Auto Workers (General Motors Corp.)

National Labor Relations Board - Board Decisions

Aug 16, 1999

328 N.L.R.B. 1205 (N.L.R.B. 1999)

AUTO WORKERS LOCAL 735 (GENERAL MOTORS CORP.) 1205
Local 735, International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America (UAW), AFL–CIO (General Mo-
tors Corporation) and Thomas G. DeMiro. Case
7–CB–11729
August 16, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On May 7, 1999, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Charging
Party filed exceptions and a supporting 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 brief and has decided to
affirm the judge’s rulings,1 findings, and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

Robert A. Drzyzga, Esq., for the General Counsel.
Michael B. Nicholson, Esq., of Detroit, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me in Detroit, Michigan, on February 8, 1999,
pursuant to a complaint and notice of hearing (the complaint)
issued by the Regional Director for Region 7 of the National
Labor Relations Board (the Board) on August 25, 1998.1 The
complaint, based on an original and first and second amended
charges filed by Thomas G. DeMiro (DeMiro) alleges that Lo-
cal 735, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
AFL–CIO (the Respondent or Union) has engaged in certain
violations of Section 8(b)(1)(A) of the National Labor Rela-
tions Act (the Act). The Respondent filed a timely answer to
the complaint denying that it had committed any violations of
the Act.
Issues
The complaint alleges that on April 21, Respondent, by its
agent Gary O’Neal, at the Ypsilanti Powertrain plant, threat-
ened employees of the General Motors Corporation (the Em-
ployer) with physical harm because they did not pay union dues
to Respondent. Additionally, on May 1, O’Neal confirmed to
an employee of the Employer that the statements made were
threats of physical harm.

