Local 227, Automobile Workers

National Labor Relations Board - Board Decisions

Apr 28, 1970

182 N.L.R.B. 182 (N.L.R.B. 1970)

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 227, International Union , United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW) (Chrysler Corporation) and Michael
J. Modeiski . Case 7-CB-1987
i
April 28, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On January 6, 1970, Trial Examiner Stanley N. Ohlb-
aum issued his Decision in the above-entitled proceeding,
finding `that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amend-
ed, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting 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 powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial Examin-
er.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner , and orders that the
Respondent , Local 227, International Union , United
Automobile , Aerospace and Agricultural Implement
Workers of America (UAW), Detroit, Michigan, its
officers, agents, and representatives , shall take the action
set forth in the Trial Examiner ' s Recommended Order.
MEMBER BROWN, dissenting:
I would dismiss this case for I am not satisfied that
the record preponderantly establishes the violations
alleged.
' These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner to which the Respondent has
excepted The Trial Examiner's credibility findings are not contrary
to the clear preponderance of all relevant evidence Accordingly, we
find no basis for disturbing those findings Standard Dry Wall Products,
Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Trial Examiner: This proceed-
ing under the National Labor Relations Act as amended,
29 U.S.C. Sec. 151, et seq. (Act), brought on by com-
plaint issued through the National Labor Relations
Board's Regional Director for Region 7 (Detroit, Michi-
gan): on July 30, 1969, based upon a charge filed on
June 13, as amended June 25, 1969,' by Michael J.
Modelski, was heard; before me in Detroit, Michigan,
on October 13 and 14. All parties participated throughout
and were afforded full opportunity to present evidence
and contentions, propose findings and conclusions, and
file briefs. Subsequent to the trial, extensions of time
for that purpose having been allowed on application
of counsel, a brief was received from Respondent. That,
together with the record made at the trial, has been
carefully considered.
Upon the entire record' and brief, as well as my
observations of the testimonial demeanor of the witness-
es, I make the following:
FINDINGS AND CONCLUSIONS
II. PARTIES; JURISDICTION
At all material times, Respondent has been and is
a labor organization within the meaning of Section 2(5)
of the Act. At all of those times, Chrysler Corporation
(Chrysler) has been and is a Delaware corporation with
its principal executive offices in the city of Highland
Falls, Michigan. Chrysler maintains plants, offices, and
facilities in Michigan and other States, where' it engages
in manufacture, sale, and distribution of motor vehicles
and related parts and accessories. The Chrysler plant
at 12640 Burt Road, Detroit, Michigan (Burt Road plant),
is the only facility involved in this proceeding. During
the representative year ending December 31, in the
course and conduct of its said operations, Chrysler
manufactured, sold, and distributed from its Michigan
facilities, products valued in excess of $1,000,000, ship-
ping such products directly in interstate commerce to
places outside of Michigan; and, during the same period,
Chrysler also purchased and caused to be transported,
directly in interstate commerce from places outside of
Michigan to its facilities in Michigan, motor vehicle
parts and other goods and merchandise valued in excess
of $1,000,000. Michael J. Modelski is an individual who
in May through June was an employee of Chrysler
at its Burt Road plant, and a member in good standing
of Respondent's Union. I find that at all material times
Chrysler has been and is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
Hereinafter all unspecified years are 1969
i Trial transcript in respect to obvious and typographical errors have
been noted and corrected
182 NLRB No. 30
LOCAL 227, AUTOMOBILE WORKERS 183
I find that assertion of jurisdiction in this proceeding
is proper.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issue
The issue presented is whether Respondent Union
has violated: (1) Section 8(b)(1)(A) of the Act by restrain-
ing and coercing Chrysler employees in exercise of
rights guaranteed by-Section 7 of the Act through (a)
threatening Modelski with discharge because he had
expressed dissatisfactions about the Union and its modus
operandi, (b) demanding and causing the discharge of
Modelski from his employment with- Chrysler; and (c)
stating to employees that Modelski had been discharged
because of his complaints about the Union; and (2)
Section 8(b)(2), by causing Chrysler to discharge Model-
ski because of his complaints about the Union, thereby
attempting to cause and causing Chrysler to discriminate
against employees in violation of Section 8(a)(3) of the
Act.
B. Facts as Foun`d'
Michael J. Modelski, the Charging Party, is a Universi-
ty of Michigan student who obtained a 1969 summer
job at the Chrysler Burt Road plant in Detroit, as
1 of 20 stockpickers-packers-nailers. The job, hourly
rated and weekly paid, was not to exceed 90 days.
He started on May 19 expecting to be laid off during
the last week of July or the first week of August,
to resume school later in August.
