General Motors Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1975

218 N.L.R.B. 472 (N.L.R.B. 1975)

472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Motors Corporation and Michael McCarthy,
Craig H. Livingston , Roland Beish. Cases 22-CA-
5831,22-CA-5875, andx22- CA-5948
June 16, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 5, 1974, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding . Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel, as well as the Charging Parties, filed cross-
exceptions and a supporting brief. The Respondent
also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions , cross-
exceptions, and briefs, and has decided to affirm the
rulings , findings,' and conclusions of the Administra-
tive Law Jude and to adopt his recommended
Order.
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 Administrative Law Judge and
hereby orders that the Respondent, General Motors
Corporation, Linden, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Hearing in
this matter began on June 19, 1974, and was concluded on
June 27, 1974, upon an amended consolidated complaint
issued by the General Counsel on May 10, 1974, and
Respondent's amended answer.
Upon the entire record in the case, including my
observation of the demeanor of witnesses and upon
consideration of excellent briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with places of
business throughout the United States, including an
automobile assembly plant in Linden , New Jersey. I find,
as the parties agree , that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
H. THE LABOR ORGANIZATION INVOLVED
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, Local 595, herein called UAW
Local 595 or the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act (a) by discharging Union Shop
Committeemen Douglas Stevens and Thomas Towell on or
about December 20, 1973, and (b) by requiring applicants
for reinstatement as a condition of reinstatement to
identify Stevens and Towell as the leaders of work
stoppages in September 1973 even though Stevens and
Towell "had not led or participated in the said work
stoppages, and Respondent knew or had reason to know
that they had not led or participated in, said work
stoppages." The complaint was amended at the hearing to
allege that Respondent further violated Section 8(a)(1) by
interrogating and threatening employees with loss of
employment in connection with their testimony in this
matter. Denying that it violated the Act' in any respects
alleged, Respondent claims that it disch .rged Stevens and
Towell for` violating no-strike provisions of an applicable
contract in that they "demonstrated positive leadership
causing a group of employees to engage in a concerted
action resulting in unauthorized work stoppages occurring
on Thursday, September 20, 1973, and Friday, September
21, 1973." Respondent further urges that the discharge
cases be dismissed or alternatively be stayed, as being
within the grievance-arbitration provisions of the afore-
mentioned collective-bargaining agreement
A. Sequence of Events
Respondent's Linden plant has some 5,000 employees,
and a no-strike provision of a National Agreement
between Respondent and the International Union (UAW)
was in effect at all material times . Stevens and Towell
worked on the second shift , from 7 p.m. until 1:30 a.m.
Stevens was the Union District Committeeman for District
# 4, an elective office, and among his duties was the
218 NLRB No. 82
GENERAL MOTORS CORPORATION 473
handling of shop grievances for the approximately 500
employees in his district.
At the conclusion of the second shift (which ran until
1:30 a.m. on Thursday, September 20, 1973),1 Plant
Superintendent Ray Moore suspended Stevens, purported-
ly for "loitering" during that shift. Clay Warnick, supervi-
sor of Plant Labor Relations, thereupon advised Stevens
that he would remain suspended pending investigation of
the matter and that he would be informed to report for a
further interview; no time was set for such interview.
The second-shift employees next reported for work at 7
p.m., Thursday evening (September 20). Stevens, being
suspended, did not report that shift, and at Stevens'
suggestion the Union meanwhile designated Towell as
alternate committeeman in Stevens' absence.
During the second shift on Thursday evening (September
20) there were rumors and match discussion among
employees concerning Stevens; some employees testified to
rumors that Stevens had been discharged and there was
even a rumor , known to Respondent at the time, about a
possible walkout in support of Stevens. Towell testified
that he too heard such rumor, but that he dismissed it as
merely a "rumor." The lunch period on the second shift is
from 9:24 until 9:48 p.m. At the beginning of the lunch
break that night, a number of employees locked up their
tools - this is ordinarily not done until the shift's end -
and many of them went to the union hall. About 105
employees did not return to the plant after the lunch break,
and Respondent closed down the plant at about 10:45 p.m.
that evening rather than at the regular 1:30 a.m. time.
