General Motors Corp.

National Labor Relations Board - Board Decisions

Mar 2, 1994

313 N.L.R.B. 998 (N.L.R.B. 1994)

998
313 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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.
We correct the citation to General Motors Corp., 297 NLRB 31,
45 at fn. 13 (1989), and note that the issue of the lawfulness of the
union’s removal of appointed officials for their involvement in inter-
nal union politics was not before the Board on exceptions in that
case.
2 In adopting the judge’s finding that the Respondent Union did
not violate the Act by causing the Employer to remove employees
Kubelsky and Hinman from their jobs in the Joint Training Center,
we agree that Shenango Inc., 237 NLRB 1355 (1978), privileged the
Union’s conduct because the Union had the right to demand loyalty
from persons whom it had designated to serve in these appointive
positions. We stress that the present case is distinguishable from the
Board’s decision in Roofing, Metal & Heating Associates, 304
NLRB 155 (1991), in that the union there sought the discharge of
an employee who did not work as a union appointee; rather, the em-
ployee was employed by the apprenticeship training fund, a third-
party entity. In contrast, the Union in the instant case caused the
Employer to remove Kubelsky and Hinman from union-appointed
positions in the Joint Training Center and to reassign them to posi-
tions in the bargaining unit. Kubelsky and Hinman have always re-
mained employees of the Employer. Only their job assignments have
changed.
Member Devaney would further distinguish Roofing, Metal &
Heating Associates, supra, because in that case, the employee exer-
cised his right to become a candidate for union office, which right,
in any event, outweighed any interest, under the circumstances of
that case, the union had in securing his loyalty. Id. at fn. 2, par. 2.
1 The Employer or Company.
2 The Union.
3 General Counsel’s motion to correct the record by including a
copy of the Company’s answer is denied. The record is already com-
plete. The Company’s answer was received as G.C. Exh. 1(t).
4 Jurisdiction and the status of the Union as a labor organization
are admitted.
Allison Transmission, Division of General Motors
Corporation and Jane E. Kubelsky
Local 933, International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America (UAW) and Jane E. Kubelsky
and Dennis Hinman. Cases 25–CA–21516, 25–
CB–7023, and 25–CB–7080
March 3, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On June 9, 1993, Administrative Law Judge William
F. Jacobs issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent Employer and the Respondent Union
each filed answering briefs.
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,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Walter Steele, Esq., for the General Counsel.
Mary Beth Sax, Esq., of Detroit, Michigan, for Respondent
Company.
Barry A. Macey, Esq. (Macey, Macey & Swanson), of Indi-
anapolis, Indiana, for Respondent Union.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. These
consolidated cases were tried before me on December 3, 4,
and 17, 1992, in Indianapolis, Indiana. Jane E. Kubelsky
filed charges, on September 11, 1991, against Allison Trans-
mission, Division of General Motors Corporation1 (Case 25–
CA–21516) and Local 933, International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW)2 (Case 25–CB–7023). Complaint issued
against the Union on October 31, 1991, alleging that the
Union, on September 9, 1991, requested the Company to re-
move employee Kubelsky from her position of scheduler in
the ATD/UAW Joint Training Center and that on the same
date she was removed in accordance with the Union’s re-
quest because she had engaged in protected concerted activi-
ties and in intraunion activities thus causing the Employer to
discriminate against its employee in violation of Section
8(a)(3), thereby violating Section 8(b)(2) of the Act. An
order consolidating cases, complaint and notice of hearing
issued on November 21, 1991, alleging that the Employer re-
moved Kubelsky as requested by the Union for discrimina-
tory reasons and imposed onerous and rigorous terms and
conditions of employment on her by assigning her to a job
assignment more arduous and less agreeable because
Kubelsky had refrained from supporting the Union and in
order to encourage its employees to support or assist the
Union in violation of Section 8(a)(1) and (3).
Dennis Hinman filed a charge, on December 20, 1991,
against the Union (Case 25–CB–7080). An order consolidat-
ing cases, complaint and notice of hearing issued February
6, 1992, alleging violations on the part of the Union, iden-
tical to those contained in Case 25–CB–7023.
Respondents filed answers3 to the complaints denying the
commission of any unfair labor practices.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and to present evidence
and argument. On the entire record, my observation of the
demeanor of the witnesses, and after giving due consider-
ation to the briefs, I make the following
FINDINGS OF FACT4
Background
The Employer, a Delaware corporation with offices and a
place of business in Indianapolis, is engaged in the manufac-
ture and nonretail sale and distribution of transmissions and
999GENERAL MOTORS CORP.
related products to military and commercial customers. It
employs over 3400 employees, all of whom are represented
by the Union involved.
In addition to negotiating collective-bargaining agreements
and conducting labor relations concerning wages, hours, and
conditions of employment, the Employer and the Union have
engaged, since 1973, in a number of joint activities provided
for in the section of the national agreement between General
Motors Corporation and the UAW entitled Memorandum of
Understanding, Joint Activities. The object of these joint ac-
tivities is to improve the Company’s competitiveness by hav-
ing the Union and the Company operate certain programs, in-
cluding training programs, together to make certain that em-
ployees are continuously updating, expanding, and moderniz-
ing their skills to increase production and enhance quality of
product.
At the national level there is a committee consisting of
very high officials of the Company and Union who negotiate
contracts which include provisions providing for the adminis-
tration of joint activities at the local level. At the local level
there is a local joint activity steering committee. On this
committee are two local high-ranking officials from the
Company and Union that guide the various joint activities in
the plant operations. On the local joint activities committee
are the divisional personnel director and the operations direc-
tor representing management and the local union president
and chairman of the bargaining committee representing the
Union. All the various individual joint activities operating at
the Company are responsible to the joint activities commit-
tee.
The joint activities committee management members are
appointed by higher management. The union members of the
committee are elected by the union members in the unit.
