Chrysler Corp.

National Labor Relations Board - Board Decisions

Dec 29, 1978

239 N.L.R.B. 1108 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, Local 122 (Chrysler
Corporation) and George Vinson, Jr. Case 8-CB-
3577
December 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On September 11, 1978, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i Counsel for the General Counsel has excepted to certain credihility find-
ings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an Administrative Law Judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his find-
ings.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI. Administrative Law Judge: The
complaint in this case was issued on December 29, 1977,
alleging that Respondent violated Section 8(b)(I)(A) and
(2) of the Act by threatening and attempting to cause the
discharge of employee George Vinson, Jr., and by improp-
erly representing him in the grievance proceeding Respon-
dent initiated to protest the discharge of Vinson by Chrys-
ler Corporation for assaulting a female canteen worker.
Vinson was eventually reinstated with full seniority, but
without backpay. Respondent denied the substantive alle-
gations in the complaint.
After 2 days of hearing, the General Counsel rested and
Respondent filed a motion to dismiss. I continued the
hearing to consider the motion as well as written memoran-
da submitted by the parties.
Based on the record, including my observation of the
testimony and demeanor of the witnesses, and the memo-
randa of the parties, I make the following:
FINDINGS OF FACT
I THE BUSINESS ORGANIZATION
Chrysler Corporation (referred to herein as Chrysler or
the Company) is a Michigan corporation with its principal
office and place of business located at Highland Park,
Michigan. It is engaged in the manufacture of automobiles
throughout the United States including the State of Ohio
where it operates its Twinsburg Stamping Plant in Twins-
burg, Ohio. At the Twinsburg plant, which is involved
herein, Chrysler manufactures automobile parts. Annually,
in the course of its operations, Chrysler receives goods val-
ued in excess of $50,000 at its Twinsburg plant directly
from points outside Ohio. Accordingly, Chrysler is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
Respondent, which represents the employees at
Chrysler's Twinsburg, Ohio, plant, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR tABOR PRACTICEs
A. Background
Employee Vinson, the Charging Party, was employed at
Chrysler's Twinsburg plant for about 12 years, 4 years of
which were spent in Department 9760. He has been a
member of Respondent for 13 years. Also since 1974, he
was a member of an organization of Chrysler employees
called the Concerned Workers. This group published a sin-
gle newsletter or newspaper in 1975, apparently to protest
working conditions and to influence Respondent's repre-
sentation of employees. In addition, in April 1977, the
Concerned Workers ran a slate of candidates for delegates
to the convention of Respondent's international union
which was to be held in Los Angeles, California in May
1977. The election was held on April 6 and 7, 1977, and
was conducted by an independent firm of certified public
accountants. Vinson was one of five candidates on the
Concerned Workers' slate which lost the election. The
members who were selected as delegates were comprised of
officers and stewards of Respondent.
The losing candidates challenged this election by tele-
gram sent to the International which responded by inform-
ing the group of the proper means of protesting the election
directly to International President Leonard Woodcock. A
1108
UAW. LOCAL 122
letter was sent to Woodcock but returned without being
opened or delivered. At the April membership meeting of
Respondent, the challenge was read to the membership
and, by a show of hands, the members voted to reject the
election results. It appears that, if such a rejection takes
place at the local level, the protest or challenge must be
resolved by the Credentials Committee of the Internation-
al. After an investigation, the Credentials Committee of the
International denied the protest on May 9, 1977. Respon-
dent's president's report of May 12 announced the ruling
of the Credentials Committee to the membership.
There is no evidence of animus, hostility, or retaliation
by Respondent against Vinson or any of the other mem-
bers of the losing slate as a result of their participation in
the election or their subsequent challenge of the results.
Indeed, in Vinson's affidavit given to the Board in support
of his charge of violation in this case, there was no mention
at all of the facts recited above dealing with the Concerned
Workers and the election.
B. Vinson's Discharge
Vinson was absent from work from the beginning of
May through June 12, 1977, apparently because of the flu.