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
1 All dates are in 1998 unless otherwise indicated.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing2
FINDINGS OF FACT
I. JURISDICTION
The Employer is a corporation engaged in the manufacture
and nonretail sale and distribution of automobiles and related
products in Detroit, Michigan, with a facility and place of busi-
ness in Ypsilanti, Michigan, where it annually sold and shipped
from its facility located within the State of Michigan goods
valued in excess of $50,000 directly to points outside the State
of Michigan. The Respondent admits and I find that the Em-
ployer is engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that it is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In order to put the alleged threats in perspective, the follow-
ing discussion is necessary. First, it must be noted that DeMiro
vigorously contested the Union’s right to require him to pay
dues and fees under the union-security clause between the Em-
ployer and the Union (G.C. Exh. 4), in accordance with his
rights as enunciated under the case of Communications Work-
ers v. Beck, 487 U.S. 735 (1988). In this regard, DeMiro re-
voked his dues-checkoff authorization in late 1997, and de-
manded from the Union sufficient information to enable him to
intelligently decide whether to object to paying for union activi-
ties not germane to the Union’s duties as bargaining agent.
The Union apprised DeMiro of his dues obligation and the
amount owed for activities related to collective bargaining and
administration of the collective-bargaining agreement. During
the course of the communication between DeMiro and the Un-
ion, he became delinquent in his dues for the period from De-
cember 1997 through April 1998. On April 29, the Respondent
apprised DeMiro of his total dues arrearage and informed him
that any failure to make the payment by June 1, may result in a
request to discharge him from his employment with the Em-
ployer (R. Exh. 21). Thereafter, on October 2, the Union wrote
the Employer and discussed DeMiro’s continued delinquency
but did not demand that he be discharged because they wanted
to be sure that DeMiro fully understood his obligation to pay
dues. In fact, at no time prior to or after November 10, when
the Union finally received DeMiro’s full payment for back
dues, has the Union ever requested that DeMiro be discharged
for refusing to pay dues.
Second, one of the two employees involved in the conversa-
tion with O’Neal on April 21, is Amil Elrod. He has worked
for the Employer since 1965 and has been a member of the
Union since that time. By letter dated February 16 (G.C. Exh.
7), Elrod appealed the dismissal of an unrelated unfair labor
practice charge to the Board’s General Counsel in Washington,
D.C. He provided copies to the Employer and the Union, and
stated that he desired to renounce his membership, revoke his
2 The Respondent’s motion to correct the transcript, dated March 17,
1999, is granted and received in evidence as R. Exh. 28.
328 NLRB No. 172
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
union membership card and cease all union dues deductions.
Although the Union and the Employer acknowledge receiving
this letter, the Employer never removed Elrod from dues check-
off authorization and he continues to pay his dues in this man-
ner. The second employee involved in the April 21 conversa-
tion with O’Neal is Darell Maschke. He has worked for the
Employer since 1966 and was a member of the Union until
March 26, when he resigned and revoked his dues-checkoff
authorization. During the course of extensive written commu-
nication between Maschke and the Union, Maschke became
delinquent in his dues for a short period of time before settling
his obligations in full on May 18. At no time during the delin-
quency period, did the Union ever request the Employer to
discharge Maschke for refusing to pay union dues.
B. Gary O’Neal’s Status
O’Neal is a long time employee of the Employer who regu-
larly works as an educator and trainer, and as of May 1996, was
elected as a trustee of the Union’s executive board. The Union
stipulated that O’Neal is an agent of the Union for all purposes
except in the collection of dues.
The Respondent argues that even if O’Neal made the alleged
statements attributed to him in the complaint, that since he is
not an agent of the Union for the collection of dues, the state-
ments cannot be imputed to the Union.
It is well established that apparent authority results from a
manifestation by the principal to a third party that creates a
reasonable basis for that party to believe that the principal has
authorized the alleged agent to perform the acts in question.
See generally Dentech Corp., 294 NLRB 924 (1989), and Ser-
vice Employees Local 87 (West Bay), 291 NLRB 82 (1988).
Thus, in determining whether statements made by individuals
to employees are attributable to the employer, the test is
whether under all the circumstances, the employees “would
reasonably believe that the employee in question [alleged
agent] was reflecting company policy and speaking and acting
for management” Waterbed World, 286 NLRB 425, 426–427
(1987).
O’Neal admitted that he knew Elrod and Maschke for ap-
proximately 30 years and both employees were aware that
O’Neal has been a trustee sitting on the Union’s executive
board since May 1996. O’Neal is one of seven individuals that
comprise the executive board and acts as a conduit for relaying
and enforcing the Respondent’s decisions, directions, policies,
and views. I conclude that given the position in which the Re-
spondent has entrusted O’Neal, it was reasonable for Elrod and
Maschke to believe that any statements made by O’Neal that
involved the collection and non payment of union dues were
uttered with the full authority of the Union. Thus, I find in the
particular circumstances of this case, that O’Neal is an agent of
Respondent within the meaning of Section 2(13) of the Act and
if he made any unlawful statements, it can be imputed to the
Union.
C. The Facts
Amil Elrod testified that on April 21, around 6:10 a.m. on his
way to a job assignment, Gary O’Neal advised him “Better
watch your back.” Elrod replied, “What do you mean?” and
O’Neal said, “They are out to get you.” O’Neal then told Elrod
to get back with him later.
Around 9:10 a.m. on the same day, O’Neal and Elrod met on
the workfloor along with employee Darell Maschke. When
Elrod asked what he meant by the statement, “Better watch
your back,” and asked, “Is their someone out to hurt me?”
O’Neal said, “Be very careful because they have a special
committee set up by a financial group known as the Pontiac
Group.” O’Neal explained that the Pontiac group was estab-
lished through a financial group originally set up to take care of
the Grand Rapids businessmen that didn’t allow unions in their
plants. He also said, “that if an employee does not pay local
union dues, that financial secretary Chuck Rogers has a special
number in Pontiac where he will call in a favor.” Elrod then
asked if his life was in danger and O’Neal replied, “Yes.”
O’Neal then said, “that they were going to make an example of
‘the Mexican,’ Tom DeMiro, who just won a settlement in a
recent NLRB decision, and that the people who work for the
Employer had to pay union dues even if they did not want to.”
Elrod and Maschke questioned O’Neal on how he found out
this information and that Elrod was not paying union dues, and
he said, “that he knew about it from being on the Executive
Board.” Maschke also testified that O’Neal made the above
comments in his presence on April 21 and that he telephoned
DeMiro on the same day to apprise him what O’Neal had said.
On April 22, both Elrod and Maschke made a report of their
conversation with O’Neal to the U.S. Department of Labor,
Racketeering Division. Special Agent Jeff Dancer informed
them that due to the nature of the complaint, to contact the
Michigan Department of State Police and file a complaint with
that department. On April 24, Elrod and Maschke went to the
state police office but were told to come back on April 28. On
April 28, Elrod and Maschke met with Trooper Lee Victorian
and Detective Sergeant Albright and related the above conver-
sation that took place with O’Neal on April 21. Additionally,
Elrod and Maschke told the police officers that the executive
board held a meeting at the Black Lake UAW education facility
in northern Michigan, where they were setting up and conspir-
ing against nonpaying union members and the Pontiac Group
was mentioned.
On April 30, Victorian and Dancer attempted to make con-
tact with O’Neal at his residence. A message was left with a
family member and a meeting was arranged for May 1, at the
police station.
Elrod further testified that he had a conversation on May 1,
around noon, in O’Neal’s office. Elrod asked O’Neal if he was
able to get the telephone number for the Pontiac group and
O’Neal said, “no.” Elrod asked O’Neal whether he thought this
is a death threat and they are out to get me? O’Neal, according
to Elrod said, “Yes it is.” Elrod also testified that O’Neal
promised him that he could listen to the tapes that were made of
O’Neal’s conversation with the police officers.
On May 1, around 3 p.m., O’Neal met with Victorian and
Dancer at the police station.
O’Neal cooperated fully and told the police officers that El-
rod and Maschke have been acquaintances and friends for the
last 30 years. He also said that he tried to explain to Elrod that
he should “watch his back” as he was trying to warn Elrod to
watch out for Maschke, and that he was afraid Maschke was
going to cause Elrod some problems at work that could lead to
his being fired. O’Neal further stated that there is no such
group as the Pontiac Group but there is a group known as the
Grand Rapids businessmen, but this is an entirely different
organization that deals strictly with manufacturing with the
Employer and has nothing to do with any type of illegal activ-
ity. O’Neal opined that he felt that Maschke was “playing El-
rod into his favor” to gain more of a political stance when he
AUTO WORKERS LOCAL 735 (GENERAL MOTORS CORP.) 1207
attempted to run again as a union official. O’Neal told the po-
lice officers, as he testified in the hearing, that the alleged
threats are bogus, were never made, and do not exist except
fictitiously.
Financial Secretary Charles Rodgers testified that Elrod is
paying and always has paid his dues through checkoff authori-
zation. He knew nothing about the collection of dues in Grand
Rapids and does not have a telephone number to call to harm
people for not paying union dues. Rogers further testified that
while he attended an executive board meeting at Black Lake, it
was solely for the purpose of training and discussing internal
union business including the collection of dues but no conver-
sations took place concerning conspiring against nondues pay-
ing union members.
D. Discussion and Analysis
The General Counsel alleges in paragraph 9 of the complaint
that about April 21, Respondent, by its agent Gary O’Neal, at
the Ypsilanti Powertrain plant, threatened employees of the
Employer (Elrod and DeMiro) with physical harm because they
did not pay union dues to Respondent. Additionally, in para-
graph 10 of the complaint, the General Counsel alleges that
O’Neal confirmed to an employee (Elrod) that the statement
described in paragraph 9 is a threat of physical harm.
The subject case solely involves an issue of credibility. If
O’Neal made the threats as set forth above, a violation of Sec-
tion 8(b)(1)(A) of the Act would be established. Yale New
Haven Hospital, 309 NLRB 363, 368 (1992) (supervisor warn-
ing to employee of retaliation by others violates Section 8(a)(1)
of the Act, notwithstanding testimony that employee did not
believe that the messenger of threat would retaliate against
employee).3 Based on my review of the evidence and evalua-
tion of the witnesses’ testimony here, I do not find that O’Neal
made the statements as alleged by the General Counsel.
First, Elrod testified that O’Neal has never threatened him
nor is he aware that O’Neal has ever threatened anyone else.
Likewise, Maschke testified that neither O’Neal or Rogers ever
threatened him nor did O’Neal ever threaten him with physical
harm because he did not pay union dues.