The following day, Friday (September 21), Stevens was
notified by Respondent to attend an interview at 5 p.m.
that afternoon to discuss the matter of his suspension. A
special meeting at the union hall was meanwhile scheduled
for 4 p.m. before the start of the second shift that same
afternoon (September 21), and this meeting is hereinafter
discussed.
The 5 p.m. interview concerning the Stevens matter was
held that Friday afternoon. Present, in addition to Stevens,
were union representatives Mike Collins (Local Union
President or Chairman) and Rocky Warhola (Shop
Committeeman) and Respondent Labor Relations Supervi-
sors Warnick and John Walters. Warnick told Stevens that
he (Warrick) believed Stevens to have been "directly
involved" in the previous night's walkout and that he
(Warnick) would continue investigating that matter. The
parties reviewed Stevens' suspension, and Warnick finally
stated he would require more time before resolving that
matter and that he would inform Stevens of his decision
the following week.
The second-shift employees reported for work that
evening (Friday, September 21) at the regularly scheduled
time , 7 p.m. Many of these employees again went to the
union hall during the lunch period that night (9:24 p.m. -
9:48 p.m.); 63 employees did not return after lunch,
including 49 employees who had also stayed out the
previous night. This group of 49 employees who walked out
after lunch both nights became known as the "49'ers."
I All dates herein are in 1973 unless otherwise stated.
2 As the parties were advised at the hearing, Walters' testimony as to
Fisher was hearsay and was not received to establish the truth of Fisher's
That weekend Respondent sent notices to each of the
49'ers, with instructions to report for termination inter-
views the week of September 24. The interviews were held
and all of the 49'ers were terminated.
On Monday, September 24, Stevens and Collins met with
Edmond Azar, Respondent's personnel director, concern-
ing the Stevens' suspension matter. Azar informed Stevens
that he had decided to give Stevens "the benefit of the
doubt" respecting that matter; Azar thereupon rescinded
the disciplinary suspension but stated he would continue
investigating Stevens' "leadership" in the two walkouts the
preceding week and that he would get back to Stevens
upon completing the investigation. Stevens denied to Azar
that he had instigated or otherwise supported the walkouts,
and he also told Azar that he had in fact urged employees
to return to work.
Warrick and other labor relations supervisors inter-
viewed all of the 49'ers during the week of September 24,
and by November they also completed interviewing the 63
employees who had walked out only one time (the so-
called one-nighters). During these interviews, according to
Respondent's own testimony, each of these 112 individuals
was asked why he engaged in the walkout, who - if
anyone - had called the walkout, and specifically,
whether Stevens or Towell had led the walkouts. Warnick
testified that each of the 49'ers replied that no one had
asked them to walk out, that the walkout out was a
"spontaneous combustion-type affair" in support of
Committeeman Stevens, and, specifically, that neither
Stevens nor Towell was in any way responsible for the
walkout. Warnick further testified that all but 1 of the 63
"one-righters" gave the same responses during their
interviews, except for some who claimed they were ill and
had not walked out. This single "one-righter" was one
Fisher whose interview was conducted by Labor Relations
Supervisor Walters. According to Walters, Fisher told him
that Stevens had stated at the union hall on September 21
(Friday) that employees with "bad records" should return
to work and those with "good records" should stay out 2
In addition to discharging each of the 49'ers on or about
September 24 for violating the no-strike agreement,
Respondent thereafter suspended the "one-nighters" for
periods of from 3 to 30 days for the same reason.
Grievances thereupon were filed in behalf of the dis-
charged 49'ers.
Beginning on December 17, under circumstances herein-
after discussed, 36 of the 49'ers signed statements in the
presence of Respondent and union representatives to the
effect that Stevens and Towell had led and caused the
September work stoppages. (I shall refer to these state-
ments as the Statements.) The Statements state in part that
during lunch periods on September 20 and 21 Stevens and
Towel told employees that Stevens had been fired and
instructed them not to return to work in order to support
Stevens, that Stevens told employees to return to work if
they had "bad" records but to stay out if their records were
"good." Respondent thereupon reinstated many, if not all,
of those individual 49'ers who signed these Statements.
purported, statement ; it was received only as somethingpurportedly told to
Walters. Fisher did not testify as a witness to establish the truth of his
purported statement.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 20, as set forth above, Respondent
discharged Stevens and Towell purportedly for violating
the no-strike prohibition of the contract. Respondent
claims it suspected the Stevens-Towell leadership of the
walkout from the outset, and that the December 17
Statements substantiated such belief.
