not come within the scope of the arrangement
because he quit over a "labor dispute" involving an alleged
unfair change of working conditions. The defect in this
argument is that the basic arrangement required the
accepted bidders to do any work required, so it must have
been patent to all on the list that all the cleanup work was
basically a dirtyjob, and far less pleasant than their normal
production work, hence they could hardly complain about
the degree of dirt involved in the work. However, I cannot
find that Person's situation involved "a labor dispute," such
as a requirement of working under unusually hazardous
conditions, as cited by Ruback. Person quit because he did
not like a transfer from one dirty job to another. The
prerogative to make such changes was given to manage-
ment under the arrangement, and uncontradicted testimo-
ny of Nikoley and Reilly shows that management made the
switch of jobs between Person and Opel in the interests of
efficiency, and Reilly was promptly advised of the reason
for it the same day. While there is some proof that
management in past cleanups had allowed workers to quit
early without loss of position on the worklist, there is no
proof of the exact circumstances of such cases, particularly
whether it was a legitimate excuse like sickness. All that
appears here is Person's expressed desire to choose his own
type of cleanup work, which he admits was contrary to the
basic arrangement." I can see nothing suspicious in the
failure of the union agents to take action on behalf of
Person after he claimed on June 23 that his transfer on the
21st had been discriminatory, for both agents discussed the
facts fully with him and Reilly refused to file a grievance on
the view that the foreman had the prerogative to move him.
As this was true, I can only conclude that Reilly was acting
in an apparent honest exercise of his discretion in not
presenting a grievance where he felt there was no merit to
it.12 His judgment and basis for it finds support in Person's
admission that on various occasions when he was steward,
he had similarly exercised his discretion to refuse to file a
grievance after advising the employee seeking it that it had
no merit in his opinion. Further, Person does not cite any
instances out of his long experience as a union official in
two Chrysler plants where the Union had successfully
prosecuted similar grievances under similar circumstances,
nor is there any proof from any other source indicating that
Reilly or Engstrom knew of such cases but still refused to
prosecute a similar grievance for Person. Hence, the
decision in the Emmadine case, supra, on which General
Counsel relies, and which contained evidence of such
comparative cases, cannot serve to control here.13 While
the record indicates that Reilly and Engstrom did not make
an investigation in depth on behalf of Person to the extent
that General Counsel feels was necessary, and their failure
to take aggressive action occurred only about 10 days after
12 In this connection , I also note from uncontradicted testimony of
Reilly that he learned from Opel the same day that he also objected to the
switch, but he never asked the Union to file a gnevance on it.
13 Cf, also, Local 703, international Brotherhood of Teamsters, etc
(Dominick's Finer Foods, Inc), 188 NLRB No. 138, where there was clear
evidence of a sharp contrast between a union's past and present handling
of similar grievances.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Person's attempt to have a recall of Engstrom was
aborted, and (2) his argument with the president and
secretary of the Union about this, these circumstances raise
no more than a strong suspicion that the Union was
dragging its feet somewhat in considering the employer's
action against Person, without forcing it through the
grievance procedure, but suspicion is not proof sufficient to
warrant a finding of a deliberate failure to represent Person
properly and honestly in this instance, particularly where it
is manifest that Person made it clear to management on the
21st and the Union on the 23rd that he wanted special
consideration and privileges during the cleanup work,
contrary to the terms of the cleanup work arrangement.
Finally, the record clearly shows that at least four other
employees were dropped from the overtime list for failure
to accept cleanup work as and when offered, which further
weighs against any inference that Person was singled out
for his refusal to work under the basic arrangement.
On all the pertinent facts I find that General Counsel has
failed to prove by the requisite burden of proof on the
entire record that the Union caused Person's name to be
stricken from the overtime list in violation of the Act. I
grant Respondent's motion to dismiss paragraph 7, 8, and 9
of the complaint insofar as they relate to this incident, and
will recommend the complaint be dismissed accordingly.