On June 14, his second day back on the job, Vinson was
involved in an altercation with a female employee of the
Canteen Corporation, a firm which provides food services
at the Twinsburg plant for Chrysler employees. Several em-
ployees testified about the incident and, although the ver-
sions differ somewhat, the following is a fair summary of
what happened: Vinson, who was working in department
9760, went to the break area for department 9740 some 10
or 15 minutes before 9:00 in the morning. He came into the
break area and noticed a line of people waiting to obtain
food from the canteen employee, Donata Evans, who was
operating from a food cart where she sold hot and cold
food. One person was arguing with her over the payment
for an item. Vinson went to the cart, took a package of
pancakes and told Evans he was going to take it to the
microwave oven elsewhere in the break area, heat the pan-
cakes, and return and pay her at that time. Evans did not
agree to this procedure. While Vinson was at the oven,
Evans approached him and berated him for taking the pan-
cakes in the manner he did. According to Vinson, she grab-
bed the pancakes out of the oven and he "reached" for the
package and "grabbed" it. There was a scuffle and the
package broke and pancakes and syrup spilled on both
Evans and Vinson. At about this point, Josephus Lanier,
Evans' boyfriend and Respondent's chief steward for de-
partment 9740, came upon the scene. Lanier and Vinson
proceeded to have an argument about the incident which
lasted about 5 to 10 minutes. According to Vinson, Lanier
"told me like he was going to see I got fired and a whole lot
of side talk." Vinson continued as follows:
I said, "Look here, man. I am working in 7460." ' 1
gave him the location of my job. I said, "If you want
to take it from the top, I will talk with you about it
This appears to be an error in the transcript. Vinson was working in
department 9760.
now and be late, come whatever consequences was for
me to return to my job. I would do that to straighten
this up right here." And he wasn't interested in it, you
know.
So I had to leave. I had to get back to my work area,
to go to my work area.
After Vinson left, according to employee Ralph Dix, La-
nier urged Evans to report the incident to her superior and
said "he was going out of here."
The incident was reported to Evans' superior and
through him to the Chrysler chief of plant protection who
in turn reported the matter to Chrysler's labor relations
supervisor, Roy Worley. Worley was called as a witness by
the General Counsel and he testified in a straightforward,
honest, and candid manner. I credit his testimony in its
entirety.
Worley received a report that a Chrysler employee had
assaulted an employee of the Canteen Corporation. He
called the cafeteria manager who brought Evans to
Worley's office about 10 a.m. Worley interviewed Evans in
his office. She told Worley that she was assaulted and that
she could identify the employee. She said she had passed
him in department 9760 and pointed him out to her superi-
or on their way to Worlev's office. The employee was Vin-
son. She also said that the employee failed to pay for the
pancakes and when she went to get them he grabbed her
and threw the pancakes on her. Worley directed that a
statement be written up for Evans' signature and this was
done. As he was talking to Evans, Worley noticed that
Evans had pancakes on her clothes and her hair and her
smock or jacket had been "twisted" or "wrinked" around
the throat area "like somebody had grabbed it and twisted
it there." Worley or the chief of protection retained the
smock for some period of time. According to Worley, Ev-
ans' condition and that of her smock supported her story.
Since someone also told Worley that Lanier was a wit-
ness to the incident, Worley called Lanier to his office.
Lanier came to the office with Ernie Wiggins, Respon-
dent's committeeman, who was Lanier's superior in the hi-
erarchy of Respondent. Worley asked Lanier who the em-
ployee was who was involved in the incident and Lanier
apparently identified Vinson. Wiggins interjected that the
whIole matter was a misunderstanding and that nothing
happened. Lanier then denied this and said that Vinson
had attacked Evans, had her by the throat, threw pancakes
all over her, and that he had to pull Vinson off her. He also
said "this kind of shit has got to stop." Worley made a
record of this conversation. This was the only conversation
Worley had with Lanier about the Vinson incident and
Lanier made no mention of discharging Vinson. Neither
Wiggins nor Lanier were responsible for the representation
of Vinson.
Later, shortly after 10:30 a.m., Worley called Vinson
into his office. He was accompanied and represented by
Arthur Young who was Vinson's committeeman. Vinson
denied he had assaulted anyone and gave his version of the
incident.
While Lanier and Wiggins were on their way to Worley's
office, they encountered Vinson at his work station. The
testimony concerning what happened at this point is con-
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fusing and conflicting. Vinson testified that Wiggins asked
him to apoligize and he refused. He also testified that Wig-
gins told him he would have to apologize "because you are
going to have to leave the plant" and that Lanier said if he
did not apologize "you are going to leave this plant." Ac-
cording to Vinson, both men called him a "mother fucker,"
a term he also attributed to Lanier during the course of
their earlier argument. Vinson's affidavit does not state
that Lanier used these words. Wiggins testified that Lanier
said if Vinson would apologize he would forget the matter
and Lanier said nothing about Vinson being fired. Employ-
ee Darnell testified that he overheard part of the conversa-
tion and did overhear someone asking Vinson to apologize
and he refused. Based on my observation of the demeanor
of both Vinson and Wiggins, I credit the account of Wig-
gins. He was a candid and honest witness. Vinson's ac-
count of this conversation seemed to me to be exaggerated,
particularly his attempt to portray both Wiggins and Lani-
er as being angry, while he was calm. My observation of
Wiggins and Vinson on the witness stand leads me to be-
lieve the opposite. Wiggins exhibited a calm and rational
demeanor on the witness stand, and he did not seem like
the type of person who would have gotten angry or used
profanity in this situation, particularly since he was by all
accounts the person who was trying to resolve the matter
amicably. Vinson demonstrated a more volatile personality
on the witness stand and it seems more likely that he would
have expressed anger when asked to apologize. In my view,
much of Vinson's testimony magnified imagined sights by
officials of Respondent.