The parties agree that Foreman Eddy Rurade is a
supervisor within Section 2(11) of the Act. Ronald Beish
was one of the 49'ers who signed a Statement on December
17 and who was thereupon reinstated. About a week before
the hearing herein, Beish and Rurade were discussing how
many years each had remaining before retirement. The
account of this and a subsequent conversation a few days
later is based on the credible and undenied testimony of
Beish. Beish mentioned to Rurade that he, Beish, had some
25 years to go, whereupon Rurade commented that Beish
does "some foolish and funny things" and Rurade referred
to the instant Board case involving Stevens. Rurade asked,
what Beish would do if he, Beish, were subpenaed and
Rurade told Beish, "you know, it's either Doug [Stevens]
job or your job ... you know, you are going to have to he
in order to keep your job." A subpena was meanwhile
served on Beish and he gave it to Rurade on June 13.
Rurade returned the subpena to Beish some 15 minutes
later and inquired what Beish was "going to do." Rurade
walked away before Beish could respond.
B. Further Evidence
Now, to flesh out some of the material events recounted
above. Before doing so, however, a word or two about the
principal factual issue involved here; namely, whether
Stevens and Towell engaged in the conduct alleged by
Respondent as the reason for discharging them. The
parties adduced testimony of various witnesses supporting
their respective positions on this issue. Respondent's
witnesses in this connection, however, do not include any
Respondent representatives, managerial or supervisory.
There is thus no testimonial conflict on this issue between
General Counsel and Charging Party witnesses on one side
and Respondent representatives on the other. I need not
discuss preliminary questions concerning burdens of proof;
i.e., Respondent's to establish as an affirmative defense
that Stevens and Towell did in fact do what it claims they
did or the General Counsel's to establish affirmatively they
did not .3 For I am completely satisfied that the record
preponderantly, if not conclusively, establishes they did
not.
Stevens and Towell were trustworthy witnesses. Each
testified that he told no employee on September 20 or 21
that Stevens had been discharged rather than suspended,
and that neither instigated, supported, or otherwise
encouraged the walkout on those days , Stevens, on
suspension at the time, was at the union hall during the
evening of September 20 when more than a hundred
employees came to the hall during the evening lunch break.
Employees milled about on that occasion, some having
refreshments at a downstairs bar, some watching television,
with much noise and confusion. Stevens told employees
that he was suspended and not fired and he urged - even
shouted at them - that they should return to work.
As some of the employees were leaving the union hall
that evening, Stevens heard some of them "chanting" that
they were going to set up a picket line the next day. Stevens
testified that he "felt that that would be disastrous," and to
ward off such action he announced that a meeting would
be held at 4 p.m. the following day (Friday, September 21)
- it is recalled that the second shift began at 7 p.m. - and
that International representatives would be present. Ste-
vens went to the union hall the next day and the special
union meeting took place at 4 p.m. that Friday afternoon.
International Representatives Smith and Volason were
present, as were Local Union President Mike Collins and
Vice President Earl Stuttsman and all of the day-shift
unidn representatives. Smith, Volason, Collins, Stuttsman,
and Stevens mounted a platform and Smith opened the
meeting. Smith instructed the men that the contract
required that they go to work, and he ordered them to do
so. The assembled employees "shouted and screamed,"
whereupon Smith and Collins attempted to speak. Employ-
ees continued to shout for Stevens, and Stevens then spoke.
Confirming Smith's remarks, Stevens also instructed the
employees that they must go back to work. Stevens further
explained that he was only suspended and that an
"interview" with Respondent was scheduled for 5 p.m.
concerning his suspension. He also stated that Respondent
could take him back and discharge all of those who refused
to work. As the meeting was breaking up, someone from
the audience leaped upon the stage and shouted that "we'll
bring the whole plant out" if Stevens wasn't back on the
job by lunchtime (9:24 p.m.).