In the sequence of events involving Person's PAA of June
22, the outstanding fact is that he did not follow the normal
plant practice of signing his name in the PAA application
box on his timecard. I do not credit his unimpressive
denials of knowledge that this was necessary, because his
long employment at the plant, during which he punched in
and out daily, must have made him aware of the PAA box
and its purpose, as well as the space in it for signatures of
employee and foreman, and with his long experience as a
union official in the plant it is a fair inference that he had
handled PAA problems for other employees in a 4,600-
member unit and knew the mechanical procedure for
payment. In addition, his arguments to both the foreman
and Reilly about his good absentee record, and procure-
ment of a copy of it through Reilly, shows he knew that
plant policy on payment of a PAA depended in large part
on the state of the employee's absentee record, so that he
was securing the ammunition necessary to support his PAA
claim. Hence, I find that he knew he must sign the timecard
to get the PAA. His only excuse for not signing it arises by
inference from his version of the alleged rejective remarks
of Krueger and Reilly, but I cannot draw that inference
since I have credited the testimony of the latter that the
foreman finally agreed to approve the PAA after seeing
14 General Counsel attacks the stones of Krueger and his clerk, Jonas,
as completely incredible because Krueger admitted that he had no
independent memory of the events of June 23 and that his memory was
refreshed only after the clerk told him what had occurred, and because
Jonas' recollection of his handling of the timecard , and the timing of his
specific actions that day, was poor, and did not jibe completely with that of
Krueger However , both men testified on the events of June 23 more than 7
months after the incident , and if in fact they had regarded it as adjusted
satisfactorily on June 23 it was only natural that their memory of it would
fade out almost completely after 7 months, that it would be difficult to
reconstruct every detail of it when recalled to their minds in October 1970,
and that even after reconstruction they would not agree on every detail of
sequence and timing After passage of time, it is more natural than not for
witnesses to recall differing aspects of a series of events, but not all the
same details. In fact, courts have often said that a close agreement of
Person's record and had the department clerk sign the card
for him, and Reilly told Person about it, advising him to
sign the card himself. From the standpoint of the Union
and Employer, this closed the matter, as both Krueger and
Reilly indicated in testimony, and explains why the Union
never filed any grievance on it. This sequence of events is
also consistent with the fact that when the claim was
broached to the employer by a Board agent long after, it
readily dug up the records, discovered the timecard lacked
only Person's signature, and when that omission was
corrected in a current timecard, with the foreman also
signing as before, the PAA was paid.14 On the other hand, I
cannot credit Person's version of his negative treatment by
Krueger and Reilly because, after he admitted he got a copy
of his absentee record from Reilly, which all witnesses
admitted would be decisive on his right to the PAA, he
made no attempt to confront either Krueger or any higher
company official with it after his alleged rebuff by Reilly.
When Krueger at first refused to approve his claim, it was
clearly in order to check the crucial absentee record. Person
got a copy of it the same day, so if Krueger later rejected the
PAA for lack of a doctor's excuse (which the parties admit
he did by mistake), Person could easily have confronted
him with the copy of his record, either when he got his
paycheck for that week or later as part of the first grievance
step. He does not explain why he did not. When he failed to
convince Reilly to file a grievance for him, he complained
to the union president, but never invoked grievance step 3,
a conference with Johnson and other higher company
officials, as he had done with union approval on the short
workweek and rechecking job grievances. Given the
admitted company policy on PAAs, I can only infer that if
Person had promptly confronted top management at either
level with his absentee record, the decision would have been
in his favor. Hence, his unexplained failure to (1) sign his
timecard in the PAA box at checkout on June 23, at which
time he must have seen Krueger's name approving the
PAA,15 (2) confront management at any later date with his
absentee record in grievance steps 1 or 2, and (3) invoke
step 3 for that purpose, strongly indicates that Person failed
to take the simple steps necessary to get the PAA for some
reason unexplained and still locked in his own mind. From
these omissions, I can only infer that at the time the need
for his signature either slipped his mind (perhaps in the
course of preparing for a 3-day absence on union business
on June 24, 25, and 26) or he did not then consider it
important enough to press as a grievance. It follows that
when Reilly checked his record after his complaint and
brought it to Krueger's attention, causing that official to
witnesses on minute details of events long past may be more indicative of a
prepared and concocted story than of an honest effort to state truthful
their respective versions of the events . Here , my observation of the
demeanor of Krueger and Jonas, and the failure of their testimony to jibe
in every small detail, leads me to believe each was striving to state
truthfully his own recollection of the June 23 events , and their joint
testimony creates a picture of events of June 22 and 23 which finds strong
support in the timecard which contains only Krueger 's name , signed by
Jonas, a significant document which General Counsel has not effectively
controverted by other testimony or in argument
15 1 do not credit Person's denial on rebuttal that the card was signed,
for he was evasive as to whether he saw any writing on the card, while he
admitted he was alert enough to notice the lack of the PAA in his paycheck
received the next Friday.
LOCAL NO. 1268, UAW
approve the PAA, the Union had successfully prosecuted
the grievance to the extent that it could for Person. I must
conclude and find that General Counsel has failed to prove
it failed to do so in violation of the Act.16 I grant
Respondent's motion to dismiss paragraph 7(b), 8, and 9 of
the complaint bearing on this issue and recommend that the
complaint be dismissed accordingly.
