United Automobile Workers Local 509 (Fiat Chrysler Automobiles Group)

National Labor Relations Board - Board Decisions

Mar 17, 2016

363 NLRB No. 147 (N.L.R.B. 2016)

363 NLRB No. 147
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Union, United Automobile, Aerospace,
Agricultural Implement Workers of America
(UAW), Amalgamated Local Union No. 509,
AFL–CIO and Joe Moore. Case 28–CB–144872
March 17, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On September 8, 2015, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. March 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 In adopting the judge’s dismissal of the allegation that the Re-
spondent violated Sec. 8(b)(1)(A) and (2) of the Act by attempting to
cause Charging Party Joe Moore’s termination, we find that the record
fails to establish that the Respondent’s health and safety representative,
Mike Watson, acted as an agent of the Respondent when he reported
his altercation with Moore.
Larry Smith, Esq., for the General Counsel.
Stephen Yokich, Esq., counsel for the Respondent.
Thomas Stewart, Esq. (Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.), counsel for the Employer.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on July 28, 2015, in Kingman, Arizona. The
complaint herein,1 which issued on March 27, 2015, and was
based on an unfair labor practice charge that was filed on Janu-
ary 22, 2015, by Joe Moore, an individual, alleges that Interna-
tional Union, United Automobile, Aerospace, Agricultural Im-
plement Workers of America (UAW), Amalgamated Local
Union No. 509, AFL–CIO (the Respondent and/or the Union),
has been the exclusive collective-bargaining representative of
the employees at the Employer’s car endurance test facility in
Yucca, Arizona. It is alleged that on October 29, 2014,2 Moore
and Mike Watson, the Union’s health and safety representative
at the facility, had an argument about a health and safety issue
that Moore experienced and Watson reported the argument to
the Employer’s representative, with the intent to have Moore
suspended and terminated, and he was suspended and terminat-
ed by the Employer. It is alleged that by Watson’s actions, the
Respondent violated Section 8(b)(1)(A) and (2) of the Act.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Employer has been
an employer within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
II. THE FACTS
The facts can be stated briefly: on October 29, Moore and
Watson had a brief confrontation over a health and safety issue
that Moore experienced on October 2, unrelated to any union
activity, and Watson reported what occurred to the Employer’s
supervisor, but without any recommendation of what, if any-
thing should be done about it. After a brief investigation, the
Employer suspended and then terminated Moore. The sole
issue here is whether the Union violated the Act because Wat-
son reported the incident to the Employer, which resulted in
Moore’s discharge.
The complaint alleges that Watson held the position of the
Union’s health and safety representative and was an agent of
the Union within the meaning of Section 2(13) of the Act. The
Union, in its answer, admitted that he held the position of the
Union’s health and safety representative at the time “and that
Mr. Watson represents the interests of the UAW unit at the
Proving Grounds on health and safety matters. It denies the
other allegations of this paragraph.” Watson was appointed to
be the Union’s health and safety representative in late 2008 and
held the position until his retirement. He testified that as the

1 This was originally a consolidated complaint against Local 509
and Fiat Chrysler Automobiles Group, NV, the Employer, but the Em-
ployer settled its portion of the case prior to the opening of the record.
2 Unless indicated otherwise, all dates referred to herein relate to the
year 2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Union’s health and safety representative he had the authority to
act on health and safety issues on behalf of the Union. Watson
was asked if he was responsible for enforcing the health and
safety provisions of the contract between the Employer and the
Union and he answered that he does not have the authority to
enforce: “I don’t. . . all I can do is make aware issues, investi-
gate them, and turn over my findings. The health and safety
rep has no enforcement out there. . . you work with the compa-
ny health and safety person. You make them aware of the is-
sues. . . and then you try to resolve the issues for the safety of
the membership.” He testified that as the Union’s health and
safety representative, he has the authority to stop work, or
withdraw a vehicle from service, if there is “imminent risk” of
injury or death.