The 5 o'clock "suspension" interview was held, as
already indicated, with Warnick stating he had until
Monday before deciding what to do respecting that matter.
After this interview, Stevens returned to the union hall
where his car was parked. He went into the bar and chatted
with some day-shift employees; an international represent-
ative and Local Trustee Mel Perez also were present.
Second-shift employees came into the union hall during
the Friday night lunch period. Perez and Stevens urged the
employees to return to work, and Stevens told them they
wouldn't get away with it and would be fired unless they
did return. And, pointing to some men whom he had
previously represented in grievance matters, Stevens stated
that employees with bad records would certainly be the
first to go.
Stevens' credible account is fully corroborated in
material respects by the credible 'testimony of Ronald
Beish, Michael McCarthy, Charles James, Stanley Wood-
ruff, Robert Van 'Kline, Philip Hackenberg, Robert Vail,
David Slonaker, Linda Carpenter, Enoch Hayes, Richard
Wyckoff, Milton O'Loughlin, Alan ' Tomlinson, Meredith
Evans, Wayne Hackerberg, and Edmund Chivlin.
Towell, it is recalled, was designated union committeman
to replace Stevens during the latter's suspension, and it is
not claimed that he actually joined the work stoppages on
September 20 and 21. Respondent asserts, rather, as it does
respecting Stevens, that Towell provoked or encouraged
and did not discourage the stoppages. Towell credibly
3 Cf. Rubin Bros Footwear, Inc., 99 NLRB 610, 611 (1952), cited inN.L.R.B
. v. Burnup & Sims Inc., 379 U.S. 21,23 (1964).
GENERAL MOTORS CORPORATION 475
testified, with trustworthy corroboration in various materi-
al respects ,4 that he did not tell employees that Stevens had
been fired, that he was not at the union hall during lunch
periods on September 20 or 2I, that he went to the union
hall at the shift's premature end at 10:45 Thursday evening
(September. 20) on which occasion he told employees that
Stevens would win his suspension case and it therefore
made no sense to walk out in such connection, that he
attended the special union meeting at 4 p.m. on Friday
afternoon following which he sought to lead employees
into the plant, that he thereupon did report for the regular
7 P.M. shift Friday evening, that International Representa-
tive Smith instructed him early that evening to advise each
man in District 4 that a repeated walkout would violate the
contract and subject violators to discipline and that he
thereupon did go down the line and advise employees in
accordance with Smith's instructions, and that he further
advised employees to a like effect as they were leaving the
plant at the lunch period that night.
In crediting the testimony set forth above, I have, of
course, considered the testimony of all other witnesses,
including John Kocsis, Vincent Sciancalepore, Willie
Walker, James Manley, Jr., Richard Hassmiller, Roy
Murray, and Charlie McCotter as well as the aforemen-
tioned Statements which are next discussed.5
C. The "Statements"
It is recalled that Respondent interviewed and dis-
charged the 49'ers on or about September 24 and that each
49'er advised Respondent on that occasion that neither
Stevens nor Towell was in any way responsible for
instigating , calling, or otherwise supporting the walkouts of
September 20 and 21. Ronald Beish and Michael McCar-
thy were among the 49'ers discharged and interviewed as
stated above.
Collins is chairman of the Local Union's shop commit-
tee, Stuttsman is the Local vice president, and one
Summers is a Local officer. Beish and McCarthy were
wholly credible witnesses and gave the following uncon-
tradicted testimony: Beish had many conversations with
Summers during the period from the 49'ers' discharges in
September until December concerning Union efforts to
obtain reinstatement for the 49'ers. Summers thus told
Beish several times that he, Summers, didn't "understand"
the situation ; namely, the 49'ers had walked out in support
of Stevens and Stevens was now working while the 49'ers
were "out on the street." Summers told Beish he (Summers)
could arrange a meeting ; between Beish and Azar
(Respondent's personnel, director) and Summers suggested
that Beish "turn Doug [Stevens] in." Beish replied he
would not do so because "that ain't the truth." In
conversations in November between McCarthy, Beish,
Summers, and Collins, Collins said that the Union was
doing; what it could in behalf of the 49'ers but that "things
don't look so good." Mentioning that the 49'ers were "out
the door" while Stevens was working, Collins said he could
arrange a meeting with Azar and that Stevens was "a
communist and pinky and everything." During either this
4 Ronald Beish, Michael McCarthy, Charles James, Robert Van Kline,
Robert Vail, David Slonaker, Linda Carpenter, Richard Wyckoff, and Alan
Tomlinson.