Significantly, his lifetime friend, Darnell did not corrob-
orate Vinson on the allegation that in this conversation
Lanier said he would have to leave the plant. In short, I do
not believe that, in this conversation, either Lanier or Wig-
gins threatened that Vinson would be discharged. But, al-
ternatively, even if they mentioned something about dis-
charge, I do not believe that they threatened that they, as
union representatives, would accomplish this, but rather
they gave their view that the Company would probably
discharge Vinson.
On the basis of the statements made to him and his ob-
servation of Evans, Worley suspended Vinson in accor-
dance with plant policy concerning incidents of violence
involving employees. He sent Vinson home pending a full
investigation. Three days later, on June 17, 1977, after fur-
ther consideration of the facts, Worley changed the suspen-
sion to a discharge. He made the decision after talking to
his boss because he believed "something happened out
there."
C. The Grievance Procedure
The very next day, June 18, Respondent filed a griev-
ance on behalf of Vinson under the applicable bargaining
agreement. It requested that Vinson be reinstated on the
basis of his 12 years of seniority and his otherwise good
work record. Thereafter, on June 25, there was a meeting
on the grievance which constituted step two of the griev-
ance procedure and Worley rejected it because, in his
words, "I felt that the discharge was proper."
During the pendency of the grievance, Vinson and his
friends prodded Respondent's officials on the progress of
the grievance. Vinson and two other witnesses testified
about meetings with Respondent's President, Robert
Weissman, concerning the Vinson grievance. Their testi-
mony is not lucid ard, at some critical points, is contradic-
tory. Vinson, who attended two of these meetings along
with employees Smith and Pearson, testified that he first
met with Weissman shortly after the grievance was filed.
According to Vinson, Weissman was pessimistic about his
chances of succeeding on the grievance and expressed
doubt that Vinson "would ever return to Chrysler." Smith
testified that Weissman said he doubted that Vinson could
get his job back. Vinson also testified that he asked Weiss-
man to personally handle his grievance and that Weissman
refused. Pearson, however, testified that Weissman said he
could not represent Vinson at its present level in the griev-
ance procedure, but that he would when the grievance
reached his level of participation. Pearson's version is con-
firmed by Worley's testimony that Weissman did not rep-
resent grievants at step two of the grievance procedure, but
did so at the step-three level.
All three witnesses testified that Weissman called Vinson
a "troublemaker" or a "loudmouth" or stated Vinson was
not liked. On cross-examination, Smith conceded that
Weissman was referred to the Company's view of Vinson.
This seems to be confirmed by Vinson's own rambling tes-
timony where he recited numerous attempts to seek news
on the progress of his grievance from Respondent's offi-
cials. According to Vinson, they would say:
"Well, it's being worked on." Red would say like, the
Company won't act on it, Junior, you always have to
wait for Michael Lewis (apparently a company offi-
cial) to get in town.
He would tell me the Company don't want you. You
are trouble. We are doing all we can.
Employee Taylor, who submitted a statement on Vinson's
behalf, expressed the opinion that the Company did not
like Vinson, and Worley testified that Vinson had had al-
tercations with other employees. From the above, it is like-
ly that Weissman's remarks meant to describe how the
Company viewed Vinson.
According to Vinson, after the "troublemaker" remarks
discussed above, Weissman asked him for the names of
potential witnesses to the Evans incident so that Respon-
dent could utilize them in defense of Vinson's position.
Weissman obtained statements from three employees. Two
of the statements, dated June 21, were from employees
Taylor and Lane who viewed the incident. The third was
from employee Dix who was not on the scene when the
incident took place. Lane's statement said that Vinson
"grabbed [Evans] by the arm." Taylor said that Vinson
"snatched at the pancakes." The statements of Lane and
Taylor, while not entirely supporting Evans' version, do
not completely exculpate Vinson.