The unit involved in this matter is drivers, driver/mechanics,
mechanics, technicians, and stockroom employees employed at
the Employer’s Arizona Proving Ground in Yucca, Arizona and
the Union is the collective-bargaining representative of this
unit. At this facility, the employees test the Employer’s vehi-
cles by driving them at speeds up to 150 miles an hour. In ad-
dition to its current production vehicles, these employees also
test drive prototype vehicles and current production vehicles
containing possible future components. Moore began working
for the Employer as an endurance driver in 1999. Admittedly,
he was an excellent employee who was elected vice-chair of the
Union in 2005, and was on the Union’s bargaining committee
in 2008 and 2011. On October 2, while driving a vehicle, he
developed a bad headache and stomach ache. He radioed his
supervisor to tell him how badly he felt and was told to bring
the car back into the shop, which he did. When he returned, he
met Rob Canday, his regular supervisor and told him that he
wasn’t feeling well and Canday asked him to complete some
forms, but Moore told him that he felt sick and needed to go
home. He completed the reports and Canday offered to take
him to a medical center, but he refused and said that he just
needed to get home. Before leaving, Moore told him that the
problem might be carbon monoxide and that they should put a
carbon monoxide monitor in the car and Canday said that they
would test the vehicle at high speed. Moore left the facility and
on the way home he had to stop the car on the highway and he
vomited on the side of the road. When he returned home, he
took some aspirin and fell asleep. When he woke up, he felt
better.
Later that day, Vern Vanotti, a member of the bargaining
unit, prepared a report that stated, inter alia:
During 1st shift a driver reported having a headache, towards
the end of the shift while driving this vehicle . . . The driver
went home for the rest of the day. The driver could not con-
firm if it was due to exhaust gases or fuel odor.
The vehicle was scheduled to perform the EHSM test during
the second shift. But to be on the safe side the supervisor
made sure that this vehicle had a gas meter before the vehicle
went out to perform the test.
Toward the second half of the EHSM test the driver reported
a spike in CO levels…During the CO spike the HVAC mode
was not confirmed and since the spike in CO only happened
once and only during the EHSM. The vehicle was returned to
regular cycles on third shift with the gas meter. The vehicle
ran over the weekend with the meter and no issues.
Vanotti’s report on October 6 states:
On Monday 10/6/14 the engineer was notified about the issue
with this vehicle. At this point the vehicle was shut down to
investigate further.
All 4 vehicles were scheduled to run EHSM on second shift
again. At this time a plan was made to run all our vehicles with
the suspect vehicle in the front of the pack with a gas meter and
one of the rear vehicles with a gas meter as well.
No issues were reported during this run.
Watson testified that in Moore’s presence, Vanotti told him
that when he drove the car, all the alarms went off and Watson
told him to “shut it down right away.” Watson told a supervi-
sor that there were reports of CO in the vehicle and that it was
not to be driven without meters. He also told an engineer at the
plant to inspect the car, and a loose bolt that could cause a
small leak was discovered; it was tightened and repaired.
Moore testified that when he reported for work on October 3,
he asked Canday if there was anything wrong with the vehicle
that he drove the prior day and Canday said not that he was
aware of. Chris Moreland, the Union’s unit chairman, testified
that shortly after October 2, Moore requested a meeting with
him and his Steward, Roberto Martinez, about the possible
exposure to carbon monoxide on October 2 and they met on
October 8 at which time Moore told them about how he became
sick after driving on that day. In addition, a few days before
October 29, Watson told Moore that an engineer told him that
there was an exhaust leak in the vehicle he drove on October 2,
and that he shut down the vehicle and put in a work order so
that the fresh-air mode in the air conditioning would remain on
full time.
Moore testified that on the morning of October 29, he hap-
pened to see Watson and asked him, “Where are we on the
carbon monoxide poisoning issue?” Watson said that he didn’t
know and Moore said that he met with Scott Campbell and
Margaret Keely, both in the Employer’s HR department, and
Martinez on the subject and that they didn’t know where to
place the carbon monoxide meter, that there was no policy, and
Watson responded, “Well, so what, how does that include me?”
Moore then said that they didn’t know where to put the meter
and when to turn it off and Watson stuck his finger out and
said, “It’s my turn to talk. This is my turn” and Moore stopped
talking and Watson said, “he’s doing what he can but look,
dude, I’m not going to put a carbon monoxide meter in every
vehicle we have.” Moore then said that Vanotti had told him
that the carbon monoxide reading on the vehicle ‘was through
the roof’ and that he got sick and was vomiting while on the
way home. Watson laughed and said that he really wasn’t sick
and Moore said that he didn’t think that was funny. He began
to get upset and started to walk away and when he was about 20
feet away from Watson with his back turned, Watson said,
“fuck you man.” Moore stopped, turned around and began
walking toward Watson, who started walking toward him and
AUTOWORKERS LOCAL 509 (FIAT CHRYSLER AUTOMOBILES GROUP) 3
when he was about 6–8 inches from him,3 he told Watson,
“fuck you.” Watson then put his chest out and said, “do it, do
it” and Moore said, “do what?” Moore then turned around and
started walking away from Watson who used some vulgar
terms and Moore called him an asshole and walked away.4
Watson testified that as he arrived for work on October 29,
Moore asked him what was going on with the CO situation and
he answered that they had been working on it. Moore then said
that the drivers should all have personal meters and Watson
replied that would be nice, but it was up to the Employer if they
wanted to pay for them. Moore then asked what about the
meeting that he had with Campbell, Martinez and Keely and he
said that he was not at the meeting. Moore then told him that
on October 2 he got sick and almost died, and Watson said that
he didn’t know about that, and Moore responded, “Well, you
can just fuck off.” Watson then responded, “Well, you can
fuck off” and “he came back, got in my face very, very close
and was looking down on me and went around and around me.