The facts relating to the filling of the schedulingjob now
held by Person and his complaint in August 1970 about
continued changes on the DINOC relief job show that,
despite Person's past disputes with the union officials, the
Union has continued to represent Person and other union
members with him in aggressive fashion. Thus, when he
could not get his foreman to call in the department steward
on a request for timestudy of DINOC jobs, a complaint
initiated by him for all employees resulted in a union
grievance on the important matter of failing to call a union
steward when requested as required by the contract. The
Union was successful. When Person's present job opened
up, the Union processed through at least three grievance
steps its contention that management could not fill the job
with its former holder, but must give it by seniority to
Person and then train him. The Union succeeded and
Person got the job through its efforts in requiring contract
procedures to be followed. He also was the beneficiary of a
pending pay grievance on the job, designed to raise the job
rate.17 Whether or not the Union's actions in these cases
resulted from personal requests of Person, it is clear that he
benefitted by its efforts, and the Union took no steps to
ignore his rights or to shunt him aside in a discriminatory
manner when his present job opened up. This fair
representation is consistent with and supports the finding of
the Union's fair and proper representation of him on the
PAA claim, and its fair handling of his rights vis-a-vis those
of other union members on the cleanup worklist incident.
In reaching all the foregoing conclusions, I have given
careful consideration to other aspects of the attitude and
conduct of Reilly and Engstrom toward Person, including
remarks of Engstrom to a few other employees in April and
September 1970 indicating that employees might get in
trouble if they assisted Person with the recall petition,
warning them not to associate with him because he was an
"agitator" trying to cause "dissension within the Union,"
and expressing pleasure that he had failed in his efforts
within the Union to set aside the election. 18 These remarks
indicate that Engstrom, and probably Reilly, disliked
Person because of his personal attacks on them, and they
freely expressed that dislike and their resentment of his
16 This conclusion makes it unnecessary to consider or make findings
on Person's later discussions about the PAA with the union president
17 Person was also the direct beneficiary of a grievance filed and
prosecuted by the Union for him in March 1970 on the issue whether he
should get paid 4 hours while absent at the union hall on union business
The Union had to take this through the 4th grievance step before the
909
tactics to other workers, all of which adds to the suspicion
that they may have been reluctant to assist him in his
problems with Chrysler or his relations with the Union
itself; and his complaint at one point that they were not
"friendly" in talking to him about grievances (as he argues
he was when steward and committeeman) tends to
reinforce the same suspicion. However, their joint reply to
his charge of conspiracy and other improper dealings urged
all workers to act in a united rather than a divisive way in
front of the employer, to discuss matters with them freely,
and suggested all differences be handled within the Union.
Further, Person argues in testimony that his written attack
on their stewardship was intended and designed to make
them better union officials and help them carry out their
duties for the members efficiently. It is thus inferable that
the wide publicity given to his attack on them may have
served to make them more alert to perform their union
duties properly, and to receive and consider his complaints
positively, rather than in negative or evasive fashion, and
while they may not have been as "friendly" to him or as
aggressive in handling his problems as they might have
been absent the attacks, it is probable that the open attacks
caused them to take positive actions to the extent found
above, rather than something less or nothing at all. Hence,
the above circumstances tend to strengthen the conclusion
that they took action for him, though perhaps reluctantly,
where they reasonably felt that they could do so legally and
equitably, without showing him any favoritism as against
other union members, rather than the opposite. His
testimony indicates that he may have done things
differently or more aggressively if he were in their position,
but as they probably lacked his long experience as a union
official, they may have acted more slowly and cautiously
than he would, but this will not justify a finding that they
abused their discretion or failed properly to represent him
and other union members in the way they acted upon his
various complaints.
On all of the above facts and circumstances, and the
arguments pro and con thereon, I must conclude that
General Counsel has failed to prove by the requisite
preponderance of credible evidence in the record as a whole
that Respondent failed and refused to process grievances
properly for Elbert Person and caused him to lose overtime
work, as alleged in the complaint, in violation of Section
8(b)(1)(A) and (2) of the Act.19
I grant Respondent's motion to dismiss and hereby
dismiss the complaint in its entirety.
employer would pay the claim, because the Employer always maintained
the Union should pay its members for time spent on union business
19 1 find these remarks from credited testimony of William R. Ledin,
Norris W Anderson, and Michael J. Toronas
19 See United Steelworkers of America, Local 4338, etc, supra, also
General Box Company, 189 NLRB No. 42.