or a later conversation with Beish, and also attended by
Stottsman, Collins said that when the Union did get the
49'ers reinstated "we are going to come out with a leaflet
and show what a . . . [expletive deleted] Communist
Stevens really is." At the union hall on or about December
14, Collins told Beish that Plant Manager Michaels had
said that the 49'ers would be returned to work if they "give
the leaders of the walkout." Collins thereupon called over
International Representative Smith who confirmed to
Beish what Collins had said concerning Michaels' purport-
ed proposal. Later that day in the presence of Stuttsman
and Collins, Union Pension Chairman Harry McManus
suggested to Beish that Beish arrange a meeting between
Collins and some of the 49'ers.
At Beish's behest, a group of about 15 of the 49'ers
thereupon met with Collins on December 17 at the union
hall and Collins informed the group as to Michaels'
purported proposal; Collins also told them that grievances
filed in behalf of the 49'ers were in "bad shape" because of
the seriousness of the walkout and that there was little
chance of success should the matter reach an umpire. This
group of 49'ers then discussed the situation and decided to
name Stevens and Towell as the leaders of the walkout.
With McCarthy as their spokesman the group of 49'ers
went from Collins' office to the plant where McCarthy met
with Labor Relations Supervisor Clay Warnick. On that
day and succeeding days, some 35 of the 49'ers individual-
ly signed the aforedescribed Statement in the presence of
management and union representatives to the effect that
Stevens and Towell were the leaders of the walkout.
Approximately 11 of the 49'ers testified in this proceeding,
and they testified in effect that the information they gave
Respondent concerning Stevens and Towell in their
September discharge interviews was truthful and that the
Statements signed by them on and after December 17
falsely attributed walkout leadership to Stevens and
Towell. When asked why the men decided to name Stevens
and Towel as the leaders, McCarthy explained that the
men believed that both Respondent and the Union were
"out to get", Stevens. and Towell and that the 49'ers
considered themselves "dead" as far as reinstatement was
concerned unless they did name Stevens and Towell.
Without repeating all of the above, or detailing still
further corroborating facts and circumstances, I conclude
that the record preponderantly, - indeed inescapably -
establishes that neither Stevens nor Towell instigated,
encouraged, supported, or' participated in the September
20-21 walkouts. I also conclude, as the complaint alleges,
that Respondent discharged Stevens and Towell for such
purported activity.
A further word, however, concerning the events preced-
ing execution of the December Statements by 49'ers.
Warnick's and Azar's testimony is to the effect that
Respondent never informed the Union or any affected
employees that it would reinstate the 49'ers if the latter
would identify leaders of the walkout. Rather, according to
Respondent, it agreed to meet with the 49'ers at the -urging
of the Union but only to listen and evaluate what they had
5 My credibility resolutions are based upon consideration of each
witness' testimony and my demeanor observations of each witness.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to say. So far as it was concerned, according to Respon-
dent, there were no commitments or understandings of any
sort that Respondent would reinstate . the 49'ers in
exchange for Statements identifying Stevens or Towell.
Although, as stated above, union officials and other
representatives did tell Beish and other 49'ers of such quid
pro quo, the General Counsel did not claim at the hearing
that these union representatives were agents of Respon-
dent. The testimony on this matter was therefore received
for the limited purpose of showing a sequence of events
and expressed attitudes of union representatives but as
having no probative value in binding Respondent as to
whom the testimony in question was clearly hearsay.