Finally, I just said do what you are going to do, because I was
sick of it.” Watson testified that at that time, Moore, who is
taller and younger than he is, was about an inch away from
him. At that point, Moore turned and left the area.
At the conclusion of that situation Watson told Campbell that
he and Moore had “an altercation, and that it got very heated. . .
that we got very close to getting physical” and that he was con-
cerned about it. Watson was asked if he knew that by inform-
ing the Employer of the incident, it “could result in negative
consequences” for Moore and he testified that he never thought
that it would result in Moore’s termination. He did not ask
Campbell to discipline or fire Moore; he reported the incident
to prevent another incident like it from occurring again. He
was aware that the Employer has a zero-tolerance policy to-
wards harassment and violence, but did not understand that it
could result in discipline up to and including termination for
Moore. Watson did not receive any discipline because of the
incident. Campbell testified that Watson reported the incident
to him right after it occurred. He told him that it began with a
discussion of carbon monoxide in the vehicles and it escalated
from there and he wanted to report it, but the subject of disci-
pline never came up during the conversation. After getting
written statements from both Moore and Watson, he issued a
suspension (discipline pending) to Moore on the following day,
stating:
On 10/29/2014 you were placed on notice of suspension,
pending investigation, for possible violations of Standards of
Conduct #15 “Fighting, horseplay or other disorderly, disrup-
tive or unruly conduct.” This suspension was a result of a pre-
liminary investigation that ensued after a co-worker, UAW
H&S representative Michael Watson, informed HR that they
[sic] felt physically intimidated by your conduct in the South
Parking Lot on the morning of 10/29/2014 at approximately

3 His statement to the Employer states that at this time he “was very
close to him.”
4 Both Moore and Watson gave statements to the Employer about
this incident and there are no major differences between their testimony
and the written statements that each one gave to the Employer later that
day.
7:00 a.m.
During the preliminary investigation it was revealed, by your
own admission, that you willfully stopped, reversed course of
direction, and approached to within inches of Mr. Watson’s
face. Accordingly, this behavior is implied conduct that is in-
tended to likely be perceived as intending to create a fear of
bodily harm.
On November 3 Campbell prepared an executive summary of
the incident, which states that after Moore became agitated and
upset, he approached Watson to within 2 inches and screamed
“fuck you.” The statement further states:
Despite the confliction of who said “fuck you” first, by Mr.
Moore’s own admission, he stopped, turned around, and ap-
proached Mr. Watson at close range. These actions indicate
that he was the clear aggressor in this instant case.
Moore testified that later in the day on October 29, he went
with Martinez into a meeting with Campbell and Stanley Kind-
er, the test operations supervisor. Campbell said that he re-
ceived a report that he was in some kind of a confrontation with
Watson and that he walked toward him. Moore replied that he
walked away from Watson twice and even though both of them
had said fuck you, he was the one who walked away and
Campbell replied, “but you walked toward him and that’s all I
need.” Campbell and Kinder stepped out of the room and when
they returned, Campbell said that he was charging him with
fighting and horseplay and Moore replied that there was no
fight or horseplay, and he repeated that he was the one who
walked away. Campbell told him that since he was such a good
employee, he was not going to humiliate him by walking him
out of the building; rather he could walk out the side door with
Martinez. On November 11, he was told by Moreland and
Martinez that the Employer had fired him because of the Octo-
ber 29 incident and that the Union was grieving it at the second
level. On November 12, Campbell wrote to him saying that
after a review of the facts, it was determined that he violated
the Employer’s Standards of Conduct # 14 (“Threatening, in-
timidating, coercing, harassing, retaliating, or abusive words
and/or actions. . . ”) and 3–7 (“Workplace Violence Preven-
tion”) and that his suspension was being converted to a dis-
charge effective November 12. Moore had no prior discipline
while employed by the Employer.