Before, starting work, Modelski signed a prehire,form
(Enrollment Form for Hourly Employees) in which he
authorized a payroll deduction or. `check-off ",for both
union. initiation fee, and, dues to Respondent Union.3
' Instructions on the reverse side of the form covered various subjects
on the front of the form, including employee authorizations for tax
withholdings , payroll savings , charitable pledge, group life insurance,
and health care coverage Subject number "8" was the " check-off"
authorization It read
8 Authorization for Check-off of Dues
UNION MEMBERSHIP CONDITION OF CONTINUED
EMPLOYMENT
The Agreement between Chrysler Corporation and the Internation-
al Union, UAW and Local Unions requires all employees to become
members of the Union to the extent of tendering an initiation
fee and membership dues, as set forth in the Agreement
Employees who are presently members of the Union must remain
members for the duration of the Agreement Employees covered
by the Agreement who are not members of the Union must become
members within 10 days following the 30th day after the effective
date of the Agreement.
Employees hired , rehired, reinstated or transferred into a bargain-
ing unit after the effective date of the Agreement must become
members within 10 days after the 30th day following the beginning
of employment All employees are required to remain members
of the Union for the duration of the Agreement
Employees may have their dues deducted from their earnings
by signing this ' Authorization for Check -Off of Dues ' form, or
they may pay dues directly to the Union . Employees on Check-
Off may have the Check -Off cancelled as provided thereon and
pay dues directly to the Union , however , they must remain members
of the Union for the duration of the Agreement
This "check -off" provision and quoted form were pursuant to the
subsisting collective agreement between Chrysler and Respondent
Modelski testified that although, prior to taking the
job at Chrysler, he was "aware" he would have to
join the Union and pay dues, there was no discussion
of these subjects during the prehire interview, but that
he was "aware" that the $20 union initiation fee was
typed in at the appropriate place on the form when
he signed it. However, he now claims that he did not
read the authorization before he signed it, even though
it states, in part, "I hereby certify that I have read
and understnad . . ." it; and he now claims that when
he signed the prehire form authorizing the "check-off"
for the union initiation fee and dues he was not "aware"
that there would be such a "check-off," although he
was and is unopposed to payment of such union fee
and dues by checkoff. There is no evidence that Chrysler
in any way coerced,' required, or even indicated that
Modelski should sign the "check off" authorization form
which he now denies he read,4 but which I find he
either read or was at least "aware" of the content
of
Modelski's first paycheck, for the pay period ending
May 25 (Sunday), distributed the following Friday (May
30), indicated a deduction of $6.76 for union dues.
He concedes he "had no objection to the dues deduc-
tion." On his next paycheck, for the pay period ending
June 1 (Sunday), distributed the following Friday (June
6), Modelski noticed a deduction of $20 for union initia-
tion fee as well as $6.76 for dues.. According to Model-
ski's testimony, over the ensuing weekend he clipped
from an issue of a weekly publication, received at his
home during the preceding few days,5 an item therein
to the effect that employers may not lawfully require
employees, at the time of hiring, to execute "check-
off" authorizations for union fees, but that 30 days
of employment must first expire before such a require-
ment may be imposed and such fees deducted from
pay 6.7
On the ensuing Monday, June 9, Modelski approached
Union Steward Clover in the plant in the presence
Indeed, the instructions accompanying that authorization (quoted
supra , fn ' 3) expressly point out that new employees have " 10 days
after the 30th day following the beginning of employment " to become
members of the Union, in accordance with the subsisting collective
agreement There is, of course, no prohibition or bar , statutory or
otherwise , to an employee's joining the Union earlier than that, such
as at the inception of his employment.
I I.e., U S News and World Report, issue of June 9 It is a matter
of common knowledge that this among other such magazines is publicly
distributed prior to , and in some cases about a week prior to, the
publication date appearing thereon Modelski's testimony establishes
this is such a publication and that it was so distributed Modelski
was unable to recall the precise date when he first read the item
in question
The magazine item reads -
"YOU [i .e , employer ] CANNOT require new employees, at the
time of hiring, to apply for union membership and to sign checkoff
authorization for union fees. The National Labor Relations Board
finds that an employer violated the Taft-Hartley Act by such a
requirement and by deducting the union fees during the first 30
days of employment . The employer is ordered to reimburse employ-
ees for the amount deducted "
It is reiterated that there is no evidence that the Employer here
(Chrysler) at any time , in any way , required Modelski to execute
the "check -off" authorization form which he signed at his preemployment
interview
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his fellow-employee Janice-with whom Modelski
had discussed the subject of union-fee deductions from
pay-and, showing the magazine clipping to Clover,
told Clover that the $20-union-initiation-fee deduction
from Modelski's pay was improper.8 Clover indicated
that it was inapplicable to Modelski, but Modelski persist-
ed that the $20-initiation-fee deduction was improper
since he, had only been there for 2 weeks. Clover then
accused Modelski of freeloading. When Modelski stated
it was "illegal,", the discussion heated up into an
exchange of display of political party credentials, and
there ensued a colorful political discussion, during which
Modelski voiced opposition to the Union and Clover
referred him to the National Labor Relations Board.9
That same afternoon (Monday, June 9), in the plant
cafeteria, there occurred a similar type of exchange
among Modelski on the one side, and, on the other
side, then Chief Union Steward Clover, longtime Local
Union President Herron, and Union Committeeman Zid-
zik.10 When Modelski continued to assert that the'deduc-