Management personnel assigned to joint activities are se-
lected by the manager of labor relations. Rank-and-file unit
employees assigned to joint activities are appointed by the
local chairman of the bargaining committee or, in some
cases, by the International. Management is usually notified of
the Union’s appointments at joint activities committee meet-
ings held periodically. Similarly, the manager of labor rela-
tions is notified by the chairman as to who had won elected
positions. The manager of labor relations keeps an updated
list of union appointees and elected officials. The number of
union appointees to joint activities positions, at the time of
the hearing, was approximately 60.
When a rank-and-file employee is appointed to a joint ac-
tivities position by the chairman or by the International
through the chairman’s recommendation, he keeps the job
classification he held at the time of his appointment. Simi-
larly, his pay rate also remains the same.
Management may not remove an employee appointed to a
joint activity position by the Union’s bargaining committee
chairman nor, of course, can the chairman remove an ap-
pointee of management. If, for instance, an employee who
has been appointed to a joint activity position by the chair-
man, has a poor attendance record, the personnel manager
will so advise the chairman and it is up to the chairman to
take appropriate action. According to the credited testimony
of the personnel manager, if the Union decides to remove an
employee it has appointed to a joint activity position, the
Company has no power to prevent it.
One of the several joint activities in which the Company
and the Union have participated jointly, over the years, has
been the Joint Training Center. Within the center are various
activities such as adult basic education, education and train-
ing support activities, and skilled trades. Assignments or
transfers of rank-and-file employees to, and out of, jobs with-
in the Joint Training Center generally follow the transfer
agreement contained in the contract which applies to all
transfers in general. However, the transfer agreement does
not cover all possible situations, in which case a negotiated
transfer may take place. For example, if a specific transfer
would ordinarily follow from the contract but the employee
involved had a history of being unable to get along with a
particular employee or supervisor, the transfer would not fol-
low the usual course but rather, the Company and Union
would negotiate a different transfer in order to avoid the
foreseeable problem.
In the ordinary course of events, if an employee were dis-
satisfied with his job, he would file a transfer application to
change his classification, department, or shift to a different
and specific classification, department, or shift. An employee
can have on file as many as five applications at one time.
Requests for transfer are granted in accordance with senior-
ity. Once the request is granted, however, the employee may
not file another application for at least 1 year.
The applications for transfers to specific positions are kept
on file in personnel. At the same time, the various depart-
ments keep track of requisitions or job openings as they
occur due to retirements, quits, or changes in operations. As
job openings occur, they are filled, where possible, from the
list of employees who have filed applications for those jobs.
Unless an employee has filed an application, he will not be
considered for the job which has become available. At the
Joint Training Center, the same procedure is followed as
throughout the rest of the Company. If an employee is re-
moved from his appointed job at the center, he will be trans-
ferred to any open job for which he has filed an application
if there is an opening and if he is the senior employee apply-
ing. If there is no opening or if he has no application on file,
he will be assigned to any job in his classification, as re-
quired by contract, at the discretion of the Employer. He has
no right to be returned to his previous job nor to his depart-
ment or shift, just to his classification.
As noted, under the language of the transfer agreement, an
open requisition is filled by application in accordance with
seniority. When the opening is filled, a secondary opening
results when the applicant leaves his job open in order to
take the job for which he applied. The transfer agreement
does not cover this secondary requisition and the Employer
is free to fill the secondary requisition any way it sees fit.
The Instant Case
Jane Kubelsky, one of the two alleged discriminatees in
the instant proceeding, was hired by the Company in June
1977 as a stock chaser. The job entailed mostly working with
computers with no manual labor. Though her job classifica-
tion was changed sometime thereafter to material services
trucker (MST), her duties remained similar in nature.
In 1983, Bob Boone was elected chairman of the shop
committee and thereafter appointed Dave Crawley as coordi-
nator of the newly implemented training program. Boone and
Crawley subsequently approached Kubelsky to also become
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a training coordinator. Although she initially turned the offer
down, she later accepted when management also asked her
to take the job. This was in 1984.
During her first few months as training coordinator,
Kubelsky worked closely with management to decide pre-
cisely what subject matters were to be taught and in what se-
quence. Management supplied Kubelsky with the names of
people with expertise in the areas that were going to be
taught. Kubelsky later sat down with members of manage-
ment and with these people to develop course content, mate-
rial, books, and tests. She did not, however, play any role
in deciding who was to take the courses. These were open
to everyone but were of particular value to employees trans-
ferring to new jobs.
At the time of her initial appointment, Boone advised
Kubelsky that she would have nothing to do with the con-
tract, bargaining, or the handling of grievances. Her job was
limited to setting up courses and training employees in sub-
jects relating to material handling. She was one of a handful
of trainers. Boone remained chairman and Crawley remained
in charge of the Union’s side of the training center. Kubelsky
performed her duties as here described through 1986.
During the period while Boone was chairman he urged
those involved in the training program to make themselves
available to the shop floor people to explain what was hap-
pening during bargaining. Kubelsky was to remain knowl-
edgeable so as to be able to answer any questions posed by
the employees. She became a supporter of Boone and a close
friend. She spent 2 to 4 hours per week out on the floor
making contacts on his behalf. When he ran for chairman
again, she handbilled for him.
In April 1986, Kubelsky was requested by Crawley and
his management counterpart to begin keeping hourly records
of training. She was told to track the type of courses taken
by the various employees, the hours spent taking the courses,
and the cost to the Company. In addition to the newly as-
signed duties, Kubelsky was required to continue to do the
work she had been performing since she was initially as-
signed to the training center.
In January 1987, the Company closed down the training
center. Kubelsky was sent back to work in her old job classi-
fication, albeit not in her old department. The center re-
mained closed for about 6 months. When it opened again,
Boone began to reassign personnel to the center two and
three at a time, Kubelsky among them. She then undertook
the same responsibilities she had had before.
Following the reinstitution of the center, it grew larger.
Many more employees began to participate. Kubelsky’s rec-
ordkeeping duties expanded while her work on creating
courses abated.