3 In that case, the judge determined that the supervisor made the
threatening remarks alleged in the complaint.
Second, I find highly suspect, that Elrod did not immediately
inform O’Neal that he was current with his dues obligations
after allegedly being told by O’Neal on April 21 and May 1,
that he was the subject of a threat of physical harm for not pay-
ing dues to the Union.
Third, I do not credit Elrod and Maschke’s testimony that
O’Neal promised them they could listen to the tapes of his in-
terview with the state police. In this regard, O’Neal credibly
testified that no tapes were made of his May 1 interview with
the state police, which was confirmed by Trooper Victorian.
Fourth, after completing the interview with O’Neal on May
1, Victorian testified that he felt the threats were vague and he
could not find anything concrete. Therefore, he was convinced
and placed in his incident report, that the threats may be un-
founded and he would probably conclude the investigation into
this matter (G.C. Exh. 10).
In summary, I find that O’Neal did not make the statements
attributed to him by Elrod and Maschke as alleged by the Gen-
eral Counsel in paragraphs 9 and 10 of the complaint, and
therefore conclude that Respondent did not violate Section
8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. General Motors Corporation is an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent, by its agent Gary O’Neal, at the Ypsi-
lanti Powertrain plant, did not threaten employees of the Gen-
eral Motors Corporation with physical harm because they did
not pay union dues to Respondent.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed.
4 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.