tions from his pay were unlawful,' he was branded
as a "trouble" maker.-Herron told him:
. . . . so you're the fellow who wants to cause
trouble around here, hey? . . ' Listen, you don't
have to be working here. You can be out on the
street pumping gas for a buck 50. . . . I've had
a lot of guys come in here, young fellows, trying
to give me trouble. I've been here a long time
and I've helped build up this structure and I'm
not going to have anybody come inhere and trying
to do anything to it." I
" Modelski was supported by General Counsel witness Janice in
his testimony that this conversation occurred on Monday, June 9,
following an earlier discussion by Modelski with him on the subject
of the "check-off " Union Chief, Steward Clover (now no longer a
Chrysler, but a union, employee) insisted, however, that the conversation
occurred during the preceding week, on June 5 or 6, and, during
cross-examiiation, that it was on Thursday, June 5 In view of Janice's
corroboration of Modelski, the seeming unlikelihood that Modelski would
be making an issue over the initiation fee deduction before he ever
saw it on his paycheck (which, if Clover's version is to be credited,
Modelski had not as yet received), and the likelihood that it was
indeed-as1 testified by Modelski-the magazine item, clipped by him
on the weekend after receiving his paycheck on Friday showing the
$20 deduction, which triggered his protest to Clover, I credit Modelski's
version that the described conversation with Clover occurred on Monday,
June 9, although the precise date does not appear to be of transcending
importance
',Based upon the testimony of Modelski as substantially corroborated
by Janice, in preference to the partially contrary testimony of Shop
Steward Clover, who now works for the Union. During cross- examina-
tion, Clover defined his understanding of a "closed shop" to be "a
state where they don't have unions
10 Again, according to Clover, as well as Herron and Zidzik, this
occurred on Friday, June 6 I do not regard the difference of date
to be of overriding significance
11 A variant version of this conversation is provided by Local Union
President Herron (a Chrysler employee since 1946, and now an "Inspec-
tor" at the Burt Road plant; and since 1963 the local union president)
According to Herron, when Modelski questioned him why the union
fees-dues as well as initiation fee-had - been deducted from his pay,
Herron,merely asked Modelski whether he had "voluntarily" signed
the "check-off" authorization, which Modelski agreed he had, and
then, when he told Modelski that if he had not done so he would
have had,40 days to join, Modelski said he,thought this was "wrong"
and that he would "pursue this matter further and go to the National
Labor Relations Board " Herron, insisting that he was the only one
Later in the afternoon, Union committeeman Zidzik
approached Modelski on the job and resumed the earlier
conversation. When Mbdelski again showed him the
magazine clipping, Zidzik told him that since it was
a "closed shop" he could not be hired unless he was
a union member; but that, although he was automatically
a union member on hiring, he could not be represented
by the Union until the expiration of 30 days.12
On the following day (Tuesday, June 10), Clover
pointed Modelski out to another or other employees
as a person who "doesn't want to pay his dues to
the union."13
On the next day (Wednesday, June 11), in midweek,
Modelski was summarily discharged by being handed
a typewritten dismissal notice stating as the reason:
"not suitable for this type' of work." It was signed
for a buck 50. . : I've had a lot of guys come in
here, When Modelski pointed out that his productivity
was substantially in excess of that required, Wartella's
response was that he (Wartella) did not know why
he was being fired and referred him to Plant Superintend-
ent Novak (who had approved the dismissal notice).
When Modelski saw Novak, Novak referred him back
to Wartella. Wartella then indicated to Modelski (who
had been joined by Shop Steward Clover) that although
he ;had no complaints about, Modelski's work, he had
received the dismissal order "from upstairs." Modelski
left, with Clover assuring him the Union would get
him his job back.
On the following morning (Thursday, June 12), Model-
ski visited Chrysler Personnel Representative Carter in
the plant and, recounting to him the foregoing events,
asked him why he had been, discharged, since nobody
seemed to know, "unless it was for some reason the
union was angered." According to Modelski,`, 'Carter
admitted giving the actual order to, fire Modelski on
of the three union officials who spoke to Modelski , on this occasion,
flatly denied calling Modelski a " trouble-maker " or anything similar
Testifying with regard to the same episode , Union Committeeman Zidzik
(also a Chrysler " Inspector") in part supported Herron's version, but
appeared to back off committing himself to details by insisting that
although he was there he was "not -a part of this conversation at
all," as did former Shop Steward Clover (now a union employee),
who was also there, but who testified that he either did not hear
or could not remember what Modelski said and that he paid little
if any attention to the conversation This impresses me as hardly
likely in view of Zidzik ' s direct interest and Clover ' s active involvement
with Modelski earlier that day During cross-examination , Clover also
denied discussing the Modelski matter with either Zidzik or Herron
at any time prior to Modelski ' s discharge . This also impresses me
as highly unlikely I further have extreme difficulty in accepting Zidzik's
insistence that it was only once , a few days after Modelski's discharge,
that he spoke to -Local Union President Herron about Modelski On
balance, including testimonial demeanor app?aisals , I regard Modelski's
version as preferable and therefore accept it
11 On comparative demeanor , to the extent of any inconsistency
I credit the testimony of Modelski to this effect in preference to
that of Zidzik , who testified that on Tuesday , June 5, after Clover
had told him that Modelski had a "problem " regarding the checkoff
of dues and initiation fees, he (Zidzik ) approached Modelski and informed
him in response to his (Modelski's ) question that the deductions should
be made if Modelski had signed an authorization, and that when Modelski
showed him the clipping, Zidzik indicated it might be so "in different
areas" but not " herein our own plant."