Warnick testified that Respondent suspected from the
outset that Stevens and Towell were responsible for the
walkouts even though all but 1 of the 112 affected
employees originally informed Respondent in the termina-
tion and other disciplinary interviews that Stevens and
Towell were not at all involved in calling or supporting the
walkouts . Warnick thus testified that management suspect-
ed Steven's involvement because of the latter's own
disciplinary record and because it believed the walkout
could have been averted by Stevens and Towell. Warnick
claimed in this connection that a committeeman and his
alternate are the two most influential individuals in a given
district and that management was of the belief that the
employees involved would therefore not have walked out
without Stevens' and Towell's approval and would not
have remained out if Stevens and Towell had instructed
them to return. Warnick accordingly testified in effect that
when some of the 49'ers later changed their stories and
implicated Stevens and Towell in oral and written
statements on and after December 17, Respondent
believed that these later Statements truthfully supported
Respondent's own long held views concerning Stevens' and
Towell's role in the walkouts.
grievances were finally determined under the grievance
machinery and that it "would not enhance the expeditious
and peaceful resolution of disputes to require that the
Union proceed to arbitration with every grievance,
regardless of merit ...: '
Whatever cogency there may be in Respondent's
argument in other situations short of arbitration,s the
present case is scarcely an appropriate vehicle for deferral
under the circumstances present here. The record does
show, as Respondent, asserts, that the Local Union did
represent Towell and Stevens in the processing of their
grievances and the record further shows that the Interna-
tional Union did participate in determining not to submit
the matter to the umpire for lack of merit. However, the
record also establishes the strong hostility of Local
Chairman Mike Collins toward Stevens as revealed above
in Collins' undenied remarks about Stevens in the presence
of Local Vice President Stuttsman, among others.
Further discussion is unnecessary to warrant the conclu-
sion, which I reach, that considerations of elemental
fairness bar application of the Board's Collyer-Spielberg
deferral policy to the present case . Kansas Meat Packers,
198 NLRB 543 (1972) ("In our opinion, it would not be
consonant with statutory policy to- defer to arbitration in
this instance as the interests of the Charging Parties - the
alleged discriminatees - are in apparent conflict with the
interests of the Union and certain of its officials, as well as
with the interests of Respondent.').
Respondent further claims that whatever the record
shows as to the attitude of union officials respecting
Stevens , no such Local Union animosity appears toward
Towell. Towell was appointed alternate committeeman at
Stevens' suggestion, and it is unreasonable to believe or
even speculate in the context of this case that union
officers' hostility to Stevens would not or did not carry
over to Towell.
D. Respondent's Contention That the Complaint
Should Be Dismissed as to the Stevens-Towell
Discharges Without Reaching the Merits of Such
Allegation
The operative contract contains a four-step grievance
procedure, the fourth step providing for an umpire's
determination. Both Stevens and Towell did invoke this
grievance machinery respecting their discharges and their
grievances had reached the third step, when, about May
1974, the grievants requested that their grievances be
withdrawn from the procedure. Meanwhile, on May 20,
1974, Local Union Chairman Mike Collins advised Stevens
and Towell that the Local and the International Union had
investigated their discharges and determined that their
grievances were without merit and should not be submitted
to the umpire under the contract.
Respondent contends that under the Collyer-6 Spielberg7
line of cases, the Board should not reach the merits of
Stevens' and Towell's discharges even though their
grievances were adversely disposed of before reaching the
umpire. Respondent thus asserts that the merits of the
6 Collyer Insulated Wire, 192 NLRB 837 (1971).
4 Spielberg Mfg. Co., 112 NLRB 1080 (1955).
E. Burnup & Sims
During an organizational campaign, an employer
(Burnup & Sims, Inc.), discharged two employees whom it
mistakenly believed to have made dynamiting threats
against it. Agreeing with the Board that these discharges
were unlawful, the Supreme Court declared as follows in
N.LRB. v. Burnup & Sims, Inc., 379 U.S. 21,22:
In sum, Section 8(a)(l) is violated if it is shown that the
discharged employee was at the time engaged in a
protected activity, that the employer knew it was such,
that the basis of the discharge was an alleged act of
misconduct in the course of that activity, and that the
employee was not, in fact, guilty of that misconduct.
The Court added as a caveat that "Had the alleged
dynamiting threats been wholly dissociated-from Section 7
activities quite different considerations might apply" (379
U.S. at 24).
Even though Respondent discharged Stevens and Towell
because it mistakenly believed they had led or encouraged
the walkouts, Respondent asserts that the discharges are
8 See International Harvester Company, 199 NLRB 1009 (1972) (ALJD,
fa. 3).