Sometime in 1988, one Don Winchester was appointed co-
ordinator at the training center by the Union. Kubelsky found
Winchester to be abusive and in response quit her job at the
center and went back to work with her tools on the shop
floor in her old classification and in the department she had
last worked. Within 2 months she was transferred, however,
to another department. She was asked repeatedly, by several
people to return to the center, most often by Boone, who was
still shop chairman at the time. She finally did so, after about
60 days.
Sometime in 1988, Crawley and his management counter-
part requested Kubelsky to undertake the scheduling for the
entire center including for the salaried participants. There-
after, she became responsible for recordkeeping for all indi-
viduals involved in training at the center, both hourly and
salaried. She tracked what instructors were teaching, what
courses in what classrooms and when, and who were attend-
ing classes. Although she did not have authority to determine
who the teachers would be, she would decide that a certain
number of day-shift classes in a particular subject would be
necessary, then permit the trainers to choose among them-
selves what slot each would pick. When they made these de-
cisions, Kubelsky would put this information into the com-
puter.
To determine what courses would be necessary, Kubelsky
would, on the first and third Monday of each month, call
personnel and obtain the list of employees who were to be
transferred that day. She would then schedule the transferees
for a needs assessment, a test administered by the trainers
who would then evaluate the results of the test. Depending
on the results of the evaluations, the transferees would be as-
signed courses in the subjects in which they were weakest.
The trainers would then supply Kubelsky with a list of trans-
ferees with the courses each would require and the schedul-
ing would follow.
In addition to the training of transferees, courses were also
offered on a personal interest basis for employees who
wished to upgrade the skills they possessed in the jobs they
already held. Computer courses were made available as well.
With the huge increase in her recordkeeping duties,
Kubelsky was forced to advise her superiors that she could
no longer participate in the actual training or development of
training. She recommended that another person be gotten to
take over some of the duties which she was being forced to
relinquish. They agreed. Subsequently, David Crawley ap-
pointed Dennis Hinman, the other alleged discriminatee in
the instant case, to be Kubelsky’s assistant. The chairman, of
course, had to approve the appointment.
As noted earlier, individuals appointed to joint activities
from the union side were appointed by either the Inter-
national or the local chairman. The International maintained
a strict policy whereby their appointees were forbidden from
getting involved in local union politics. The rationale behind
the prohibition was to maintain the integrity of the joint pro-
grams by preserving confidentiality. It was understood that
appointees to international benefits representatives jobs and
to joint activities positions would, by virtue of their posi-
tions, obtain access to confidential information which could
be damaging if released to individuals running for local of-
fice or to factions supporting one group over another. Loy-
alty of appointees to one political faction over another could
result, following a change in local administration, in the
wholesale replacement of appointees and the consequential
necessity of training new appointees in the duties of their po-
sitions due to lack of experience. Historically, where an
internationally appointed representative has ignored the pro-
hibition, he has been removed.
In 1989, the shop chairman, Bob Boone, left that position
to take a job with the International Union. Terry Yount was
initially appointed to take Boone’s place, then later was
elected chairman. According to Ron Garrett, joint activities
representative under Boone, when Boone was chairman, the
trainers were involved in local union politics. Yount testified
that under Boone’s chairmanship, appointees had to go out
1001GENERAL MOTORS CORP.
5 Although Yount emphasized that he was against all politicking,
not just campaigning against himself and his candidates, Kubelsky
credibly testified that she helped Yount with his campaign for chair-
man.
6 Kubelsky denied that this conversation occurred. I credit Garrett. 7 Hereinafter, all dates are in 1991 unless noted otherwise.
on the floor 4 to 8 hours per week, and do nothing but
‘‘campaign and politick for him.’’ He felt that this was a
misuse of joint training funds and determined to change the
policy.
According to Garrett, shortly after Yount was appointed
chairman, he asked Garrett to get all the appointed people to-
gether. Garrett did so. These were joined by the members of
the shop committee. At this meeting, Yount announced that
the best way the appointees could serve the membership was
to perform their assigned duties and to leave politics to the
politicians. He stated that campaigning was absolutely forbid-
den and that all trainers would henceforth follow the guide-
lines of the International Union—no involvement in politics.5
Following this initial meeting, Yount held a second meeting
with the trainers and other appointees at which he reiterated
the statements he had made during the first meeting. In addi-
tion, Yount instructed Garrett to remind the appointees of the
prohibition against politicking during his weekly meetings
with them in the future.
Immediately after Yount’s first meeting with the trainers
and other appointees, Kubelsky told Garrett that she did not
like Yount’s prohibition on politicking. She said she wanted
to be involved in politics and did not want to miss out on
all the fun. Garrett cautioned, ‘‘You heard the chairman. You
know what the repercussions will be. So if you get involved,
you’re going to be in deep water. If you get caught, you’re
history.’’6
In accordance with Yount’s instructions, Garrett, on two or
three occasions, during his periodic meetings with the train-
ers, reminded them of the prohibition against politicking. He
instructed them to walk away, if someone tried to talk poli-
tics. Under the rules, an appointee may not run for elected
office such as shop committeeman.
Yount is full-time shop chairman, an elected office. As
such, he oversees 15 committeemen and 15 alternate com-
mitteemen. Under him are three zone committeemen, three
district committeemen-at-large, and an apprenticeship person.
These people make up the shop committee. He and they
make up the bargaining committee which negotiates collec-
tive-bargaining agreements every 3 years. The chairman
heads negotiations. He is also responsible for all of the rank-
and-file appointments to positions in the training center and
for the International appointments as well, at least as far as
their duties are concerned. The shop committee also partici-
pates in the second step of the grievance procedure.
The chairman reports to various International officers. Im-
mediately above Yount is Paul Elliott, the International’s
servicing representative.
When Yount became chairman in 1989, he appointed a
number of trainers. Others, including Kubelsky and Hinman,
were already in their training positions when he took office,
although it had been Yount who recommended to Boone that
he appoint Hinman. Yount also removed a number of train-
ers, admittedly because they supported a candidate against
him or because they, themselves, ran against Yount. Yount,
in 1990, had the International remove one of their appointees
for being insubordinate.
