Local No. 980, United Automobile, Aerospace & Agricultural Implement Workers Of America

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1378 (N.L.R.B. 1986)

1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 980, United Automobile, Aerospace & Ag-
ricultural Implement Workers of America and
Local 32, Office and Professional Employees'
International Union, AFL-CIO. Case 22-CA-
11263
31 July 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 12 January 1983 Administrative Law Judge
D. Barry Morris issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Local No. 980, United Automobile,
Aerospace & Agricultural Implement Workers of
America, Edison, New Jersey, its officers, agents,
and representatives , shall take the action set forth
in the Order as modified.
Insert the following as paragraph 2(d) and relet-
ter the subsequent paragraphs.
"(d) Preserve and , on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
1 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In view of our agreement with the judge 's finding that employee Caro-
lyn Seres is not a confidential employee, we find it unnecessary to pass
on the judge's statements that confidential employees are not entitled to
the protection of and are excluded from the coverage of the Act.
a Contrary to the Respondent 's exceptions, the Respondent 's require-
ment that employee Carolyn Seres obtain union representation in order to
retain her job was alleged in the complaint to be a violation of Sec.
8(aXl).
s We will add to the Order the Board's customary provision for the
preservation of records necessary to compute the Respondent's backpay
liability.
Marta Figueroa, Esq., for the General Counsel.
Arthur J. Timins Esq. (Timins and Lesniak), of Elizabeth,
New Jersey, for the Respondent.
Howard A. Goldberger, Esq., of West Orange, New
Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This
case was heard before me at Newark, New Jersey, on
August 2 , 3, 4, and 13, 1982 . On a charge filed on No-
vember 6 , 1981,1 a complaint was issued on December
18, alleging that Local No. 980 , United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica (Respondent) violated Section 8(axl) and (3) of the
National Labor Relations Act. Respondent filed an
answer denying the commission of the alleged unfair
labor practices.
The parties were given full opportunity to participate,
to produce evidence , to examine and cross-examine wit-
nesses, to argue orally, and to file briefs . Briefs were
filed by the General Counsel and by Respondent.
On the entire record of the case, including my obser-
vation of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a labor organization within the meaning
of Section 2(5) of the Act, maintains an office in Edison,
New Jersey. During the 12 months preceding the issu-
ance of the complaint, Respondent remitted dues and ini-
tiation fees in excess of $50,000 from its Edison office to
UAW's Detroit, Michigan office. Accordingly, I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. In addition,
Local 32, Office and Professional Employees ' Interna-
tional Union, AFL-CIO (Local 32) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Issue
The issues in this proceeding are whether (1) Carolyn
Seres was a "confidential" secretary not protected by the
Act; (2) she was required by Respondent to obtain union
representation as a condition of retaining her employ-
ment; (3) she was suspended for picketing ; and (4) she
was discharged for providing information to a newspaper
reporter in violation of Section 8(a)(1) and (3) of the
Act.
B. The Facts
1. Background
Carolyn Seres was hired as a secretary for Respondent
on September 19, 1977, by then president , Nicholas Val-
lese. Besides Seres, Respondent had two other employ-
' All dates refer to 1981 unless otherwise specified.
280 NLRB No. 161
AUTO WORKERS LOCAL 980
ees, a bartender and a janitor . Seres' duties included an-
swering the telephone , lodging grievances, typing finan-
cial reports, and typing correspondence . Respondent had
entered into an agreement with Local 142 of the Office
and Professional Employees' International Union cover-
ing the prior secretary. The term of that agreement ex-
pired January 30, 1979. Seres testified that in December
1977 Vallese handed her a copy of that agreement and
told her that she would have the same type of contract.