Employee Smith testified about a third meeting he had
with Weissman which Vinson did not attend. Smith asked
about the progress of the union grievance and, according
to Smith, Weissman again said that Vinson was a "trouble-
maker," a "loudmouth" and "not liked." Smith said that
1110
UAW, LOCAL 122
this third meeting took place about 3 weeks after the dis-
charge.
Sometime in August, according to Vinson, he attended a
union meeting and met Donata Evans and Lanier in the
parking lot. Evans and Lanier expressed their apologies.
Vinson testified cryptically as follows:
Q. Did you ever ask her for anything, then?
A. Yes. I asked Miss Evans at that August union
meeting that I had received copies of the statement
which she had written then, and I wasn't in confidence
that they were her statements. I went back and asked
her to sign the copy that I had to verify the fact with
myself that this was the lady because I hadn't remem-
bered the woman myself, really, until she was pointed
out in the Union Hall to me.
Q. So your testimony is that neither you nor your
wife approached her and asked her to do anything to
help you get back?
A. Never.2
Vinson also testified, albeit grudgingly, that at his unem-
ployment hearing in August 1977 Weissman appeared on
his behalf. He also testified that at this time Weissman still
expressed pessimism about his returning to his job. There is
also evidence that sometime in August the Concerned
Workers put out a leaflet protesting that Respondent was
responsible for getting Vinson fired.
Respondent took the grievance to step three. Pursuant to
the normal time span between steps, the step-three meeting
did not take place until August 26. At that point, Respon-
dent presented three statements in support of the griev-
ance. There were the two statements of Taylor and Lane
and there was a statement from Evans essentially recanting
her earlier statement saying that she really could not identi-
fy the employee. This statement which was dated July 15
was admitted into evidence through Worley who testified
he received it from Respondent on August 26. Respon-
dent's representatives had earlier alerted Worley that they
had these statements. At the August 26 meeting, they took
the position that management was wrong on the merits and
that the new statements indicated that Chrysler had no
witnesses and that the Employer should "immediately put
Mr. Vinson to work." Respondent also requested a special
expedited arbitration under the contract. Vinson testified
that he did not want his case to go to instant arbitration.
On August 31, 1977, Worley denied the grievance be-
cause he still believed the incident had happened as he had
earlier concluded. He did not place a "great deal" of reli-
ance on Evans' second statement because it came so late
and because he had observed and talked to her at the time
of the incident. Worley also refused to agree to an expedit-
ed arbitration, as was management's right under the con-
tract, because the matter involved violence. This essentially
ended Respondent's role in the handling of the grievance
at the local level. The next step was either through a re-
2 It is unclear whether Vinson was referring to Evans' first statement giv-
en to Chrysler officials in June 1977 or to a second statement which was
presented to Worley on August 26 and discussed infra If the reference is to
the latter it is likely that it came into the hands of Respondent in August
thus undercutting General Counsel's argument that Respondent delayed in
getting the second statement to Compan) officials.
gional review process or an appeal board which brings the
matter into the jurisdiction of the International and corpo-
rate officials of Chrysler under the national collective-bar-
gaining agreement.
Thereafter, Respondent through its president, Robert
Weissman, and Vinson's committeeman, Young, made an-
other appeal to Worley to reinstate Vinson. As a result,
Worley reconsidered the matter and decided to reinstate
Vinson. This apparently occurred sometime during the first
week in September Worley's testimony is as follows:
Q. And why, since you had denied the grievance on
August 31st, did you, in effect, reinstate Mr. Vinson
subsequently?
A. Based on the Union's request that I take another
look at it. They had pursued the case quite diligently.
The)y had several recommendations, you know, that
I bring the guy back to work. I took a look at it and
said that if Mr. Vinson could agree to this, I am agree-
able to change the discharge to disciplinary layoff.
That is not unusual in our business.
Q. Agree to this? What do you mean by that?
A. If he would agree that he can behave himself
and he can agree to that type of reinstatement
Q. Without backpay?
A. I would change the discharge to disciplinary lay-
off without back pay.
Worley then called Vinson into his office and explained
the reinstatement to Vinson as did Respondent's represen-
tatives. Vinson agreed to the reinstatement with full senior-
ity but without backpay because he wanted to go back to
work and did not want to press the matter further. Vinson
considered the possibility of taking the matter to arbitra-
tion with Respondent's representatives, but decided against
this course because of the delay and the risk of loss. Vinson
testified as follows:
Q. Did you ever tell the Union that you wanted to
be resolved at the plant level?