By early 1990, the training program had greatly enlarged.
The number of trainers had grown from a handful to 28 or
30. Consistent with that, Kubelsky’s scheduling and record-
keeping duties increased dramatically. She told Hinman that
she would like to get him switched to full-time scheduling
and recordkeeping, and asked him whether he would take the
job. He told her that he would. Working through Crawley
and his management counterpart, Kubelsky succeeded in hav-
ing Hinman transferred sometime in the fall of 1990.
Hinman’s new duties initially included inputting of pre-
vious history of people who had taken the training classes
into the recordkeeping system. Later Kubelsky taught him
scheduling. Another duty performed by Kubelsky and
Hinman necessitated their being out on the floor on certain
Monday mornings, delivering letters to different areas to sal-
aried training coordinators, advising them of the classes
scheduled for their workers the following week. They would
take 2 to 3 hours to make these deliveries to the salaried
training coordinators. The deliveries could have been made
in a fraction of the time taken, but Kubelsky would fre-
quently stop to chat with employees who called out to them.
While working with Kubelsky, Hinman became aware that
she was unhappy with Yount. She had told him as much.
Once or twice a day, Kubelsky would become engaged in
personal telephone calls which Hinman could tell were not
work related. On these occasions, he would get up and leave
the office rather than overhear something to which he did not
wish to be privy. For the same reason, when they were out
on the floor delivering letters and Kubelsky would stop to
chat with someone, Hinman would walk on ahead so as to
avoid hearing any part of the conversation, and then would
wait for her further down the aisle.
The records that Kubelsky and Hinman were keeping for
salaried and hourly employees in the fall of 1990 consisted
of class title, date they took the class, and hours spent in
class. Records kept did not include pay, benefits, or hos-
pitalization.
In May 1991,7 candidates began campaigning for the of-
fice of regional director. That office is far removed form
Local 933 and oversees locals in Kentucky and Indiana. Al-
though employees do not vote directly for the regional direc-
tor, delegates are elected from the locals who attend the con-
vention and cast votes for the regional director. Although the
actual election was not scheduled to take place until June
1992, the campaigning was starting in the spring of 1991.
In May, Boone announced his candidacy for regional di-
rector. Elliott, Yount’s immediate superior, had already done
so. Yount and the shop committee came out in support of
Elliott. Kubelsky came out strongly in favor of Boone.
Kubelsky’s loyalty to Boone was based on several factors.
Boone had appointed her to her position at the training center
and her success there was in large part due to him. She, in
turn, took an interest in his future success. She tutored him
in English and her brother tutored him in mathematics. This
was done at the training center until early summer when
Boone was barred from the premises. This was possible be-
cause he was no longer actively employed by the Company
but was rather on leave, working as a servicing representa-
tive for the International in the Fort Wayne area. According
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Skilled trades could file a preferred plant application under the
contract.
9 According to Yount, he did not want Kubelsky to deliver her let-
ters in person but rather to mail them by company mail, or drop
them off at his regular Wednesday meetings. Kubelsky and Hinman
to Kubelsky, Yount called the regional director to have
Boone barred from the premises.
In addition to loyalty and friendship, Kubelsky also fa-
vored Boone because she felt that he had been a better chair-
man than Yount and was a better candidate than Elliott.
Kubelsky disapproved of a number of positions taken by
Yount and his shop committee and felt that Boone would
have operated differently. Finally, since Boone had placed
Yount in the chairman’s position when he left, and they were
political allies at the time, Kubelsky felt that Yount was
being disloyal by backing Elliott over Boone.
The campaign for regional director made political enemies
of Yount and Boone. Kubelsky made no secret of her loyalty
to Boone, with whom she maintained contact, mostly by tele-
phone, once or twice a week. She also became outspoken
concerning her displeasure with Yount and criticized him to
her fellow employees, in particular, with regard to what she
perceived as his lack of loyalty to Boone but also with re-
gard to the way he handled his activities as chairman.
In mid-May, Yount spoke to Crawley and Kubelsky, in
private, about the campaign for regional director. Yount told
Kubelsky that Boone was running against Elliott and was
crazy for doing so because he did not stand a chance. He
said that he and the shop committee were supporting Elliott
and that he did not want Crawley or Kubelsky helping Boone
in any way, neither with campaign material nor by showing
support. At this point, Kubelsky mentioned that she had been
tutoring Boone. Yount said that tutoring was all right as long
as she did not get involved in politics.
Despite Yount’s admonition, Kubelsky continued to dis-
cuss union affairs, collective-bargaining and union-related
problems with her friends by telephone and with employees
on the floor on Mondays when she was delivering her letters
containing course assignments and schedules. Her criticisms
and comments were unrelated to her position with the train-
ing center and most often had to do with the weakness of
the shop committee, its failure to keep jobs from ‘‘going out
the door,’’ its permitting outside contracting ‘‘to run wild’’
in the plant, and its failure to make itself available when
needed.
The Friday after Yount’s meeting with Crawley and
Kubelsky, Yount called a meeting with all of the trainers, ap-
pointees, and members of the shop committee. Yount reiter-
ated to those present what he had told Crawley and Kubelsky
earlier that week. He stated that he and the shop committee
were supporting Paul Elliott for regional director and asked
if anyone in the room had any problem supporting Elliott.
One employee, Mike Aldridge, stood up and said that he had
a problem supporting Elliott because he had been a friend
and supporter of Bob Boone for over 20 years. Yount replied
that Aldridge had a lot of courage to stand up in front of
everyone and tell him to his face that he was going to sup-
port Boone over Elliott. Yount then closed the meeting and
walked across the hall from the conference room to a train-
er’s office. There, he made a phone call, overheard by
Kubelsky, during which he stated to some unknown individ-
ual that he wanted Aldridge removed from office. Stan Col-
lins testified that Aldridge was removed from office and that
before removing Aldridge, he spoke with Yount about this
removal.
