Local No. 111, UAW

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1013 (N.L.R.B. 1980)

LOCAL NO. 111, UAW 1013
Local No. 111, International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, UAW (Wheel Horse Prod-
ucts, Inc.) and John M. Joseph. Case 25-CB-
3706
April 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On December 3, 1979, Administrative Law
Judge Claude R. Wolfe issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting 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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent Union violated Section 8(b)(1)(A) of the
Act when its vice president, Armentrout, threat-
ened Charging Party Joseph with a lawsuit, in re-
prisal for Joseph's comments at a union meeting
implying, in Armentrout's views, that the Union
had not bargained in the' best interests of the em-
ployees during contract negotiations. For the rea-
sons set out below, we disagree with the Adminis-
trative Law Judge's finding.
The essential facts, based on Armentrout's cred-
ited testimony, are briefly as follows: At a union
meeting conducted by Armentrout, Joseph asked
Armentrout what the Union had given up in order
to obtain its most recent collective-bargaining
agreement. Armentrout replied that the Union had
given up nothing. Later during the meeting, Joseph
again addressed Armentrout and, referring back to
Armentrout's reply to Joseph's initial question,
Joseph stated, "You always give up something to
get something in the contract." Joseph added that
he did not yet know what the Union had given up.
The following morning, Armentrout went to Jo-
seph's work booth and asked Joseph to tell him
what it was that Joseph believed the Union had
given up in contract negotiations. Joseph replied
that he had not yet found anything that the Union
had given up. Armentrout told Joseph that the
statements Joseph had made in front of the mem-
bership at the union meeting the night before were
untrue, and Armentrout told Joseph that he "felt
248 NLRB No. 128
that [Joseph] could be liable for a slander suit."'
Armentrout then left Joseph's work area.
Under the circumstances of this case, we find
that Armentrout's statement to Joseph that he felt
Joseph could be liable for slander for making the
comments in question was at most an innocuous
statement of Armentrout's personal opinion or
belief, which had no tendency to restrain or coerce
Joseph in the exercise of his right to question or
challenge union leaders at union meetings.
Thus, we conclude that Respondent has not vio-
lated the Act as alleged, and we shall, accordingly,
dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' Armentrout further testified that
[A]s far as I was concerned, I thought he could [be liable for slan-
derl.. For making false accusations about people. saying things
like we'd given things up i the contract to get other things like
we'd given things up in the contracl to get other things, making false
accusations, and not a thing-nothing to prove it. He had no evi-
dence, no anything: and he's telling everybody that we'd given up
things in the contract, insinuating that we had sold the people out; so
I was trying to find out , hal it was that he was talking about.
DECISION
STATEMENT OF THE CASE
CI.AUDE R. WOLFE, Administrative Law Judge: I
heard this case in South Bend, Indiana, on September 19,
1979, pursuant to a complaint issued on May 4, 1979, and
amended at the hearing, and charges filed on March 29,
1979.
The complaint, as amended, alleges that the Respon-
dent's vice president, Louis K. Armentrout, threatened
John M. Joseph with bodily harm and suit for slander if
Joseph did not refrain from engaging in union or con-
certed activities. The Respondent denies the commission
of the alleged unfair labor practices.
Upon the entire record, including my observation of
the witnesses as they testified, and after consideration of
the parties post-trial briefs, I make the following:
FINDINGS AND) CONCIUSIONS
1. THE EMPLOYER'S BUSINESS
Wheel Horse Products, Inc., the Employer herein, is
an Indiana corporation with its principal office and place
of business at South Bend, Indiana, where it is engaged
in the manufacture, sale, and distribution of lawn and
gardening equipment and related products. During the 12
months preceding the issuance of the complaint, a repre-
sentative period, the Employer purchased, transferred,
and delivered to its South Bend facility goods and mate-
rials valued in excess of $50,000, which were shipped
there directly from States other than Indiana. During the
LOCAL NO III. UAW l
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same representative period, the Employer manufactured,
sold, and distributed products valued in excess of
$50,000, which were shipped directly from its Indiana fa-
cility to other States. The Employer is, and has been at
all times material, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The Respondent represents a unit of employees at the
Employer's South Bend plant. John M. Joseph is a
member of the Respondent, and an employee in the rep-
resented unit.
Two days prior to the March 23, 1979, union meeting,
the Respondent's vice president, Louis Armentrout, told
Joseph that he understood Joseph was going to discuss a
time and motion study at the upcoming meeting. Joseph
assured him that he was not, and I credit Armentrout
that he did not.
At the meeting Joseph asked what the Respondent had
given up to obtain its contract. Armentrout replied that
nothing had been given up. Joseph commented that
something must have been given up, although he did not
yet know what it was. He also advised the members that
he had read two books on collective bargaining which
set forth the theme that collective bargaining was akin to
horse trading,' and both parties gave up things in negoti-
ations.
Joseph then introduced a member who was a political
candidate. Armentrout refused to permit the candidate to
make a speech on the ground it would be an improper
political speech at a union meeting. Joseph took issue
with this decision, but nothing untoward then occurred.