GENERAL MOTORS CORPORATION 477
not violative of the Act unless it also be established that
Stevens and Towell were in fact engaging in protected
activity at the time and that Respondent was aware of such
protected activity. Respondent cites in this connection
Loggins Meat Co., 206 NLRB 303 (1973), involving an
employee named Sanders. Employees in Loggins Meat
engaged in a slowdown and the employer suspended
Sanders because of a mistaken belief that Sanders had
participated in that unprotected activity. Citing Burnup &
Sims, supra, a divided panel of the Board dismissed the
complaint because Sanders "was not engaged in a
protected activity concurrently with Respondent's mistak-
en belief of misconduct." The panel majority held that
"Under Burnup & Sims there must coexist a protected
activiity and an employer's mistaken belief that the
discharged employee had engaged in misconduct in the
course of that activity."
As an original matter of interpretation, and with all
respect for the Board, I would not have thought that the
Court in Burnup & Sims necessarily addressed the question
that later arose in the Loggins Meat case. Both cases
involved mistaken attribution of misconduct in a context
of concerted activities; in Burnup & Sims the concerted
activity was protected and in Loggins Meat the concerted
activity, was unprotected. Both cases thus differ from a
situation where an employer mistakenly believes an
employee to have engaged in misconduct wholly dissociat-
ed from concerted activities, protected or unprotected. In
condonation cases , for example, where employees violate a
valid no-strike clause, an employer may not discharge
employees for such reason once he has condoned their
unprotected concerted activity - and this is so even
though no protected activity is involved. M. Eskin & Sorb
135 NLRB 666, 670 (1962), enfd. in relevant respects 312
F.2d 108, 113 (C.A. 2, 1963). I don't know how I would
have decided Loggins Meat, and it is of no consequence,
for the Board panel did decide the issue and such holding
is binding and respected here. In accordance with Loggins
Meat, we thus reach the question whether a protected
activity coexisted with Respondent's mistaken belief that
Stevens and Towell had engaged in misconduct in the
course of that protected activity. I find there was such
coexistence.
Among a committeeman's functions is the processing of
grievances in behalf of unit employees. Although the
procedures for grievance handling are regularized in the
Union's contract with Respondent, an employer's obliga-
tion to deal with a statutory representative concerning
grievances arises out of the Act (Miami Copper Company,
92 NLRB 322 (1950), and authorities cited therein; cf.
Hugh H. Wilson Corporation v. N.L.R.B., 414 F.2d 1345,
1347-50 (C.A. 3, 1969)); and an employer would violate
the Act should it discharge a shop steward or other union
representative for, filing grievances in behalf of employees.
(J. C Boespflug Construction Co., 113 NLRB 330 (1955);
Hyster Company, 195 NLRB 84 (1972)). Shop Stewards or
committeemen are employees' immediate contact with
their statutory representative, and for many purposes the
shop steward or committeeman is the union vis-a-vis the
employees as' well as the employer, both within or without
a collective-bargaining agreement. The committeeman is
the statutory bargaining representative on front-line labor
relations, and as such his- very office embodies the essence
of protected concerted activities. Cf. Crown Central
Petroleum Corp. v. N.L.R.B., 430 F.2d 724, 729 (C.A. 5,
1970).
Respondent claims it fired Stevens and Towell because it
believed they "actively led or participated in the unauthor-
ized work stoppage of September 20 and 21." I have found
that Respondent was mistaken in so believing. Respon-
dent's claimed reason for suspecting Stevens' and Towell's
role in the walkout is found in Warnick's aforementioned
testimony and set forth in Respondent's brief: "Inasmuch
as the committeeman and his alternate are the two most
influential people in a given district, management believed
that if, in fact, Stevens and Towell had really told
employees to return to work, a walkout would have been
averted."
The committeeman epitomizes the concerted activity of
employees in organizing a union and regularizing their
labor relations with their employer through a collective-
bargaining agreement, the contract being a statutory
desideratum of protected concerted activities under the
Act. To repeat, in my judgment the committeeman office
or function is itself protected concerted activity. I accord-
ingly conclude that in occupying the office of committee-
man Stevens and Towell were engaged in a protected
concerted activity known to Respondent and that Respon-
dent violated Section 8(a)(1) of the Act by discharging
them because of a mistaken belief that they had engaged in
unprotected activity in the performance of their office.