10 Modelski ' s testimony to this effect . is undenied by Clover, who
testified with regard to other matters
LOCAL 227, AUTOMOBILE WORKERS ^
instructions of Carter's superior (Chrysler Labor Rela-
tions Supervisor Sheehan), and indicated that the Union
had instigated it. However, still according to Modelski,
Carter also stated that Union Shop Steward Clover
had called to get Modelski his job back and that Carter
would let Modelski know later that morning. Further
according to Modelski, at this point Union Committee-
man Zidzik came on the scene and asked Modelski
whether he wanted to continue working there; when
Modelski said he did, Zidzik remarked, "This is why
you need the union." Thereupon (still according to
Modelski), Modelski charged that there were "crooked
influences" at work since there was no apparent reason
for his having been fired;14 at this, Zidzik accused Model-
ski of being an "infiltrat[or]" and "like SDS" causing
"unrest," at which Modelski left. Modelski attempted
unsuccessfully to reach Carter later in the day, and
was finally told by Carter's assistant to look for another
job.
When Modelski picked up his paycheck on Friday
(June 13), and indicated to Foreman Wartella that the
Union was behind his discharge, Wartella remarked,
"You know you can'''t really buck the union." On the
way out, Modelski asked Shop Steward Clover if the
union public review board was available to him, but
Clover informed him it was inappropriate; 15 and Modelski
has been unsuccessful in attempting to reach the Union's
Regional Director, although he apparently did speak
to its Assistant Regional Director.
At no time during his brief employment with Chrysler
had Modelski received any'criticism from his Employer:
on the contrary, it had been indicated to him that his
production exceeded that expected or required.
Called as General Counsel's witness, Chrysler Labor
Relations Supervisor Sheehan testified that on June 10,
at a regularly scheduled meeting in his office with Local
Union President Herron and Shop Committee Chairman
Nation (and also Chief Steward Grecu, who did not
testify), Herron told Sheehan that Modelski was "doing
a lot of talking" and "creating a ruckus" about union
dues and the Government " Sheehan thereupon instruct-
ed his assistant, Burt Road plant Personnel Representa-
tive Carter, to "check out" Modelski. According to
Sheehan, Carter later confirmed that Modelski "had
done a lot of talking . during working hours
14 According to Zidzik, what Modelski said was that it was not
the Company but "some crooked Union officials" who had lost him
his job, and, when Zidzik took exception, Modelski "retract[ed]" the
remark .
11 According to Clover, he told Modelski the location of the union
review board as well as the union regional office, and Modelski said
he was going to the NLRB
i" Herron's version (supported by Union Shop Committee Chairman
Nation) of this conversation is that he merely indicated that Modelski
was questioning his obligation to pay the union initiation fee, and
that Herron asked Sheehan whether Modelski had signed a "check-
off," stating that if he had not the Company was in error to have
made the "check-off'' and Modelski had aright to complain According
to Herron, Sheehan then went out and returned stating Modelski had
signed the "check-off" authorization Herron and Nation flatly disputed
Sheehan's account as described above Upon the basis of comparative
testimonial demeanor observations crediting Sheehan, I accept Sheehan's
version
185
about the union dues-about the government . . .
when he should have been doing his assigned work,"
and that Carters had terminated Modelski-an action
in which Sheehan concurred (although he was empow-
ered to overrule Carter). Sheehan conceded at the hearing
that his Company has no rule against talking "as such,"
but that employees are, not supposed to allow talk to
interfere with work. It is admitted by Sheehan, as well
as by Carter and Foreman Wartella (both of whom
also testified), that there was no deficiency'in or dissatis-
faction with Modelski's work productivity. Although
Modelski, as a "probationary employee" of less than
90 days' standing, was subject to discharge at the
Employer's will, Sheehan conceded that he "would not
have been discharged except for these complaints
. . by the union officials" about "a lot of talking."