The action date for Aldridge’s removal was June 17, the
process date was July 1, according to personnel records. The
removal and reassignment was pursuant to a negotiated trans-
fer. Aldridge was returned to the classification he had been
assigned several years earlier through contract negotiations.
He was not, however, returned to either the plant or the de-
partment where he had worked prior to his appointment as
trainer. Aldridge had no transfer application nor demand
1508 application on file so his placement was at the discre-
tion of the Company. He was placed where he was needed
subject to the results of the negotiated transfer to which all
trainers are subject.
A couple of weeks after Yount’s meeting with the trainers
and other appointees during which Aldridge had taken his
position in favor of Boone, a member of Yount’s shop com-
mittee, Darrel Andry, called Hinman and asked him to have
lunch with him. When they met for lunch, Andry advised
Hinman that he felt that Boone had been dabbling in local
politics and he could not understand why. He asked Hinman
if he could be the eyes and ears of the committee in the
training department and let the committee know if anyone
had communications with Boone. Hinman replied that he felt
very uncomfortable about being put in that position and did
not think it was fair. Andry apparently made no further com-
ment. Hinman later explained to Yount that he did not want
to be a rat.
According to employees Carolyn Rhoton and Mary Ebert,
during the summer of 1991, they began to see Kubelsky
more often out on the floor than previously. Sometimes she
was alone and sometimes she was accompanied by Hinman.
One Monday morning, later in the summer, they noticed
Kubelsky and Hinman walking up the aisle in their direction.
Kubelsky stopped to chat but Hinman kept walking. After
some small talk, Kubelsky started talking about her support
of Boone. Rhoton said that she thought that Kubelsky had
been asked not to politick for Boone on the job. Kubelsky
replied that Bob Boone put her where she was and she would
always support him. The conversation then turned to Terry
Yount and his shop committee. Kubelsky stated that neither
Yount nor the members of the committee could be trusted,
that they lied and one could not believe anything they said.
She said they were crooked. She then excepted Tim Snyder,
however, and identified him as the only man on the commit-
tee worth keeping. Rhoton defended the shop committee,
stating that she had never caught any of them in a lie, that
when she asked them for the truth, they told her the truth.
Kubelsky persisted, arguing that just because Rhoton had not
caught them did not mean they did not lie. The conversation
ended there.
Following her conversation with Kubelsky, Rhoton re-
ported its content to her committeeman, Dave Cline. Cline,
in turn, remarked on it to Yount who later met with Rhoton
and asked her what Kubelsky had said. Rhoton repeated her
conversation with Kubelsky to Yount. This was the same
day. Yount made no comment at the time.
About this time, Yount heard from several of his com-
mitteemen that Kubelsky had been seen out on the floor. He
told Garrett that he should tell Kubelsky to stay in the train-
ing center and do her job, and not to be out on the floor.9
1003GENERAL MOTORS CORP.
credibly denied that they were ever told to stop delivering their let-
ters in person.
10 Collins, at the time, was manager, employee relations.
He also visited Kubelsky at her workplace at the training
center. He asked her if she had a problem with him or was
mad at him. She replied that although she objected to some
of the things that were going on in the local, she had no
problem with him specifically, and that she still intended to
vote for him for chairman in the forthcoming election. Ac-
cording to Kubelsky, Yount did not, during this meeting,
mention the amount of time Kubelsky was spending on the
floor, her politicking, or her conversation with Rhoton.
After receiving reports from Rhoton and other sources that
Kubelsky and other trainers and appointees were politicking
against him and his committee, Yount decided he would
meet with the individuals involved and likely remove them
from office. Yount apparently shared his intentions with oth-
ers because on the evening of Thursday, September 5,
Kubelsky received a call from Boone who advised her that
he had received information that her phone in the training
center had been tapped, that union officials had been playing
the tapes of Kubelsky’s phone calls for other union officials,
and that she would be removed from office the following
Monday because of what was on the tapes.
On Friday morning, September 6, Kubelsky went to the
personnel office accompanied by Hinman and spoke with
Ron Lane, the individual in charge of placement. She told
him that she had reason to believe that she was going to be
removed from office the following Monday and wanted to
know where she would be placed. Lane pulled her cardex
which reflected her employment history and, after noting that
her old department no longer existed, told her that she would
either fill an open requisition in her classification, if one ex-
isted or, if not, bump the youngest person in her classifica-
tion in the division. Lane then took Kubelsky and Hinman
around to speak to the person in charge of requisitions to see
if there were any openings. They were then advised that
there were three open requisitions in Kubelsky’s classifica-
tion in the AT building, also known as plant 7. Lane told
Kubelsky that one of the three open requisitions would be
held for her and she was supposed to be assigned there. He
cautioned her, however, that if the Union and management
cut another deal, in the negotiated transfer, he had no control
over that.
After talking with Lane, Kubelsky went to the labor rela-
tions department and spoke with Stan Collins.10 She told
Collins that she expected to be removed from office the fol-
lowing Monday, that she had checked with Ron Lane, and
that there were open requisitions in the AT building in her
classification. She said that that was where she was supposed
to be going and that if Yount came over there Monday and
tried to cut a deal to move her somewhere else, she would
know that something had happened. Collins simply said,
‘‘Okay.’’
Collins testified that he received a call from Kubelsky in-
quiring about where she would be assigned if she were re-
moved from office. After checking with his placement clerk,
he advised her that there were two open requisitions in her
classification in the AT building—plant 7. This conversation
occurred prior to any discussions with the Union concerning
the placement of Kubelsky. Collins acknowledged that ac-
cording to the records, following negotiations with the
Union, Kubelsky was placed in a position other than in plant
7.