Burnup & Sims, Inc., supra; Loggins Meat Co., supra, cf.
Crown Central Petroleum v. N.L.R.B., 430 F.2d 724, 727-
729 (C.A. 5, 1970).
Moreover, and apart from Burnup & Sims and Loggins
Meat considerations, I find that Respondent's discharge of
Stevens and Towell also violated Section 8(aX3) of the Act.
Simply stated, Respondent discharged them because they
were union committeemen. Respondent's claim respecting
their leadership in the walkouts is based on the fact that
they were committeemen. The union office of committee-
man is a function of union membership, and employees
would be discouraged from holding or performing such
office if to do so meant they could lose or risk their
employment status merely because Respondent might
erroneously believe they had wrongfully performed in such
union capacity. Respondent, by discharging Stevens and
Towell, thereby discouraged union membership or an
aspect of such membership and accordingly violated
Section 8(a)(3) of the Act.
F. Inducement of Reinstatement in Exchange for
Allegedly False Statements
Without discussing the detailed circumstances under
which 37 of the 49'ers signed Statements, the record does
establish that Respondent must have known that at least
some of the Statements were not true in some respects.
Union officers did advise employees, in effect, that they
would be reinstated if they gave or made these statements
to Respondent; however, the union officers were not
shown to be Respondent's agents or otherwise authorized
to advise the 49'ers of such purported reinstatement
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposal. The difficulty or a difficulty with this allegation
of the complaint is that Respondent did suspect Stevens
and Towell to have been involved in the walkouts and that
it was the Union (or some union officers), so far as the
record indicates, that initiated the December 17 interviews
and Statements. And as far as Respondent is concerned,
the Statements were given voluntarily in a situation where
Respondent was under no statutory compulsion to rein-
state the unprotected strikers.
I shall recommend dismissing this allegation.
G. Interrogation and Threats
I conclude upon credible and uncontradicted testimony
set forth above, that Foreman Rurade unlawfully interro-
gated Beisch and threatened him with loss of employment
in regard to his testimony in this case.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Douglas Stevens and Thomas Towell.
4. Respondent further violated Section 8(a)(1) of the
Act by coercively interrogating employees concerning
protected activities, including their giving of testimony in
National Labor Relations Board proceedings, and by
threatening them with reprisal for engaging in such
activities.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(l) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action, including reinstating
and making whole Stevens and Towell, in order to
effectuate the policies of the Act. Such remedy is
independently appropriate under Section 8(a)(l) and (3),
respectively. All backpay computations shall; be in accord-
ance with F W. Woolworth Co., 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDERS
The Respondent, General Motors Corporation, Linden,
New Jersey, its officers,-agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees for being and acting as union committeemen.
(b) Interfering with, restraining, or coercing employees in
the exercise of their protected rights as to union committee-
men.
(c) Coercively interrogating employees concerning pro-
tected activities and threatening them with reprisal for
engaging in such activities.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Offer to Douglas Stevens and Thomas Towell
reinstatement to their former jobs or, if these jobs no
longer exist, to substantially equivalent positions, without
-prejudice to their seniority or other rights and privileges,
and make them whole as set forth in the "The Remedy"
section, above, for any loss of earnings suffered as a result
of the discrimination against them.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(c) Post at its plant in Linden, New Jersey, copies of the
attached notice marked "Appendix." 10 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE wrLL reinstate Douglas Stevens and Thomas
Towell and make them whole for earnings lost since
their discharges.
WE WILL NOT interrogate employees concerning
protected activities including their giving testimony in
NLRB proceedings.
WE WILL NOT threaten employees with reprisal for
engaging in protected activities, including their giving
testimony in Labor Board proceedings.
GENERAL MOTORS CORPORATION 479
WE WILL NOT discharge or otherwise discriminate WE WILL NOT in any like or related manner interfere
against employees for occupying the position of union with, restrain, or coerce employees in the exercise of
committeemen . their rights under the Act.
GENERAL Morons
CORPORATION