Campbell testified that the Employer is very serious about its
workplace violence rules and as there were no witnesses who
could corroborate the events of October 29, he looked at the
statements prepared by Moore and Watson and based on them
he determined that Moore was “a clear aggressor” in the inci-
dent. Although he was aware that Watson said fuck you to
Moore, he was not punished for his actions.
Michelle Demarsh, who is employed by the Employer in the
stockroom, testified that she had a disagreement with Watson in
about early 2014 involving the location where the tires are
stored. She was angry and told Watson “to leave me the F…
alone, stay out of my F. . . ing business, and if he continued
with it, I would consider it harassment. He said that he could
go anywhere he wanted to.” She was not disciplined for this
incident. Watson testified that this incident involved a house-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
keeping issue and Demarsh yelled and cursed at him. He didn’t
report this incident to the Employer because Kinder witnessed
the incident. In 2010, temporary employees complained that
employee Richard Charlesworth was harassing them and tail-
gating their cars. Campbell testified that after an investigation,
Charlesworth was suspended for 30 days. Also in 2010, em-
ployee Robert Fry was suspended for 30 days for arguing loud-
ly with a female employee, pushing chairs out of the way, and
telling her: “Listen here, little girl.”
Admittedly, the Union has represented Moore in objecting to
his termination by grieving the termination. In fact, at the con-
clusion of the hearing, it was reported that the parties had set-
tled the grievance.
III. ANALYSIS
There are two issues to be determined: was Watson an agent
of the Union within the meaning of Section 2(13) of the Act,
and did the Union, by the action of Watson in reporting the
October 29 incident with Moore to Campbell, violate Section
8(b)(1)(A) and 8(b)(2) of the Act?
In Cornell Forge Co., 339 NLRB 733 (2003), the Board stat-
ed:
The burden of proving an agency relationship is on the party
asserting its existence. The agency relationship must be estab-
lished with regard to the specific conduct that is alleged to be
unlawful. An individual can be a party’s agent if the individu-
al has either actual or apparent authority to act on behalf of the
party. [Citations omitted]
In discussing apparent authority, the Board stated in Com-
munications Workers Local 9431 (Pacific Bell), 304 NLRB 446
fn. 4 (1991): “Under this concept, an individual will be held
responsible for actions of his agent when he knows or ‘should
know’ that his conduct in relation to the agent is likely to cause
third parties to believe that the agent has authority to act for
him.” “Apparent Authority is created through a manifestation
by the principal to the third party that supplies a reasonable
basis for the latter to believe that the principal has authorized
the alleged agent to do the act in question.” Shen Automotive
Dealership Group, 321 NLRB 586, 593 (1996). Watson was
appointed to the position of health and safety representative for
the Union in 2008, and held that position for approximately 6
years. He was the Union’s representative at the facility on
health and safety issues and worked with the Employer’s repre-
sentatives on these issues when they arose. However, he testi-
fied that he did not “enforce” these issues; his job was to make
the Union and the Employer aware of the issues when they
arose and to work with the Employer’s representative to correct
them, although he had the authority to take a vehicle out of
service if he determined that there was imminent risk of injury
or death from the vehicle. I find that Watson was not an agent
of the Union as it regards to Moore’s discipline. The violation
alleged here is Watson’s statement to Campbell about the con-
frontation that he had with Moore and there is no evidence that
Watson was authorized to act for the Union on subjects of dis-
cipline of employees, or that Campbell would reasonably be-
lieve that the Union had authorized him to complain about
Moore’s actions on October 29; rather, it is more likely that
Campbell understood that Watson was complaining personally
about Moore’s actions. Martinez the steward, and Mooreland,
the unit chairman, would have been the Union’s agents who
would discuss discipline with the Employer, and there is no
evidence that they were aware of the situation until after the
incident was reported to Campbell. For these reasons I find
that the evidence does not support a finding that Watson was an
agent of the Respondent.
After observing Moore and Watson, as well as the relevant
testimony, I credit Moore’s version of the events of October 29
although it appears that the testimony of both was somewhat
exaggerated. I therefore find that Moore initially walked away
from Watson and after Watson cursed him, he turned around
and walked toward Watson and Watson walked toward him.