It was also probably on Friday, September 6, that Yount
first contacted Stan Collins and Dave Jackson, assistant per-
sonnel director, and advised them that he was going to have
a meeting with several of his trainers, including Kubelsky, to
discuss some ‘‘violations’’ that they had committed against
the Union and himself. He said that he did not know what
he was going to do, but he might be requesting that they be
put back in their original classifications. He asked Collins
where Kubelsky might go if she were removed from the
training center. Collins advised Yount that there were three
openings in her classification in the AT building.
On the morning of September 9, Yount called Garrett and
told him to get Crawley and meet him in a classroom in the
training center. Garrett followed instructions and the three
and the entire shop committee met. Yount then gave Crawley
a list of trainers to whom he wished to speak about their
being involved in politics. Among the names on the list were
Jerry Holden, Dennis Hinman, Dan Kubelsky, Harold
McBryar, Philip Hale, and Jane Kubelsky. Certain of these
were trainers with whom Kubelsky had discussed politics ei-
ther over the phone or in person.
About 8 or 9 a.m., Kubelsky and Hinman were out on the
floor, in one of the plants delivering letters, as they usually
did on Monday mornings, when Hinman’s pager went off. It
was the receptionist who advised him that the chairman
wanted him and Kubelsky to return to the training center.
When they returned, Hinman was summoned to the class-
room where the meeting was taking place.
When Hinman entered the classroom he noticed that
Yount, Crawley, Garrett, and virtually all of the shop com-
mittee were present. Yount immediately began questioning
Hinman concerning his involvement with Boone. He asked
him if he had had lunch with Boone the previous Friday.
Hinman denied it. Yount then asked if Hinman had seen
Boone the previous Friday. Again, Hinman replied that he
had not. Yount accused Hinman of lying and stated that he
had a good source that said that Hinman had been seen hav-
ing lunch with Boone on Friday. Hinman explained that the
previous Friday he had gone to lunch with 13 trainers, 1 of
whom was celebrating a birthday.
Yount next asked Hinman if he had been politicking
against him. Hinman denied it. Yount then asked him if
Kubelsky had been politicking against him; Hinman said no,
not to his knowledge, that when Kubelsky stopped to chat,
he always walked ahead, to avoid hearing what was said.
Yount asked if Kubelsky had been receiving phone calls
from Harold McBryar. Hinman conceded that she had. Yount
then asked what they were about and Hinman replied that he
did not know because he did not listen in on the conversa-
tions. Hinman was then dismissed from the meeting.
Prior to Hinman’s interrogation, several of the other train-
ers had been called into the meeting and had been questioned
in a similar manner. As Hinman was leaving the meeting,
Crawley was instructed to ask Kubelsky to come in. Crawley
and Hinman walked to Kubelsky’s office together. Hinman
was quite agitated. When they arrived, Hinman described to
Kubelsky, in detail, the questioning he had just gone through.
When Crawley invited Kubelsky into the meeting, she re-
fused to go. She commented about the interrogation and not
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Kubelsky denied this version of the confrontation. I credit Gar-
rett, however.
12 Kubelsky denied having done this. I credit Yount.
wanting to be a part of their ‘‘Gestapo tactics.’’ Crawley
then sent Hinman back to the classroom to get Garrett.
When Hinman reported to Garrett that Kubelsky had re-
fused to come to the meeting, Garrett informed Yount of her
refusal. Yount then instructed Garrett to invite Kubelsky to
come into the meeting and answer some questions. He told
Garrett to tell her that she could either come into the meeting
or quit, that it was her choice.
Garrett left the meeting along with Crawley who had, in
the meantime, returned to the classroom. As Garrett ap-
proached Kubelsky, who was just outside her office, he was
greeted by a barrage of profanity, directed at him, Yount,
and the committee, even before he had a chance to say any-
thing. Kubelsky stated that she wanted nothing to do with his
‘‘Gaddamn Gestapo kangaroo court.’’ Garrett objected, stat-
ing that he was only the messenger. He then told her, as in-
structed, that she could go into the room and answer some
questions or she could quit the training center, and those
were her choices.11 Kubelsky stated that she was not going
into that room, referring to Yount and the committee mem-
bers in the most derogatory and obscene terms. Garrett, at
this time, or shortly thereafter, told Kubelsky that Yount had
told him to tell her that she was fired, that she should clean
out her desk and be out of there by 3 o’clock, and that there
would be no overtime.
After Kubelsky refused to attend the meeting, the shop
committee called in several other trainers to examine them
as to their political activities and those of their fellow ap-
pointees. Jerry Holden, Dan Kubelsky, and Harold McBryar
were summoned and questioned as well as others.
After Garrett told Kubelsky that she had been fired from
her training job, she called the personnel placement office to
find out which of the three requisitions she was going to fill.
This was about 10:30 a.m. She was told at that time that she
would be going to department 4302 in the AT building.
Kubelsky then began to clean out her desk.
After the shop committee meeting with the various trainers
was over, Yount decided, on the basis of what he had
learned from them and others that he would remove three ap-
pointees in addition to Kubelsky, Hinman, and McBryar for
politicking and Hale for failure to perform his duties satisfac-
torily. Yount testified, in explaining why he had removed
McBryar, Kubelsky, and Hinman, that they had been sup-
porting Boone as a candidate and had been out on the floor
making derogatory and slanderous remarks about him and his
shop committeemen. He added that Kubelsky was also fired
for insubordination for refusing to attend the meeting. He
testified that he did not appreciate her standing outside the
door to the meeting room, calling him names, and making
an obscene gesture at him.12
After the meeting, Yount contacted Collins and told him
that he had removed the four appointees and that they should
be returned to their classifications. The transfers were nego-
tiated between Collins and Yount, at that time. The actual
discussion between them, concerning placement of the re-
moved appointees, however, is not reflected in the record.
Half an hour to an hour after the meeting, after lunch,
Crawley came to Hinman’s and Kubelsky’s office and along
with Phil Hale took them to an empty classroom. He then
told them that they were being removed from the training
program, that they would be getting new assignments by the
end of the day, and to start clearing out their desks and be
done by the end of the day.