The following morning, Armentrout appeared at Jo-
seph's work station. According to Joseph, Armentrout
was visibly angry, and the following colloquy ensued:
Lou said, "John, you're turning these people against
the bargaining committee from the things you said
at the union meeting last night. I'm going to get
you. I'm going to rip you apart," gesturing with a
tearing motion with his hands. "I'm going to beat
you up. I'm going to drive your head up your ass.
I'm going to get you."
I said, "Lou, I am not trying to turn these people
against the bargaining committee. That is not my
motive. Don't throw your weight around at me be-
cause I am not impressed by mere titles, I feel that I
have a greater title not conferred externally by man
but earned from within myself and that is the desire
on my part to be a decent human being, who wants
to solve problems through peaceful means, not
through force or violence that is not my lifestyle."
This account is a composite of the credible portions of the comple-
mentary testimony of Joseph and Armentrout.
I said, "Lou, what did I say at the union meeting
that has enraged you so much."
*i * * it
He said, "John, you said the union gave up too
many items during the . . . negotiations last fall."
I said, "Lou, that is not true. I did not say that"
He said, "Well, you implied that the union gave up
items.... We gave up nothing."... He gestured
with his hands. "Come out here."
I said, "Lou, I cannot buy your theory of collective
bargaining. I know that the company gave up posi-
tions, the union gained positions, the union gave up
positions, and the company gained positions. You
know, Lou, in collective bargaining, its a matter of
horse trading and each side trading back and forth
until a labor agreement is reached, and that essen-
tially is what collective bargaining is."
He said, "John, I will get you. I will get you," and
walked away.
Joseph maintains that he was very calm and did not
raise his voice throughout the altercation, although he
was shocked, insulted, and frightened, and did not call
for help because he wanted to think how big the threat
was. The more he thought about it, the more mentally
anguished and shocked he became until about 3 hours
later when he asked to meet with Steward Manns.
Armentrout's version is that he asked Joseph what he
thought the Union had given up in negotiations. Joseph
replied that he had not found what it was yet. Armen-
trout told Joseph that his statements in front of members
were untrue, and that Armentrout felt that Joseph could
be liable for a slander suit. 2 Joseph got angry, and Ar-
mentrout left. Armentrout explained that Joseph was
making false accusations that the Union had given up
things, thereby insinuating that the Union had sold the
people out, and that this was what his comment about
slander referred to.
Armentrout denies the threats attributed to him by
Joseph. Joseph denies hearing any threats to sue him for
slander.
Some 3 hours after this confrontation, Joseph arranged
a meeting with Union Steward Danny Manns and Ar-
mentrout. Joseph says he asked Armentrout to tell
Mannus what he had told Joseph earlier that day. To
which Armentrout allegedly denied saying anything, and
even denied meeting with Joseph. Armentrout's version
2 The phrase "liable for slander" repeatedly comes out incorrectly as
"libel for slander" in the record.
LOCAL NO. 111, UAW 1015
of the Manns meeting is that Joseph claimed he had
threatened Joseph, and he denied it. Armentrout also
denies saying he had not talked to Joseph earlier at his
work station. I credit Armentrout over Joseph.
On March 27, Joseph went into the restroom. Employ-
ee Herb Richards then came in, followed by Armentrout
who entered a toilet stall and closed the door. Joseph
testified that he then heard a "big bang" on the stall wall
facing him, which shocked him and caused him to jump.
He avers that he asked Richards if he had heard the
"bang on the wall," and received an affirmative answer.
Armentrout concedes he was in the sheet metal stall, but
denies pounding on the wall. Richards states that all he
heard was the door opening or closing on the stall, that
Joseph asked him if he had heard "that," and that he said
"no." Of the three, Richards was the only disinterested
witness, and he appeared to be testifying truthfully with-
out any indication of prevarication. I credit his version,
and reject that of Joseph. Nor do I believe Joseph's
statement that Armentrout later walked by him and re-
peated that he would "get" Joseph.
The foregoing is the extent of the material evidence di-
rectly relating to the alleged threats. There is no evi-
dence of further conflicts or contacts between Armen-
trout and Joseph. The sole issue is whether or not Ar-
mentrout threatened Joseph on March 24 and March 27.
The incidents of March 27 are the mysterious "bang" in
the restroom, which I find did not happen,3 and a threat
thereafter by Armentrout to "get" Joseph, which I also
find did not happen.
I believe it is clear that Armentrout was angered by
what he considered to be insinuations by Joseph that the
bargaining committee, of which he was a member, had
"sold out" the employees in some way. I further con-
clude that he went to Joseph on March 24 in an effort to
deter Joseph from repeating his statements that the union
had given something up. Both men had some reason for
irritation when they met. Armentrout by reason of what
he considered a false insinuation reflecting upon him in
the eyes of the members, 4 and Joseph by reason of Ar-
mentrout's rejection of a political speech by a member
supported by Joseph. It is possible that either's version of
events is accurate, but only one can be credited because
they are diametrically opposed on all significant points.