And Sheehan was unable to recall a single other instance
during the past 10-year period of his incumbency as
labor relations supervisor over the Employer's 750
employees (currently) in the division including the Burt
Road plant, in which the Union had complained to
the Company about an employee's "talking." Union
Shop Committee Chairman Nation was unable at the
hearing to suggest any reason why, following the
described union meeting with Sheehan on June 10, Shee-
han instructed Carter to investigate Modelski. At a meet-
ing a few days after Modelski was discharged, between
Herron and Nation and Sheehan on June 13, Sheehan
(according to Herron and Nation) stated he was not
going to put Modelski back to work and "didn't give
a reason," stating only that Modelski was just "not
suitable for this type of work," and the matter was
not pursued further because Sheehan "had to go some
place," but Herron concedes he never brought the matter
up again. 17
The testimony of Chrysler Foreman Wartella (also
called by General Counsel), who impressed me as a
highly credible witness, indicates that Wartella, who
was Modelski's only immediate supervisor, had no signi-
ficant cause for complaint about Modelski's performance
as an employee."' Wartella swore that Modelski met
Chrysler's production standards and that he had never
had any occasion to make an adverse recommendation
Herron also conceded that the Union at no time processed any
grievance with the Company concerning Modelski's discharge, even
though the Union "did not accept [the Employer ' s] reason " for his
termination and even though it regarded Modelski as a Union member
No finding is here made or implication intended that the Union was
or was not under technical legal obligation to do so under the circum-
stances , either under or aliunde the subsisting collective agreement,
section 58 (b) of which seems to require the Union to "represent proba-
tionary [i e , less than 90-day] employees who have been ' discharged
[even though employed for less than 31 days] ' in case the
discharge is for discrimination for Union activities " (G C Exh
13,p 57)
" To be sure , Wartella had had occasion to tell Modelski-as well
as other employees-to "break up " conversations There is no indication
who started these conversations , how long they lasted, what they were
about, that they in any way interfered with production or plant operations
or routines , or that they were ever in any way regarded or treated
as significantly objectionable or as 'justifying even the mildest censure
or reproof Wartella conceded that he had not reported this to any
superior , and that he had not even himself so much as contemplated
any adverse action by reason thereof
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning Modelski. Wartella testified that Modelski
was the one and only case of an employee serving
under Wartella who was discharged without a recommen-
dation to that effect from Wartella; and that-thus
uniquely in the case of Modelski-Wartella's superior,
General Foreman Dudzinski, instructed Wartella to use
the expression "not suitable" on Modelski's discharge
form, oecause Dudzinski in turn had received instruc-
tions from the personnel office to place that on Model-
ski's discharge form.
Chrysler's Burt Road plant personnel representative,
Carter (Chrysler's labor relations supervisor, Sheehan's,
subordinate), likewise called by General Counsel, tes-
tified that at the direction of Sheehan on June 10 to
"check out" Modelski who had been reported (according
to Carter, Sheehan did not disclose by whom) to be
"causing a little disturbance," Carter talked to four
or five of Modelski's fellow employees,'s as well as
to Modelski's Foreman Wartella, who expressed no
dissatisfaction with Modelski's performance.20 Accord-
ing to Carter, the "employees" (he wigs allegedly unable
to identify specifically who) told him that Modelski
had engaged in discussions in which he expressed his
dislike of having the Company deduct union dues, and
also touching on national politics. In all, according to
Carter, his investigation' consisting of these conversations
with the foregoing six individuals, totalled about one-
half hour. He did not speak to, nor was he able to
account for, his not having spoken to, Modelski; he
concedes he saw nothing adverse in Modelski's personnel
file.. Thereupon. Carter-according to his testimony-
discharged Modelski. Carter took no notes and rendered
no report on Modelski. Carter conceded that but for
Sheehan's direction to him to "check out" Modelski's
"talking,", he (Carter) would _ not have looked into or
taken any action on it.-Finally, according to Carter,
at no time prior to Model'ski"s'discharge did he discuss
Modelski with an union representative, although he was
aware of the Wartella abrasive situation between the
Union and Modelski.21 And, like Forman Wartella, Carter
also was unable to recall a single other instance of
an employee whose work productivity was satisfactory
11 Carter was able to identify only two of these, and those only
as "Luke" and "Reynolds," Neither testified It is conceded that
"Reynolds" has acted as alternate union committeeman of Respondent
Union
10 According to Carter, he also'spoke to General Foreman Dudzinski
(Foreman Wartella's superior), but the nature of his conversation with
Dudzinski is undisclosed There is no reason to believe Dudzinski
was in possession of any facts adverse to Modelski, since Wartella
had reported none and there is an absence of evidence that anybody
else had or that any had otherwise come to the attention of Dudzinski,
who did not testify.
21 Although Carter testified that Shop Steward Clover (as well, possi-
bly, in effect, as Zidzik) asked him to consider reinstating Modelski,
it is to be noted that in any event-whether or not genuinely intentioned
-this would have been after'Modelski had already suffered the discharge
which is here complained of as unlawfully brought about; and that,
as shown above, Local Union President Herron according to his own
testimony did not pursue the matter with Sheehan, nor in fact was
Modelski at any time reinstated or offered reinstatement Carter swore
in a pretrial affidavit to the Board's agent that on June 12 he "discussed
the possibility of reinstating Modelski with Sheehan [and] recom-
mended that Modelski be reinstated "
but whose employment was terminated for allegedly
excess talking.
On June 12 (Thursday), the day after Modelski was
fired, Union Committeeman Zidzik (Shop Steward Clo-
ver's superior in the Local Union hierarchy) told employ-
ee Janice (another temporary summer student employee,
who impressed me as an essentially truthful witness),
"Your friend's had it. He's all through here," adding
that he (Zidzik) had told Janice that he (Zidzik) resented
Modelski's having called him, as well as the Union,
"crooked." In' similar vein, Janice also testified that
on the next day (Friday, June 13) Zidzik further com-
mented to him, in the cafeteria during lunch, that "We
had to let your friend [11,fodelski] go" or "We had
to have the company let your friend [Modelski] go.