2. Union representation
Seres credibly testified that in June 1981 there was an
executive board meeting during which she was told, "I
have to seek union representation in order to be able to
work for Local 980, and I have thirty days in which to
do it." Ellen Edmond, recording secretary of Respond-
ent, corroborated Seres' testimony . She stated that the
minutes of the executive board meeting of May 22 re-
flected that "bur secretary has 30 days in which to look
for an agent." Seres testified that she was unable to get a
union to represent her. However , towards the end of
June she contacted Partrick Tully, business manager of
Local 32, and was awaiting a call from him. Seres testi-
fied that Earl Nail, president of Respondent , stated that
"he was going to contact Mr. Pat Tully as well, and set
up some type of a meeting." Nail corroborated this testi-
mony and stated that in June or July "I called an agent
for her, Mr. Tully."
Seres testified that she signed an authorization card for
Local 32 and that there were several negotiating sessions
concerning her contract between Tully on behalf of
Local 32 and negotiating committee for Respondent,
which consisted of Nail , Ray Joraski , financial secretary,
and Steve Aniskevich, trustee.
Nail testified that he telephoned Seres on Thursday
night, October 22, to discuss the contract. He agreed to
give her a $25 raise , the requested breaktime , and insur-
ance. He told her, however, that he was unable to agree
to retirement benefits. Nail told Seres to call Tully and
arrange for a meeting the following day. Nail testified
that the negotiating committee met with Tully on
Friday, October 23. At that time Respondent agreed to a
$25 raise , two 15-minute breaks, and increases in insur-
ance, vacation time, and severance pay. The one area in
which agreement could not be reached was retirement
benefits. Joraski testified that agreement could not be
reached on such matters as a pension plan and a cost-of-
living provision, and that the negotiations broke off at
that time.
3. Events of October 25 and 26
On Sunday, October 25, Respondent held a member-
ship meeting at the union hall. Seres and Tully stood
outside of the hall, passing out leaflets which asked for
the members ' support in Seres ' efforts to obtain a con-
tract . Seres credibly testified that during the course of
the meeting Trustee Joe Nemeth came out of the build-
ing and asked Seres for her keys to the building . She re-
plied that she did not have keys with her. When the
meeting was over, Nail approached her and told her to
bring in the keys the following day.
1379
On Monday, October 26, Seres reported to work, at
which time she turned in the keys to Nail. She testified
that Nail told her "we are going to have a meeting this
afternoon with the Executive Board, and I will call you
about 4:30, but in the meantime you won't be working
today." Nail testified that he called Seres into his office
and told her, "I 'm going to suspend you and I 'm going
to investigate what happened at the union meeting. I
want to talk to some people to see if you are involved."
4. Events leading up to Seres' termination
On October 28 an article appeared in a local newspa-
per entitled "UAW, Secretary in Job Dispute." The arti-
cle reported that Seres said "the union suspended her
from work after she picketed a union meeting Sunday to
protest its treatment of her." The article also stated that
Seres and Tully said "the UAW has cut her benefits and
dragged its feet on negotiating her new contract." The
article continued:
She said her sick leave days have been eliminat-
ed, her disability pay cut and her severance pay re-
duced . She also said she receives no retirement plan
and no breaks except a half hour for lunch every
day. Since the dispute began, she said she some-
times has received her paycheck one or two days
late.
Seres testified that she told the reporter that Respond-
ent proposed to Tully to "cut down" sick days and that
in the only proposed contract presented to her disability
pay was being decreased. She also testified that on one
occasion her paycheck was 3 days late. Seres testified
that in certain respects she was misquoted and in some
respects she told the reporter "something less the entire
truth."
Nail testified that on Wednesday afternoon, October
28, he was approached by members of the executive
board and told that there was a lot of pressure and
phone calls because of the newspaper article and that
there would be an attempt to fire Seres at the meeting to
be held on October 30. Nail testified, "I was highly upset
with what was put in the newspaper, the lies that were
put in there, and I have to say, that's what helped me to
fire her." Similarly, Joraski testified that until October 23
"there was no decision that she was going to be fired."
Indeed , they were "negotiating an increase for her." He
conceded that the decision to fire Seres came as a result
of the newspaper article.