There are flaws in each story, but insufficient to warrant
a conclusion that either is false on its face. The key fac-
tors are relative probability and relative demeanor.
Although both versions are plausible, Joseph's claimed
reactions to violent threats and aggressive gestures with
philosophical comment and pedantic lecture strikes me as
highly improbable. Considering that I do not credit his
report of the restroom incident, and further considering
that he concedes he told the membership at the March
23 meeting that he voted for the current contract when
I Even if it had, I find it difficult to believe the General Counsel seri-
ously contends that an unexplained bang or bump of a toilet wall, unac-
companied by word or gesture, constitutes a threat. This is, in my view,
frivolous litigation. In any event, it did not happen.
' Contrary to General Counsel's broad assertion, the evidence does not
indicate that Armentrout felt he had grounds to threaten Joseph with
bodily harm.
in fact he did not,5 these factors indicate that Joseph
may harbor an inclination to state facts that are not en-
tirely accurate in order to turn them to his advantage.
Moreover, his credibility as a witness suffers when his
demeanor is considered. Armentrout was a calm and
direct witness who gave every impression that he was
being completely candid and as thorough as his memory
honestly permitted. His demeanor contained no hint of
evasion or prevarication. Joseph, on the other hand,
albeit more literate and precise, struck me as a witness
given to embroidery of his testimony to bolster his case,
and his testimony appeared carefully designed to that
end. In short, Joseph was not as natural or believable a
witness as Armentrout.
I am persuaded that Joseph's version of the March 24
confrontation with Armentrout is not as convincing as
that of Armentrout. Accordingly, I find that Armentrout
did not then or later threaten Joseph with bodily harm.
The evidence of General Counsel does not preponderate
to the contrary. This does not mean that Armentrout
made no threat at all. He concedes that he advised
Joseph that he thought Joseph could be sued for slander a
for the statements he made at a union meeting. Intraun-
ion activity is protected under the Act.7 Joseph's com-
ments on the conduct of bargaining were not so extreme
as to fall outside that protection. I agree with General
Counsel that the phrasing of Armentrout's comment as
something that could happen does not erase the restraint
and coercion implicit in the very mentioning of the pos-
sibility by a union officer obviously angered at Joseph's
statements. I do not believe that Joseph was required to
carefully ascertain whether or not, or when or where,
Armentrout or others might institute such a suit. Nor do
I believe that Armentrout, irritated as he was at Joseph,
made the statement in a solicitous manner as a union
brother concerned with giving Joseph helpful advice. I
am convinced that Armentrout was trying to get Joseph
to stop his statements at union meetings, and engaged in
deliberate coercive innuendo of his own in order to re-
strain Joseph. Inasmuch as Joseph's activity, which Ar-
mentrout was seeking to restrain, was protected under
the Act,8 Armentrout's restraining and coercive state-
ment violated Section 8(b)(1)(A) of the Act.
The Respondent's argument that Armentrout's state-
ment is not attributable to the Respondent is rejected.
The Board has consistently held union officers to be
s His concession that he did not vote for the contract followed his
positive testimony that he voted against the contract on two or three oc-
casions and then for it at the final ratification meeting At this point in his
testimony he suddenly recalled that he was out of town at the time, did
not attend the final ratification meeting, and did not vote for the on-
tract. I was not impressed by his purported sudden recollection
I Although I have made no statistical survey of laymen, I have noted
in my lifetime that the terms "slander" and "libel" are frequently seen in
newspapers and comfortably used by laymen, sometimes interchangeably
without any particular concern for specific legal significance. Contrary to
the General Counsel, I am loath to remove either word from common
usage and appropriate it to the exclusive control of lawyers I find noth
ing unusual in Armentrout using either or both, separately or inter-
changeably.
7 Local 14997. United Steelworkers of Amerca, .4FL-CIO-CLC (LaPorte
Plastics Corp.), 244 NL.RB No. 7 (1979); Shenango Incorporjred, 237
NLRB 1355 (1978).
8 It is worth noting that it is not at all clear that Joseph's statements
warranted the interpretation Arnlentrout put on them.
LOCAL NO. Ill, UAW lOIS
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union agents, for whose actions the union is responsible.
In any event, Armentrout was acting with regard to mat-
ters arising before him in his official capacity, and inti-
mately related thereto. Armentrout never disavowed his
threat to Joseph, and, assuming arguendo that Respon-
dent's president, Mize, reassured Joseph, I fail to see
how this did anything other than state that neither Mize
nor the Respondent, as an entity, would take action
against Joseph. It did nothing to effectively cancel Ar-
mentrout's threat or possibility of action by him.
Upon the above findings of fact and the entire record,
I make the following:
CONCLUSIONS OF LAW
1. Wheel Horse Products, Inc., is an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening members and employees with repri-
sals because they engage in internal union activity, the
Respondent violated Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not committed any other unfair
practices alleged in the complaint.
[Recommended Order omitted from publication.]