A. Yes. I had requested that my problem or what-
ever problem he had-getting back on the job being
that I was accused from this thing to try and settle it
right there, because I wanted the quickest way of get-
ting back to my job as I possibly could.
Q. But you did have the opportunity, did you not,
of letting the matter go forward to arbitration?
A. Yes, but the decision was mine. It wasn't up to
the grievance procedure. It is upon the discharged in-
dividual.
In addition to the formal grievance procedure, Respon-
dent made frequent informal efforts to obtain Vinson's full
reinstatement with backpay throughout the summer. Re-
spondent also recruited members of supervision to make
favorable recommendations to Worley. Worley testified
that the Respondent handled the grievance "diligently"
and that he resisted both reinstatement and backpay until
the final settlement of the grievance because he believed
the discharge was proper.
III]
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. DIS(tCUSSION AN[) ANAt YSIS
In considering the Respondent's motion to dismiss at the
end of the General Counsel's case. I am guided by Rule
41(b) of the Federal Rules of Civil Procedure which are to
be applied to Board procedures "so far as practicable."
Section 10(b) of the Act. The rule provides:
After the plaintiff, in an action tried by the court with-
out a jury, has completed the presentation of his evi-
dence, the defendant, without waiving his right to of-
fer evidence, may move for a dismissal on the ground
that upon the facts and the law the plaintiff has shown
no right to relief. The court as trier of the facts may
then determine them and render judgement.
Under this rule, it is clear that the trier of facts may weigh
conflicts in the evidence and credibility of witnesses to de-
termine the facts. There is no requirement, as in Rule 50,
F.R.C.P., concerning motions for a directed verdict in a
jury case, that the judge must construe the evidence in the
light most favorable to the party against whom the motion
is made. See M. D. Rutledge v. Electric Hose & Rubber
Company, 511 F.2d 668, 676 (9th Cir. 1975); Huber v.
American President Lines, 240 F.2d 778, 779 (2d Cir. 1957);
5 Moore's Federal Practice, section 41.13(3) and (4). See
also N.L.R.B. v. Walton Manufacturing Co., 369 U.S. 404,
408409 (1962).
As I have indicated, I found some conflicts in the testi-
mony of General Counsel's witnesses. Vinson was the least
credible of all the witnesses. However, even without resolv-
ing conflicts in testimony, I find and conclude that the
General Counsel has not established by a preponderance
of the evidence that Respondent violated the Act in accor-
dance with any of the three specific allegations of the com-
plaint. 3
A. The Threat that Respondent Would Cause Vinson's
Discharge for Unlawful Reasons
In his memorandum, the General Counsel alleges that
Lanier twice threatened to secure the discharge of Vinson.
The testimony he cites is Vinson's testimony that. in the
course of their argument after the Evans incident, Lanier
"told me like he was going to see I got fired and a whole lot
of side talk," and Dix' testimony that, out of Vinson's pres-
ence, Lanier said "he was going out of here." It would be
stretching the normal interpretation of language to con-
strue these remarks as a statement that Respondent would
cause Vinson's discharge. The more reasonable inference is
that Lanier heatedly pointed out that the Company would
fire Vinson for what Lanier thought was Vinson's assault
on Evans, a natural view since the Company usually took
this action in cases of violence and Evans clearly repre-
sented that she had been assaulted. This was simply a rec-
ognition by Lanier that Vinson had committed an offense
for which he could be discharged and it hardly amounts to
3 In order to overcome a motion to dismiss. the General Counsel must
satisfy his duty to establish a prima facie case by presenting evidence ,uffi-
cient to demonstrate the occurrence of an unfair labor pract.ice. See Avon
Convalescent Center, 204 NLRB 415 (1973).
a threat of union action to secure the discharge.
Even if Lanier's words could be construed to he a threat
that he would cause the discharge of Vinson, I find that
this was not a threat attributable to Respondent because it
was not made within: the scope of Lanier's authority as a
union agent. Lanier's authority as a union representa-
tive-a chief steward--did not extend to the department
where Vinson worked. In fact Vinson was represented by
another union official. There is no evidence that Lanier
had authority to actually secure Vinson's discharge or any
authority to represent Vinson or to affect his job. Indeed,
Vinson himself told Lanier that he was working in a differ-
ent department, thus indicating he knew Lanier had no
union authority over him. Furthermore, the evidence fairly
supports the inference that Lanier's statements were made
in the heat of argument over what was a personal dispute.