About 2 p.m., Crawley again visited their office and ad-
vised them of their assignments. Hinman was assigned to de-
partment 1350 in the WT building where he was to fill an
open requisition. Kubelsky was assigned to department 2236
located in plant 2. Shortly thereafter, the management coordi-
nator delivered written assignments to the three removed ap-
pointees.
McBryar, the other appointee removed that day, was a
quality network representative who had been appointed by
the International. As noted, he had been involved in union
politics, and was removed by the International at Yount’s re-
quest, for that reason.
After being informed that she was going to department
2236, Kubelsky called Collins. She told him that, as late as
10:30 that morning, she had been scheduled to go to depart-
ment 4302 and now she was going to department 2236. She
asked Collins for an explanation. Collins explained that
Kubelsky was filling a secondary opening of an employee
who had transferred through the transfer agreement with the
Union from his MST job in department 2236 to a new classi-
fication. She asked Collins if filling a secondary opening
took priority over an open requisition and Collins confirmed
that it did. When she questioned Collins further, he told her
that he had just done what he was told.
Although Kubelsky felt that her assignment to department
2236 was wrong, she did not file a grievance nor a formal
appeal. She did, however, file charges with the Labor Board
on September 11, the day after she began work in her new
department. Kubelsky spent the rest of September 9 cleaning
out her desk.
Although the record is unclear as to precisely why
Kubelsky was not assigned to department 4302 as she origi-
nally expected, it is clear why she was needed in department
2236. The records indicate that employee Jerry Norris, a ma-
terial services trucker in department 2236, on July 8, filed an
application for transfer to a different classification, entitled
manufacturing, general. For one reason or another, perhaps
because there were no openings or maybe there was no re-
placement available for Norris, his application was not im-
mediately acted on. On August 21, however, a job opening
for an employee in the manufacturing, general classification
occurred in department 0385. Nevertheless, Norris’ applica-
tion was not honored at this time, probably because there
was no replacement available to backfill his job. On Septem-
ber 9, when Kubelsky was removed form her training pro-
gram, she immediately became available to fill Norris’ job
since she was a material services trucker. She was imme-
diately assigned to his job and he was released the same day
to fill the manufacturing, general position in department
0385, available since August 21. Meanwhile, the material
services trucker position in department 4302, which
Kubelsky had expected to fill, open since September 3, was
not filled until October 21, thus indicating that the Company
gave far more priority to the replacement of Norris and to
the filling of the manufacturing, general vacancy then to the
filling of the opening in department 4302. The transfers all
around appear to have served legitimate business consider-
1005GENERAL MOTORS CORP.
ations. Moreover, although under the transfer agreement, an
employee has a right to be returned to his classification, on
removal from a particular position, he has no right under that
agreement to be assigned to a particular job or department,
not even to a position he had previously held. To be assigned
to a new classification or to a particular plant or department,
an employee must file an application for transfer to have his
preference receive consideration. Without such an application
on file the Company is free to place a displaced employee
anywhere at its convenience. At the time of her removal
from the training program, Kubelsky had no application for
transfer on file.
Dennis Hinman, on September 9, was transferred to de-
partment 1350 in plant 6, to fill an open requisition. When
he first was transferred into the training center, it was from
department 4399. Thus, Hinman was not returned to his old
department. Since he had no application for transfer on file
at the time, he was not considered for any particular place-
ment which he might have desired. The Company was thus
free to place Hinman anywhere as long as it was a job in
his classification. His classification was one to which he had
been assigned while in the training program. Hinman did not
dispute the appropriateness of his job assignment on removal
from the training program.
Kubelsky started on her new assignment at 4 p.m. on
Tuesday, September 10. According to her testimony, depart-
ment 2236 is a warehouse for spare parts that are shipped
out to customers who generate the orders. A group of em-
ployees called pickers go out and pick the individual pieces
to fill the orders, then bring them to packers who box the
orders. The packers place the boxes on a conveyor which
carries the boxes to Kubelsky’s work station. Kubelsky takes
the boxes off the conveyor and places them on a table scale,
weighs them, and enters the weight into a computer which
generates shipping labels. She then adheres the labels to the
boxes which she then carries over to place on skids for the
truckdrivers to pick up.
Kubelsky testified that she carries the boxes manually be-
cause there is no overhead crane. The boxes reach a maxi-
mum weight of 70 pounds and average 150, in number, per
night or 300 lifts per shift. The job involves some bending
since the conveyer is about 1 foot from the floor. There are
16 to 18 employees working in department 2236 on
Kubelsky’s shift and this is the only warehouse of its type
in the division.
Kubelsky compared her work in department 2236 with the
work she would have been doing had she been assigned to
department 4302, as expected. She testified that in depart-
ment 4302 she would have been on the afternoon shift work-
ing with about 150 other employees, but with her seniority
she would have been able to bump onto the day shift imme-
diately, on which some 300 employees work. She admitted
that in department 4302 she might have been involved in
some heavy lifting and other physical labor but little bending
since the lifting is primarily chest high lifting off shelves.
Kubelsky testified that there was an unwritten rule through-
out the division that anything weighing over 50 pounds is
lifted by means of an overhead crane. She mentioned also
that in department 4302 there are jobs similar to the one she
held before going into the training program, consisting of
computerized scheduling and recordkeeping.
Kubelsky testified that while employed in department 2236
she sustained a work-related injury and was off on work-
man’s compensation for an unknown period of time. The
record is silent as to when the inquiry was suffered and how
much work she missed.
To counter Kubelsky’s description of the duties she had
been assigned in department 2236, Respondent Company
called as a witness, Robert Gray, an hourly employee work-
ing on the day shift in the same department in the same clas-
sification as Kubelsky. He testified that he performs the same
duties as she. He agreed with Kubelsky that they receive the
boxes sent down the conveyor by the packers but noted that
the MST controls the conveyor’s speed, that he lifts only the
smaller boxes to the scale, and that he lets the heavier ones
go by to an integral scale built into the conveyor, then on
to where the forklift drivers will come and pick them up.