He was a troublemaker" who "couldn't work with any-
body else."22 Finally, Janice also credibly testified that
about a week or two after Modelski's discharge, Shop
Steward Clover passed the remarks23 to him that Model-
ski had been "rattling up the people against the union"
and that it was "Too bad about your friend. That's
what he gets for causing trouble."
C. Rationale and'Ultimate Findings
Modelski, an undergraduate'college student displaying
sophistication in wordly affairs, sought and obtained
temporary summer employment at the Chrysler Burt
Road, Detroit, factory, after knowingly and voluntarily
signing a union initiation fee and dues "check-off"
authorization lawfully called for under a subsisting col-
lective agreement (the validity of which is not challenged)
between Chrysler and Respondent Union. If Modelski
had not thus, executed- that' "check-off" alothorir.ation,
he would, under the lawful provisions of the subsisting
collective agreemen"t;_have had 40 days from the incep-
tion of his employment to join the Union. Obviously,
however, Modelski was under no obligation to wait
those or any part of those 40 days; by knowingly and
voluntarily executing the "check-off" authorization, he
elected not to wait.
The foregoing is,, however, in a sense beside the
point insofar as the issue here is concerned. For reasons
perhaps best known to Modelski, seemingly connected
with his understanding or misunderstanding or imperfect
understanding of a magazine item, he became disaffected
with or unhappy over Chrysler's lawful and proper
deduction of union fees from his pay pursuant to the
"check-off" authorization which he had signed. Modelski
translated his reaction into words of protest to the
Union's officials, who were stung by and resentful at
his expressed dissatisfaction over the operation of the
"check-off" system, and who, in consequence thereof,
I find, threatened and reported him to Chrysler's ranking
labor relations official (Sheehan) with the intent, purpose,
and effect of bringing about Modelski's discharge on
22 As has already been indicated , I was favorably impressed by
Janice and would have difficulty in accepting the foregoing as sheer
fabrication , as implied by Zidzik's denials that any of it ever took
place
22 Credited by me although disputed by Clover, now a union employee
LOCAL 227, AUTOMOBILE WORKERS
June 11, as alleged in the complaint. The testimony
of Chrysler officials clearly establishes that the Company
at no time entertained dissatisfaction with Modelski's
work, and that had it not been for the Union's complaint
about his Union-and-check-off-related "talking" and
"creating a ruckus" on those subjects, he would not
have been discharged. I find that it was the Union's
complaining reports to the Employer about Modelski's
"doing a lot of talking"' and "creating a ruckus" about
the union-fees "check-off" practices, and those reports
alone, which caused Modelski's discharge. An employee,
whether or not a member of a union, has the right
to voice dissatisfication about unionism in general or
about a particular union and' the conduct' of its affairs,
without suffering reprisal in the shape of being ousted
f'rom' his job because he opened his mouth. If, as was
not the case here, he engages in conduct intolerably
hostile to union interests and good order or inconsistent
with rational maintenance of union discipline, there are
remedies lawfully available to the aggrieved union. In
the circumstances presented, it cannot be said that the
Union was merely "prescrib[ing] its own rule's with
respect to the acquisition or retention of membership"
so as to fall within the protection of the proviso to
Section 8(b)(1)(A) of the Act.
As already indicated, the fact that Modelski may
have been or was in error regardingflthe nature of the
legal obligation flowing from his having freely executed
the "check-off" authorization, is quite beside the point.
Even if, or though, he was in total error on that subject,
his right to express his disagreement or disaffection
over the operation of the "check-off" system, in general
or in particular, and the Union's actual or supposed
role therin, is guaranted by Section 7 of the Act; accord-
ingly, the exercise of that right is invulnerable to reprisal.
Modelski had discussed this matter and his views con-
cerning it with his fellow employee Janice, in concert
with whom he proceeded to visit Union Shop Steward
Clover to question and protest the same. This was,
and his ensuing actions in the matter remained, protected,
concerted activity which he had the right to pursue
under the Act, free from interference, restraint, or coer-
cion on the part of the Union so as to cause his Employer
to discharge him.
At the hearing, Respondent conceded that it does
not contend that just because Modelski signed the
"check-off" authorization, even assuming Modelski is
bound by it, that Modelski had "no right to discuss
these matters in the way he testified he did or to complain
about it or to be dissatisfied about it." Upon the record
presented '21 I find that Modelski was indeed discharged
because, and only because, he discussed, was dissatisfied
with, and spoke up and complained about, the "check-
off" authorization system and its operation; and that
his discharge for that reason, as alleged in the complaint,
was directly brought about and caused by Respondent.'-'
24 General Counsel's motion, made and granted at the conclusion
of the entire case, to conform pleadings to proof, was unopposed
xa Respondent urges that General Counsel has failed to establish
a case, in the absence of proof that Respondent made a direct demand
upon the Employer to "discharge" Modelski, and that at most what
187
The Union's reporting of Modelski to Sheehan, under
the circumstances shown, was cleat ly for the purpose
of inducing and causing Modelski's Employer to take
effective inhibitory action against Modelski, and not
for commendation, approbation, or encouragement pur-
poses. If perchance the Employer took stronger discipli-
nary measures than the Union anticipated, nevertheless
the Union, having set the disciplinary instrumentality
into force, should be chargeable with the consequences,
which cannot be regarded as not reasonably foreseeable.