Lanier was upset at 'he altercation involving his girl friend,
Evans. In these circumstances, it is clear to me that Lanier
was speaking as an individual and not as a representative
of Respondent.
If there was any doubt as to whether Lanier spoke for
Respondent, it is resolved by the statement of Wiggins,
Lanier's superior in Respondent's hierarchy, to Chrysler
official Worley that the matter was a misunderstanding
and that the parties should resolve the matter themselves;
the fact that the discharge decision was actually made by
Worley, based on his own investigation and judgment; and
Respondent's continuous efforts after the discharge to ob-
tain Vinson's reinstatement. Lanier never participated in
the grievance procedure. Thus, Respondent never ratified
or acquiesced in Lanier's statements, but rather showed by
its consistent conduct subsequent to Lanier's statements
that it wanted Vinson to be reinstated. This completely
vitiates any official sanction the remarks may have caused
by virtue of their having been uttered by a union steward.
Accordingly, the General Counsel has failed to show a
violation of Section 8(b))(A) by virtue of Lanier's state-
ments on June 14. 4
B. The Alleged Attempt to Cause the Discharge of Vinson
for Unlawful Reasons
Worley's testimony establishes conclusively that he
made the decision to suspend and thereafter to discharge
Vinson on his own after talking to his superior and investi-
gating the Vinson-Evans altercation. He had talked to Ev-
ans, secured her statement, and observed her appearance,
including her wrinkled smock, which tended to support her
statement that she was assaulted. Worley called Lanier to
his office to identify Vinson as the assailant whom Evans
4 In his memorandum, the General Counsel does not rely on statements
allegedly made by Lanier and Wiggins that Vinson was going to be fired if
he did not apologize to Evans. I do not credit Vinson's testimony that these
statements were made as he testified (see supra). But even if they were, for
the reasons I have stated above, these statements were not violative of the
Ac. Although Wiggins' remark would have carried more union authonty
than that of Lanier, he simply told Vinson that if he did not apologize "you
are going to have to leave the plant." This hardly amounts to a threat that
he or Respondent would secure Vinson's discharge. Indeed. he was the
person who attempted to defuse the matter in Worley's office and his at-
tempt to get Vinson to apologize was a reasonable solution which might
have caused Evans to withdraw her complaint earlier had Vinson accepted
the suggestion.
1112
UAW, LOCAL 122
had already described and identified. According to Wor-
ley, he called Lanier as a witness to the events, not as a
union representative. Indeed, he was accompanied to
Worley's office by Wiggins, Lanier's superior in the hierar-
chy of Respondent, and the latter attempted to resolve the
matter informally. Lanier, impelled by the fact that Evans
was his girl friend, confirmed her story that Vinson was the
assailant and said "this shit has got to stop," obviously
referring to the fact that Evans had had problems with
employees not paying for their food in the break area.
Lanier's role as a witness and a defender of his girl friend
explains the remark which, in the circumstances, is not an
attempt to cause the discharge of Vinson. Indeed, he was
not discharged at this point, but only after a 3-day suspen-
sion which is the Company's normal practice in cases of
violence. Worley also testified that Lanier did not request
that he discharge Vinson. Lanier had no authority over
Vinson and his superior, Wiggins, in effect argued against
the discharge asserting that the matter was a simple misun-
derstanding. The General Counsel's bald assertion that La-
nier was summoned as a union agent with actual or appar-
ent authority to affect Vinson's job is completely without
merit and contrary to Worley's testimony and the inherent
probabilities of the conversation between Worley, Wiggins,
and Lanier. His further reliance on Lanier's remark, "this
kind of shit has got to stop," is unavailing. The remark falls
far short of a request for discharge. Worley did not inter-
pret it as such and he testified that Lanier did not request
that Vinson be fired. Any reasonable interpretation of the
remark would be that Lanier was offended by the mistreat-
ment of his girl friend and, as a witness and as an individ-
ual, he gave his rather strong opinion on the matter. Wor-
ley of course had his own opinion and acted on his own
assessment of the facts on which he made his decision.
Finally, the General Counsel's assertion that Lanier's re-
marks were false misses the mark. As matters stood at that
point, Lanier's remarks supported Evans and Worley's own
assessment of the situation after having observing Evans
and her appearance. Evans' subsequent recantation does
not establish that her first statement was wrong. It is just as
likely-perhaps more likely-that her second statement
was wrong and compelled by an effort to save Vinson's
job. Worley certainly placed more credibility in her first
statement-a reasonable view in all the circumstances.