Gray testified that he handles on an average, 100 boxes per
shift and does the job alone whereas there are 2 MSTs on
Kubelsky’s shift. The average weight of the boxes, according
to Gray, is between 8 and 12 pounds and he will not pick
up anything over 50 pounds. At his discretion, Gray will
sometimes ask the group leader to help lift a box if he does
not want to lift it alone. The heavier boxes average 36
pounds. Occasionally a 50-pound box is sent down the line.
These are identified by markings on the top, made by the
handlers further up the line, so that the MST knows enough
to let it go by. These, boxes, so marked, have not been put
on skids because, although heavy, they are too small. Other
50-pound boxes have already been put on skids. These, the
MST bands to the skid. After putting the proper information
into the computer, the box, banded to the skid, rolls on down
to the truckdriver to load.
Gray testified that he will handle boxes that are 39 or 40
pounds but if he receives a box that weighs in the high 40s
or 50 pounds, he considers it a mistake and sends it back to
be placed on a skid. Since the MST controls the conveyor,
he can stop it at any time and tell the packers not to send
such heavy boxes. Gray testified that he liked his job and de-
nied that it was onerous. He stated credibly that he has 26-
1/2 years of seniority and could have transferred out of his
job, if he chose, at any time, but has not done so. Gray testi-
fied that he observed Kubelsky at work and although he
could not comment on the manner in which she performed
the job, he could say that it was the same job that he did.
He added that the only 70-pound box he ever got was on a
skid.
Jim Fennell, who had been personnel manager, and who,
at the time of the hearing, was manager, employee relations,
also described the duties of an MST in department 2236. His
testimony was in general agreement with that of Gray. The
Company placed in the record a job description for the MST
classification. It contains the phrase ‘‘May be required to do
heavy lifting,’’ which, of course, is relative. Also placed in
the record was a list of employees, with less seniority than
Kubelsky, who successfully moved to different classifications
under the Company’s transfer agreement with the Union.
Kubelsky has not filed an application for transfer to another
classification or shift, nor a grievance or safety grievance
since her placement in department 2236. Any grievance she
might have filed would have been handled through her elect-
ed committeemen. Only if the grievance were not resolved
at steps 1(a) or (b) would Yount become involved.
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 General Motors Corp., 132 NLRB 1325 (1989); Shenango, Inc.,
237 NLRB 1355 (1978).
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Conclusions
The record reflects that Terry Yount and each of the mem-
bers of the shop committee were duly elected by the union
membership in the unit of employees they were to represent.
These union officials gained office following a campaign in
which they presumably promised the electorate that they
would serve them to the best of their ability, perform their
duties in a trustworthy manner, and undertake programs
which would benefit the membership.
In order to fulfill the promises made to the electorate, to
faithfully perform his duties and to carry out his program,
each chairman, after being elected, appointed a number of in-
dividuals to various offices, to see that his programs were
successfully administered. Of necessity, these appointees had
to be trusted to be loyal to the chairman’s administration, to
his programs, and to the objectives of those programs. The
chairman and his committee had a right to be confident that
his appointees would remain loyal to him, his committee,
and their programs. Any indication of disloyalty to his ad-
ministration or any attempts to undermine his programs
should result in the removal of that appointee. This is only
proper, otherwise the administration would be inoperative
and the programs would fail.
In the instant case, Yount did not seek the discharge of
Kubelsky and Hinman. He merely removed them from the
offices they had been assigned by the chairman in office at
the time. He did this because he suspected that they were
politicking against his administration and he could no longer
count on their complete loyalty to carry out their duties in
full conformance with his directives, thus putting the pro-
gram to which they had been assigned, in jeopardy. From the
viewpoint of the Union, its chairman could remove any ap-
pointee from a position to which he had been appointed by
that chairman or predecessor, even for politicking. For the
reasons stated supra, I agree.13
From the viewpoint of the Employer, it hired Kubelsky
and Hinman as rank-and-file employees and assigned them
classifications with corresponding duties connected therewith
to be performed at their work stations in the plant. Kubelsky
and Hinman satisfactorily performed their duties. When, in
accordance with the collective-bargaining agreement with the
Union and the jointness program, the shop committee chair-
man appointed Kubelsky and Hinman to positions in the
training center, the Employer continued paying them the
same wages and awarding them the same benefits, in accord-
ance with their respective classifications. When the two al-
leged discriminatees were removed from their positions at
the training center, they were returned to jobs in their classi-
fications with no change in wages on benefits. I find that the
Employer acted properly in permitting the shop chairman to
first appoint Kubelsky and Hinman to positions in the train-
ing center then later remove them from those positions.
From the viewpoint of Kubelsky and Hinman, it is under-
standable that they should be displeased with their removal
from their positions at the training center. However, they
were hired by the Employer to perform manual labor in one
or another of its plant. They were not hired to perform white
collar or clerical duties. When they were returned to plant
duties, the work was, of course, more onerous than that
which they had performed in the training center. That their
duties had become more onerous, however, was not due to
any discriminatory motivation on the part of the Employer,
but rather to the mechanics of the transfer and the nature of
the jobs.
As to the allegation that Kubelsky was assigned to a more
onerous job in department 2236, rather than to the job she
sought in department 4302 for discriminatory reasons, I find
insufficient evidence to warrant the conclusion that the trans-
fer to the one department rather than the other was motivated
by reasons violative of the Act. Moreover, with regard to the
duties performed by Kubelsky in department 2236, I credit
Gray’s description of the MST’s duties over that of
Kubelsky. I find those duties not all that onerous, otherwise
Kubelsky would have file an application for transfer which,
because of her seniority, she could have, in all probability,
successfully done. I shall, accordingly, recommend the dis-
missal of all allegations.
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning of
Section 2(2) and is engaged in commerce as defined in Sec-
tion 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. Neither the Company nor the Union has committed any
of the unfair labor practices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The complaint is dismissed in its entirety.