5. Letter of November 2
On November 2 Nail sent a letter to Seres advising her
that on October 30 the executive board had terminated
her employment. The letter stated that "we can no
longer afford a full time secretary" and listed eight rea-
sons why Seres' work record had been unsatisfactory.
These included chronic lateness, chronic absenteeism,
leaving work early without permission, making personal
toll calls, and poor work performance, particularly with
respect to taking telephone messages.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edmond testified that the minutes of the October 30
meeting reflected that the reasons for Seres' discharge
were "she used the phone fraudulently, gave out private
addresses illegally, absenteeism and lateness after being
notified. She gave the newspaper false statements."
Joraski testified that he advocated Seres' dismissal in
June or July 1980 because of what he regarded as Seres'
having signed some correspondence unauthorizedly. He
testified that subsequent to that time her performance
was "very poor." He testified that Seres was "chronical-
ly late," was "absent quite often, never notifying us,"
and she "left work without permission." Joraski further
testified that Seres' "heavy" tardiness began in late 1980
and continued through 1981; that her chronic absentee-
ism began in October 1980 and continued through 1981;
and that problems with her phone messages began in
April 1981 and continued until her termination . Similar-
ly, Nail testified that several of the board members
wanted Seres discharged in April 1981 because of "her
attitude, her workmanship and her lateness and her ab-
senteeism."
Seres testified that she received a $50-per-week rate in
January 1981. Joraski testified that the negotiating com-
mittee unanimously proposed an increase in Seres' salary
from $250 to $275. The decision was made on October
21 and was transmitted to Tully on October 23. Nail tes-
tified that he wanted to give Seres a raise in May or
June 1981 but "wanted to wait until she had a union rep-
resenting her" before giving her a raise . Nail further tes-
tified that he had not decided to discharge Seres until the
newspaper article came out because it was "the final
straw." He conceded that "had there not been the news-
paper article" she would not have been terminated.
C. Discussion and Conclusions
1. Confidential secretary
Respondent argues that Seres is a "confidential" secre-
tary and, as such, does not enjoy protection under the
Act. Vallese testified that he hired Seres as his private
and confidential secretary. He testified that she dealt
with confidential matters such as grievances between Re-
spondent 's members and Ford and negotiations between
Ford and the Union. Nail testified that the confidential
papers she dealt with were "Union business letters, Local
negotiations, letters to the International, letters to the
Region" and grievances.
In Hendricks County Rural Electric Membership Corp.,
236 NLRB 1616, 1619 (1978), the Board determined that
the personal secretary to the corporation's chief execu-
tive officer was not a "confidential" secretary because
she did not act in a confidential capacity with respect to
labor relations matters . The Supreme Court reversed the
judgment of the court of appeals which denied enforce-
ment. NLRB v. Hendricks County, 454 U.S. 170 (1981).
The Supreme Court approved the Board's application of
a "labor-nexus" test in identifying those employees who
should be excluded from the Act's protection because of
access to confidential business information. In outlining
the rationale behind the Board's initial exclusion of cer-
tain confidential employees, the Supreme Court referred
to the Board's decision in Hoover Co., 55 NLRB 1321,
1323 (1944), in which the Board stated:
[M]anagement should not be required to handle
labor relations matters through employees who are
represented by the union with which the Company
is required to deal and who in the normal perform-
ance of their duties may obtain advance information
of the Company's position with regard to contract
negotiations, the disposition of grievances or other
labor relations matters.
The fact that Seres may have dealt with confidential
matters relating to Respondent's members with respect
to their relations with Ford Motor Company or with re-
spect to negotiations between the Union and Ford Motor
Company is not the type of confidential relationship
which would exclude Seres from coverage under the
Act. As evidence by the Board's rationale in Hoover Co.,
supra, activities which meet the "labor-nexus" require-
ment are those activities which relate to dealings be-
tween the Union and its employees. Respondent's only
employees were Seres, a bartender, and a janitor. The
record contains no evidence that Seres played any role
with respect to labor relations between Respondent and
the janitor or bartender. Accordingly, I conclude that
the "labor-nexus" requirement has not been met and,
consequently, Seres did not lose her protection under the
Act.