In short, it is clear to me that Worley's decision to sus-
pend and thereafter discharge Vinson was based on his
independent analysis of the facts, the severity of the of-
fense, and in accordance with the suspension and dis-
charge policies of the Company in such cases. Respondent
did not cause or attempt to cause Vinson's discharge in
violation of the Act.
C. The Fair Representation Issue
The General Counsel makes several allegations in sup-
port of his contention that Respondent failed properly to
represent Vinson in the grievance it filed to get Vinson's
job back. None-either individually or together-consti-
tutes a failure of Respondent to adhere to its duty of fair
representation. It is well settled that a bargaining ageni has
a duty to represent employees fairly. in good faith, and
without discrimination based on arbitrary or invidious dis-
tinctions. Vaca v. Sipes, 386 U.S. 171 (1967); Miranda Fuel
Company, Inc., 140 NLRB 181 (1962). Its duty is not ful-
filled by mere "perfunctory" action, but the duty does al-
low for a wide range of reasonableness and the Board has
held that it is not breached by tactical considerations or
mere negligent action or nonaction. See General Truck
Drivers, Chauffeurs and Helpers Union, Local No. 692,
Teamsters (Great Western Unifreight System), 209 NLRB
446, 447-448 (1974); A. Bazarte v. United Transportation
Union, 429 F.2d 863, 872 (3d Cir. 1970). Nor does it require
that "every possible option be exercised or that a gnevant's
case be advocated in a perfect manner." Truck Drivers,
Helpers, Taxicab Drivers, Garage Employees and Airport
Employees Local Union No. 355, 229 NLRB 1319, 1321
(1977).
In the instant case, Respondent acted in a diligent and
responsible way in processing Vinson's grievance and se-
curing his reinstatement with full seniority. The settlement
of the grievance did not provide for backpay and this is
apparently what inspired Vinson's charge in this case. But
Respondent did not violate its duty of fair representation in
failing tosecure such backpay for Vinson. The evidence shows
that it continuously sought backpay, but, as is often the case-
and here with Vinson's full acceptance-it settled for less,
Vinson's reinstatement with full seniority. Worley's testi-
mony on this issue is conclusive. He testified that the matter
was handled diligently by Respondent, all time limits were
observed, and Respondent persisted in numerous informal
efforts to obtain relief for Vinson. Even after the third step
of the gievance, when Respondent could have referred the
matter to the International for further steps leading to arbitra-
tion, its officials, Weissman and Young, asked Worley for
reconsideration of the matter. Vinson himself testified that
he accepted the resolution of the grievance because he wanted
hisjob back quickly. He rejected instant arbitration and said
he did not wish the matter to go further to arbitration. As
he testified, "the decision was mine." In these circumstances,
it is inconceivable that Respondent could be found to have
failed to properly or fairly represent Vinson.
The General Counsel contends that Respondent did not
properly represent Vinson because it did not present the
Taylor and Lane statements at the June 25 grievance meet-
irng and did not present the second Evans' statement until
the August 26 grievance meeting. This contention is with-
out merit. The Taylor and Lane statements are dated June
21. They do not exculpate Vinson. They do tend to mini-
mize his culpability, but they contain statements which in-
dicate that Vinson "grabbed" Evans and "snatched" at the
pancakes. At this point, the Evans statement was still fresh
in the Company's files and, since Evans had apparently not
yet been contacted, Respondent's investigation was not
completed. Moreover, the statements were secured by
Weissman, who was not scheduled to represent Vinson at
the step 2 meeting of June 25; other union officials repre-
sented Vinson. At this step, Respondent took the position
that Vinson should be reinstated based on his good work
record and his seniority. As a tactical matter, it was not
unreasonable for Respondent to take this approach. Re-
spondent did not act in bad faith in not presenting the
second Evans statement until August 26. Some officials
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had mentioned to Worley prior to this date the existence of
such statements and had made numerous informal at-
tempts to secure reinstatement for Vinson. But the step-
three meeting was scheduled for August 26 and that was
the appropriate time for Respondent's presentation of Ev-
ans' statement, as well as the others, and to make an argu-
ment on the merits or at least to bring to the Company's
attention the fact that the first statement of its prime wit-
ness, Evans, was considerably weakened. The General
Counsel gains nothing by arguing that Evans' second state-
ment shows that both she and Lanier were lying when they
reported on the incident originally. As I have indicated, it
is just as likely that Evans was telling the truth in her first
statement. It was made immediately after the event rather
than later after reflection and possible concern over the
effects of a discharge on Vinson. And, as Worley testified,
it was supported by her appearance and the condition of
her wrinkled smock. Worley reasonably believed her first
account and discounted a recantation at least one month
after the event. He denied the grievance even after the Au-
gust 26 meeting because he believed "something hap-
pened" and he believed the discharge was proper. The
General Counsel seizes on Worley's testimony that Evans'
statement came "too late" to argue that Respondent pre-
sented it too late. This is a distorted view of the evidence.