When they were about 6–8 inches apart he cursed Watson, who
pushed his chest out and said, “Do it.” After asking what he
meant, and cursing Watson again, he walked away. At the
conclusion of this incident, Watson told Campbell that he had
an “altercation” with Moore that got very heated and almost got
physical, and that he was concerned about it. He did not ask
Campbell to discipline or fire Moore and he reported it to pre-
vent a similar incident from occurring again. Section 8(b)(2) of
the Act makes it an unfair labor practice:
To cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) or to dis-
criminate against an employee with respect to whom mem-
bership in such organization has been denied or terminated on
some ground other than his failure to tender the periodic dues
and the initiation fees uniformly required as a condition of ac-
quiring or retaining membership.
As to the initial requirement, in International Operating Engi-
neers, Local 12 (Kiewet Industrial), 337 NLRB 544,545
(2002), the Board stated: “An 8(b)(2) violation can be estab-
lished by direct evidence that the union sought to have the em-
ployer discriminate, or by sufficient circumstantial evidence to
support a reasonable inference that the union requested that the
employer discriminate.” Avon Roofing & Sheet Metal Co., 312
NLRB 499 (1993). Toledo World Terminals, 289 NLRB 670,
673 (1988),stated: “to establish an ‘attempt to cause’ violation,
there must be some evidence of union conduct; it is not suffi-
cient that the employer’s conduct might please the union.” In
Quality Mechanical, Inc., 307 NLRB 64, 66 (1992), the admin-
istrative law judge as affirmed by the Board, stated: “the Board
and reviewing courts have long held that a union may be held
accountable for results triggered by what on the surface appears
an innocent act which the union well knew would produce a
desired result.” Although Watson did not ask Campbell to
discipline Moore, he knew of the Employer’s zero-tolerance
policy toward violence and harassment, and he must have
known that either he, Moore, or both, would be disciplined as a
result of his reporting the incident to Campbell.
However, Section 8(b)(2) is not limited to any discharge; it
states that the discharge has to have been in violation of Section
8(a)(3) of the Act, and the complaint alleges that the Respond-
ent caused the Employer to discriminate against Moore in vio-
lation of Section 8(a)(3) of the Act. Although I have found that
Watson reported the incident to Campbell knowing that it might
AUTOWORKERS LOCAL 509 (FIAT CHRYSLER AUTOMOBILES GROUP) 5
result in discipline to Moore, it was done because he was angry
with Moore after their confrontation on October 29, having
nothing to do with union activity.5 Unlike most cases involving
Section 8(b)(2) of the Act, Moore supported the Union, has
served as a union officer, and was a member of the Union’s
bargaining committee, and there is no evidence of animus on
the part of the Union caused by his union activities. In addi-
tion, there is no evidence that he engaged in any antiunion or
dissident activities. In Operating Engineers Local 478 (Stone
& Webster), 271 NLRB 1382 (1984), and Graphic Communi-
cations International Union (Bang Printing), 337 NLRB 662
(2002), the Board found 8(b)(2) violations because of the
charging parties’ union activities: dissident activities and activi-
ties opposing the reelection of the union’s business manager.
As the discharge that resulted from Watson’s report to Camp-
bell on October 29 had no connection with Section 8(a)(3) of
the Act or dissident or antiunion activities by Moore, I recom-
mend that the allegation be dismissed. Operative Plasterers &
Cement Masons, Local No. 299, 257 NLRB 1386 (1981); UAW,

5 Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323 NLRB
1042 (1997), and Good Samaritan Medical Center, 361 NLRB No. 145
(2014), cited by counsel for the General Counsel in his brief, both
involved charging parties whose antiunion activity resulted in the un-
ions reporting them to their employer, resulting in the employee’s dis-
charge in Good Samaritan, supra, while in Paperworkers, supra, the
employer’s investigation resulted in the employee being exonerated.
Local 812 (Acklin Stamping Co.), 355 NLRB 824 (2010).
CONCLUSIONS OF LAW
1. Fiat Chrysler Automobiles Group, NV has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. International Union, United Automobile, Aerospace, Ag-
ricultural Implement Workers of America (UAW), Amalgamat-
ed Local Union No. 509, AFL–CIO, has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Respondent did not violate the Act as alleged in the
complaint.
On these findings of fact, conclusions of law and based upon
the entire record, I hereby issue the following recommended6
ORDER
It is recommended that the complaint be dismissed in its en-
tirety.
Dated, Washington, D.C. September 8, 2015

6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.