2. Union membership as a condition of employment
The complaint alleges that in June Nail told Seres that
she was required to obtain a collective-bargaining repre-
sentative as a condition of employment, in violation of
Section 8(a)(1) of the Act. Seres credibly testified that
she was told "in order to continue working in Local 980
I had to have union representation." Nail conceded this
when he testified that we "put her on notice at a Board
meeting."2 Accordingly, I find that in June 1981 Re-
spondent advised Seres that in order to continue her em-
ployment she would be required to obtain union repre-
sentation . This constitutes a violation of Section 8(axl)
and (3) of the Act . See Teamsters Health & Welfare Fund
I, 233 NLRB 814, 818 (1977).3
3. Suspension
At the hearing the complaint was amended to allege
that on October 26 Respondent suspended Seres because
of her union activity, in violation of Section 8(a)(1) and
(3) of the Act. The evidence shows that on Sunday after-
noon, October 25, Seres was distributing leaflets to Re-
spondent's members who were entering the union hall
for a membership meeting. During the course of the
meeting, Trustee Nemeth came out of the meeting and
2 As previously noted, the minutes of the May 22 executive board
meeting state "our secretary has thirty days in which to look for an
agent."
S The evidence also shows that Nail was instrumental in obtaining
Tully as Serea' representative . Although such assistance may have consti-
tuted a violation of Sec. 8(aX2) of the Act, inasmuch as the complaint
contains no such allegation , I am making no finding with respect thereto.
AUTO WORKERS LOCAL 980
asked Seres for her keys . After the meeting was over,
Nail approached Seres and told her to turn in her keys
the following day. When Tully asked Nail whether he
was firing Seres, Nail replied , "You are striking." The
following day Nail told Seres she was suspended and
told her to turn in her keys . Although Nail testified that
he suspended Seres to "investigate what happened at the
union meeting," I fmd that she was suspended because of
her distributing the leaflets on October 25. Thus, it was
during that time that Nemeth and Nail directed Seres to
turn in her keys. This action constitutes a violation of
Section 8(a)(1) and (3) of the Act.
4. Termination
On October 28 an article appeared in a local newspa-
per concerning Seres' dispute with Respondent . The arti-
cle was generally factual , stating that after Seres and
Tully picketed the meeting on Sunday , Nail asked Seres
to "turn in her keys ." The article reported that Seres
said several of her benefits were curtailed , that she "re-
ceives no retirement plan and no breaks except a half
hour for lunch every day," and that "she sometimes has
received her paycheck one or two days late." Seres testi-
fied that she was misquoted in certain respects and that
some of the statements were not entirely true . The exec-
utive board members were upset over the article and, as
Joraski testified , it was the "final thing that caused"
Seres' termination.
As the Board stated in American Cast Iron Pipe Co.,
234 NLRB 1126, 1131 (1978), enfd. 600 F.2d 132 (8th
Cir. 1979), "within the area of concerted activities, false
and inaccurate employee statements are protected so long
as they are not malicious ." Although the October 28 arti-
cle contained some inaccuracies , the presentation was
generally factual . The record contains no evidence that
the statements made by Seres to the reporter were in any
way malicious . Accordingly, if Seres' termination was
because of the October 28 newspaper article, such termi-
nation would be violative of the Act. See Allied Aviation
Service Ca of New Jersey, 248 NLRB 229 231 (1980);
Richboro Community Mental Health Council, 242 NLRB
1267, 1268 (1979).