Actually, the statement is dated July 15, but there is no
evidence as to when it was secured or when it came into
Respondent's hands. Evans was not called as a witness.5
Nevertheless, the time difference between July 15 and Au-
gust 26 does not show Respondent's misfeasance or bad
faith. The next scheduled step-three meeting was August
26, and Respondent made many informal efforts to obtain
relief for Vinson. Worley's testimony fairly shows that even
had he been presented with the Evans statement on July 15
he would have denied the grievance because it was a recan-
tation which he viewed with suspicion for that reason and
not because it was presented on August 26 rather than July
15. Finally, Vinson's own testimony shows that he was told
that the "Company won't act on [the grievance]" and that
Respondent had "to wait for Michael Lewis [a company
official] to get in town." This is hardly the stuff from which
an unreasonable and bad faith charge can be inferred, and
I reject any and all arguments that Respondent's presenta-
tion of statements on August 26 was an indication that it
unfairly represented Vinson.
The General Counsel also seems to argue that remarks
by Respondent that Vinson had little chance of being rein-
stated showed that Respondent did not fairly represent
Vinson. Surely before Evans' second statement things
looked bleak and Respondent cannot be faulted for a real-
istic appraisal of the situation. To the extent that Vinson's
testimony would indicate that these remarks continued as
late as August 1977, I1 reject them as part of Vinson's exag-
gerated testimony, his self-serving attempt to criticize Re-
spondent for anything it did or did not do with respect to
the grievance, and the fact that it is counter to what actual-
ly happened. In any event, even if Vinson's testimony on
5 Vinson's testimony can be read to infer that .he statement came inlto
Respondent's possession in August (see supra., fn 2).
this point is accepted, it does not show a failure to properly
represent Vinson. According to Worley, Respondent did
diligently pursue the grievance and repeatedly sought
Vinson's reinstatement with backpay.
Thus, I find that the testimony and reasonable inferenc-
es therefrom establish that Respondent acted fairly and
responsibly in processing Vinson's grievance.
In an apparent attempt to show bad faith, the General
Counsel relies principally on two facts: (I) that President
Weissman called Vinson a "troublemaker" or a "loud-
mouth" and (2) that he was active in a group called Con-
cerned Workers. The argument is that Respondent had,
and exhibited, hostility toward Vinson because of his role
in the Concerned Workers and Weissman's "troublemak-
er" remarks were a manifestation of his hostility. The argu-
ment is specious. Respondent never mentioned the Con-
cerned Workers in any discussion of Vinson's grievance
and there is no connection at all between the "troublemak-
er" statements and the Concerned Workers activity. Fur-
thermore, after the first "troublemaker" remark, according
to Vinson, Weissman asked for the names of witnesses and
secured their statements. Moreover, even after Weissman's
similar statement during the third meeting at which Vinson
was not present, some three weeks after his discharge, Re-
spondent diligently pursued the grievance. This was before
Evans' second statement. In short, the "troublemaker" re-
marks, even if they are given the reading suggested by the
General Counsel, did not affect the handling of Vinson's
grievance. Nor did Vinson's participation in activities on
behalf of the Concerned Workers ever enter Respondent's
deliberations or discussions with employees. Indeed, these
matters appear to have been afterthoughts since Vinson
never mentioned either Weissman's remarks or his activi-
ties on behalf of Concerned Workers in his pretrial affida-
vit. The General Counsel's arguments of bad faith based
on Lanier's action are likewise without merit in view of my
findings set forth above and because Lanier never partici-
pated in the handling of the Vinson grievance. Accord-
ingly, even assuming, arguendo, that Respondent did not
fairly represent Vinson, the General Counsel has not
shown that its conduct was motivated by arbitrary or dis-
criminatory reasons or bad-faith considerations.
CONCLUSION OF LAW
The General Counsel has not established by a prepon-
derance of the evidence that Respondent violated the Act.
Based upon the foregoing findings of fact and conclu-
sion of law, and upon the entire record, I hereby grant the
Respondent's motion to dismiss and issue the following
recommended:
ORDER 6
The complaint is dismissed in its entirety.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
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