In this situation, it is the wrongdoer-the Union,-
and not the wronged-the employee,-who should shoul-
der the consequences.
Upon the foregoing findings and the entire record,
I state the following:
CONCLUSIONS OF LAW
1. Local 227, International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers
of America (UAW), Respondent herein, at all times
material herein has been and is a labor organization
within the meaning of Section 2(5) of the Act.
2. Chrysler Corporation at all times material herein
has been and is an employer engaged in commerce
within the meaning of, Section 2(2), (6), and (7) of
the Act.
3. Assertion of jurisdication in this proceeding is prop-
er.
4. By threatening Michael J. Modelski with discharge
and by attempting to cause and causing Chrysler Corpo-
ration'to discriminate against employees and prospective
employees in regard to hire or tenure of employment,
or other terms or conditions of employment, through
causing said Employer to discharge ,Michael J. Modelski
from its employ on June 11, 1969, and thereafter to
exclude him from its employ, Respondent has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing, employees in the exercise
of rights guaranteed by section 7 of the Act, and, has
thereby engaged in and is engaging in unfair. labor prac-
tices within the meaning of the "check-off" Section
8(b)(1)(A) of the Act.
5. By stating to' an employee that another employee
(viz, Michael J. Modelski) had been discharged from
his employment with Chrysler Corporation because he
had expressed dissatisfaction with Respondent's opera-
was established was that the Union merely reported certain facts about
Modelski to the Employer, who thereupon exercised its own unfettered
independent judgment in discharging him I cannot agree Unless there
is supporting documentation-a rare phenomenon-proof of an in haec
verba discharge demand by a union on an employer concerning an
offending employee, is in the, nature of things unavailable without
confession or evidence from a participant or eavesdropper Fair inferenc-
es may nonetheless be drawn from a congeries of circumstances, particu-
larly when consistent with probabilities, not otherwise credibly explained,
in the light of the Board's accumulated industrial relations experience
and expertise Furthermore, proof at least sufficient to support the
inference here is supplied by the postdischarge admissions of' both
Union Steward Clover and Union Committeeman Zidzik to the effect
that it was at the Union's hands that Modelski had lost his job because
of his temerity in questioning the checkoff system and-verbally tangling
with the union officials
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions in connection with the "check-off" system for
payment of union fees, Respondent has interfered with,
restrained, and coerced, and is interfering with, restrain-
ing, and coercing, employees in the exercise of rights
guaranteed by Section 7 of the Act, and has thereby
engaged and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act
6 By causing Chrysler Corporation to discriminate
against Michael J Modelski in the hire and tenure of
his employment, or terms and conditions of his employ
ment, through discharging Modelski from its employ
on June Ii, 1969, and thereafter excluding him from
its employ, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(b)(2) of the Act
7 The aforesaid unfair labor practices and each of
them affect commerce within the meaning of Section
2(6) and(7) of the Act
REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be required
to cease and desist therefrom and take certain affirmative
actions designed to effectuate the policies of the Act
I shall recommend that Respondent be required to notify
Modelski and Chrysler Corporation, in writing, that
Respondent has no objection to Modelski's employment
by Chrysler Corporation, and that Respondent requests
Chrysler Corporation to expunge from its records any
reference to Modelski's discharge on June 11, 1969,
as a "not suitable" or otherwise undesirable employee
I shall further recommend that Respondent be required
to make Modelski whole for any loss of pay he may
have suffered by reason of Respondent's unlawful con-
duct, by payment to him of a sum of money equal
to that which he would normally have earned as wages
from Chrysler Corporation but for his discharge at
Respondent's hands, less his net earnings and less any
offsets (including union dues and fees) which may be
due to the Union during or in relation to said period,
with interest on all of the foregoing, computed in
accordance with F W Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co 138 NLRB 716
Respondent should also be required to make Modelski
whole fpr any loss of rights and incidents of his employ
ment relationship with Chrysler Corporation which he
may have suffered by reason of Respondent's unlawful
conduct Pen and Pencil Workers Union, Local 19593,
AFL (Parker Pen Company), 91 NLRB 883 Respondent
should further be required to make available such records
for the computation of the foregoing amounts as may
be in its possession or control
I shall also recommend that Respondent be required
to post an appropriate notice which may also be posted
by Chrysler Corporation if desired
Upon the foregoing findings and conclusions and upon
the entire record, and pursuant to Section 10(c) of
the Act, I make the following
RECOMMENDED ORDER
Respondent, Local 227, International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW) and its officers agents,
and representatives shall
I Cease and desist from
(a) Causing or attempting to cause Chrysler Corpora-
tion to discriminate against any employee within the
meaning of Section 8(b)(1)(A) of the Act
(b) Causing or attempting to cause Chrysler Corpora
tion to discriminate against employees by discharging
an employee or, in any other manner, to discriminate
against employees, to encourage membership in, or activ-
ity on behalf of, the Union, in violation of Section
8(a)(3) of the Act
(c) Threatening any employee with discharge for
expressing his views or opinions concerning the "check-
off" system for payment of union fees or dues in the
Employer's plant, or concerning the conduct of Union
affairs
(d) Stating to any employee or prospective employee
of Chrysler Corporation that an employee of said
Employer was discharged from his employment because
he complained about or expressed dissatisfaction over
the method of operation of the "check-off" system
for payment of union fees or dues in the Employer's
plant
(e) In any like or related manner interfering with,
restraining, or coercing any employee of Chrysler Corpo-
ration in the exercise of any right guaranteed in Section
7 of the Act, except to the extent that any such right
may be affected by any lawful provision or agreement
requiring membership in a labor organization as a condi-
tion of employment in accordance with Section 8(a)(3)
of the Act
2 Take the following affirmative actions which are
necessary to effectuate the policies of the Act
(a) Forthwith notify Michael J Modelski and Chrysler
Corporation, in writing, that Respondent has no objection
to the employment of Modelski by Chrysler Corporation,
and does not oppose his reinstatement, reemployment,
or the restoration of his seniority, if any, and all other
i fights and privileges, if any, to the extent they may
have existed on June 11, 1969 (the date of his discharge)
(b) Forthwith request Chrysler Corporation to
expunge from its records any and all references to
its discharge of Michael J Modelski on June 11, 1969,
as a "not suitable" or otherwise undesirable employee
(c) Make whole Michael J Modelski for any loss
Suffered as a result of the discrimination against him,
in accordance with and in the manner set forth in
the section of this Decision entitled "The Remedy"
of which this Recommended Order or Order forms a
part
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all such records, reports, and documents as may be
in its possession, custody, or control, necessary or
appropriate, to analyze the amount of backpay and
LOCAL 227, AUTOMOBILE WORKERS
other sums or accruals due or which may otherwise
be involved under the terms of this Decision
(e) Post at Respondent's business offices and meeting
places, copies of the attached notice marked "Appen-
dix "26 Copies of said notice, on forms provided by
the Regional Director for Region 7, shall be duly signed
and posted immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter in conspic-
uous places, including all places where notices to mem-
bers are customarily posted Reasonable steps shall be
taken to insure that such notices are not altered, defaced,
or covered by any other material
(f) Return to the Regional Director for Region 7,
for posting by Chrysler Corporation, if willing, copies
of the notice signed as aforesaid
(g) Notify the Regional Director for Region 7, in
writing, within 20 days from receipt of this Decision,
what steps have been taken to comply therewith 27
26 In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein shall as provided in Section 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
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 be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
" In the event that this Recommended Order be adopted by the
Board this provision shall be modified to read Notify said Regional
Director in writing within 10 days from the date of this Order what
steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity
to present evidence and arguments, the National Labor
Relations Board has decided that this Union has violated
the National Labor Relations Act by causing Michael
J Modelski to be discharged by Chrysler Corporation
from his job at the Chrysler Burt Road Plant in Detroit,
on June 11, 1969, because he complained about the
operation of the union-fees check off system We have
been ordered to post this notice
WE WILL NOT cause or attempt to cause Chrysler
Corporation to discharge or otherwise discriminate
against any employee or prospective employee
189,
because he complains or expresses dissatisfaction
about the union-fees check off system
WE WILL NOT threaten any employee with dis-
charge for expressing his views or opinions about
the check off system or the conduct of union affairs
WE WILL NOT state to any employee or prospec-
tive employee that a Chrysler employee was fired
because he complained or expressed dissatisfaction
about the union fees check-off system
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce any employee
of Chrysler Corporation in the exercise of any
right guaranteed in Section 7 of the National Labor
Relations Act as amended This leaves unaffected
the obligations of any employee or prospective
employee under any lawful union shop provision
of any collective agreement between this Union
and Chrysler Corporation
WE WILL notify Michael J Modelski and Chrysler
Corporation that this Union has no objection to
the employment, reinstatement, or reemployment
of Modelski by Chrysler Corporation, and WE WILL
request Chrysler Corporation to remove from its
records all references to Modelski as having been
discharged on June 11, 1969, as a "not suitable"
or otherwise undesirable employee
WE WILL make Michael J Modelski whole for
any loss of earnings and other employment accruals
if any (minus union dues and fees) suffered by
reason of the discrimination against him when and
since he was discharged by Chrysler Corporation
on June 11, 1969
Dated By
LOCAL 227,
INTERNATIONAL UNION,
UNITED AUTOMOBILE,
AEROSPACE AND
AGRICULTURAL
IMPLEMENT WORKERS OF
AMERICA (UAW)
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boulevard,
Detroit, Michigan 48226, Telephone 313-226-3200