Respondent contends , however, that the newspaper ar-
ticle was merely the "final straw" in its decision to ter-
minate Seres . In its letter of November 2, Respondent
pointed out that Seres' work record was unsatisfactory
inasmuch as she was chronically late, chronically absent,
left work early without permission, and made personal
toll calls and her work performance was poor , particu-
larly with respect to taking telephone messages. In addi-
tion, the letter pointed out that "we can no longer afford
a full time secretary." I find the reasons stated in the No-
vember 2 letter are clearly pretextual. Joraski testified
that beginning in June or July 1980 , Seres' performance
was "very poor." She was chronically late, chronically
absent, and left work without permission . Similarly, Nail
testified that several executive board members were dis-
satisfied with Seres as far back as April 1981 because of
her unsatisfactory attitude, workmanship , lateness, and
absenteeism.
If the reason for Seres' termination was, indeed, her
poor work performance , one would have expected her
1381
termination to have taken place in mid- 1980 or certainly
no later than April 1981. On the contrary, however,
Seres received a substantial pay increase in January 1981
and the negotiating committee , which included Joraski as
one of its members , recommended a raise as late as Octo-
ber 23. Clearly, instead, it was the newspaper article of
October 28 which prompted Seres' termination. Nail
conceded "had there not been the newspaper article,"
she would not have been terminated.
Accordingly, I fmd that Seres was terminated because
of the newspaper article which appeared on October 28.
This constitutes a violation of Section 8(a)(1) and (3) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 32, Office and Professional Employees ' Inter-
national Union, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. By requiring Seres to obtain union representation as
a condition of retaining her employment , Respondent has
engaged in an unfair labor practice within the meaning
of Section 8(a)(1) and (3) of the Act.
4. By suspending Seres because of her distributing leaf-
lets and by terminating her because of her statements to
a newspaper reporter which subsequently appeared as a
newspaper article, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I fmd it necessary to order it to
cease and desist therefrom and to take affirmative action
designed to effectuate the policies of the Act.
Because Respondent suspended and discharged Caro-
lyn Seres in violation of the Act, I find it necessary to
order Respondent to offer Seres full reinstatement to her
former position or, if such position no longer exists, to a
substantially equivalent position , without prejudice to her
seniority or other rights and privileges, and make her
whole for any loss of earnings she may have suffered
from the time of her suspension to the date of Respond-
ent's offer of reinstatement . Backpay shall be computed
in accordance with the formula approved in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest computed
in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977).4
On the foregoing findings of fact and conclusions of
law, and on the entire record , pursuant to Section 10(c)
of the Act, I issue the following recommendeda
4 See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962).
If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall , as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Local No. 980, United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica, Edison, New Jersey, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Requiring its employees to become members of a
union as a condition to retaining their employment.
(b) Discriminatorily suspending and discharging em-
ployees for activities protected by Section 7 of the Act.
(c) The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge's rulings, findings, and conclu-
sions and to adopt the recommended Order.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Carolyn Seres immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position , without prej-
udice to her seniority or other rights and privileges.
(b) Make whole Carolyn Seres for any loss of earn-
ings, in the manner set forth in the remedy section.
(c) Remove from its files any reference to the suspen-
sion and discharge of Carolyn Seres and notify her in
writing that this has been done and that evidence of the
unlawful suspension and discharge will not be used as a
basis for future personnel actions against her.
(d) Post at its office in Edison, New Jersey, copies of
the attached notice marked "Appendix."e Copies of the
notice on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent,
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
6 this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT require employees to be members of a
union in order to continue their employment with us.
WE WILL NOT discriminatorily suspend or discharge
employees for activities protected by Section 7 of the
National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL offer full and immediate reinstatement to
Carolyn Seres to her former position or, if such position
no longer exists , to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges and WE WILL make her whole for any loss of
earnings she may have suffered by reason of her suspen-
sion and discharge, plus interest.
WE WILL remove from our files any references to the
suspension and discharge of Carolyn Seres, and notify
her in writing that this has been done and that evidence
of her unlawful suspension and discharge will not be
used as a basis for future personnel actions against her.
LOCAL No. 980, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA