Wellington Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 21, 2013

07-CA-091271 (N.L.R.B. Mar. 21, 2013)

JD–19–13
Belleville, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WELLINGTON INDUSTRIES, INC.
and Case 7–CA–091271
LOCAL 174, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL-CIO
and
INDEPENDENT UNION LOCAL ONE
Party to the Contract
Mary Beth Foy, Esq., for the General Counsel.
Stanley C. Moore, III, Esq. (Plunkett Cooney),
Bloomfield Hills, Michigan, for the Respondent.
Blair Simmons, Esq., (International Union, UAW)
Detroit, Michigan, for the Charging Party
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Detroit,
Michigan on February 13, 2013. The Charging Party, UAW Local 174, filed the charge on
October 15, 2012. The General Counsel issued the complaint on December 17, 2012. This case is
closely related to 2 prior cases decided by the Board at 357 NLRB No. 135 and 358 NLRB No.
90. Indeed, the latter decision involves the identical issue; an employer’s obligation to deal with
the union’s chosen representative. Both of these matters have been held in abeyance by the United
States Court of Appeals for the District of Columbia in light of its decision in Noel Canning, a
Division of Noel Canning Corporation v. NLRB, No. 12-1115 (D.C. Cir. January 25, 2013).
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and Respondent, I make the following
JD–19–13
2
FINDINGS OF FACT
I. JURISDICTION
Respondent, Wellington, Industries, a corporation, manufactures stampings for the auto 5
industry at its facility in Belleville, Michigan, where it annually sells and ships goods valued in
excess of $50,000 to points outside of the State of Michigan. Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and that Independent Union Local One is a labor organization within the meaning of Section 2(5)
of the Act. There is no dispute that UAW Local 174 is also a labor organization. Respondent 10
merely contests the proposition that UAW Local 174 represents any of its employees.
II. ALLEGED UNFAIR LABOR PRACTICES
Independent Local Union One has represented production and maintenance employees at 15
Respondent’s Belleville, Michigan facility for over 20 years. On August 8, 2010, 38 bargaining
unit members out of approximately 128 attended a meeting regarding affiliation with UAW Local
174. Those attending this meeting voted to affiliate with Local 174 by a vote of 30 to 6, with 2
abstentions. Sometime afterwards, 75 employees signed a petition calling for another vote
regarding affiliation. The petition alleged that there was insufficient notice with regard to the 20
August 8, 2010 affiliation vote. Respondent has relied on this petition in refusing to recognize the
affiliation of Local One with the UAW or to meet or have any dealings with UAW personnel, and
more specifically UAW Local 174 President John Zimmick.
On September 28, 2010, Respondent filed a petition with the Board challenging the 25
affiliation of Local Union One with UAW Local 174, 7-RM-1496. The Regional Director
dismissed this petition administratively. He also dismissed a RD decertification petition. The
Board affirmed the Regional Director’s dismissal of the RM petition on February 11, 2011 in an
unpublished order. There is no indication in this record that the Board’s dismissal of the RM
petition or the Regional Director’s dismissal of the RD petition has been appealed.30
Local Union One began negotiations for a successor collective bargaining agreement with
Respondent in May 2010. On December 2, 2010, the parties signed the agreement, G.C. Exh. 6,
which is effective from November 14, 2010 to November 13, 2013. Shortly before the contract
was agreed upon, Local One proposed to have Zimmick attend bargaining sessions. On November 35
8, 2010, Respondent refused to attend any bargaining session at which Zimmick was present.
Wellington I, 357 NLRB No. 137
On December 9, 2011, the Board affirmed Judge Keltner Locke’s conclusion that 40
Respondent violated Section 8(a)(5) and (1) of the Act by refusing to negotiate with Local Union
One if Zimmick was present at the collective bargaining sessions, 357 NLRB No. 137. In a
footnote, the Board noted that it had already reviewed the validity of the affiliation and declined to
reconsider it.
45
JD–19–13
3
Wellington II: 358 NLRB No. 90
The second complaint related to this matter alleged that Respondent violated Section
8(a)(5) and (1) by failing to provide information requested by Local Union One on July 12, 2011
and refusing to allow John Zimmick to attend a grievance hearing regarding discipline issued to 5
unit member Shane Cook.
On June 13, 2011, Mark Roggero handed Respondent’s Human Resources Manager, Gary
Sievert, a slip of paper notifying Respondent that John Zimmick wanted to attend a grievance
hearing regarding disciplinary action taken against unit member Shane Cook. About a week later, 10
Sievert informed Roggero that Respondent would not allow Zimmick to attend this hearing.
The Board held that Respondent violated Section 8(a)(5) and (1) by refusing to permit
Zimmick to attend this grievance hearing. In doing so, it relied exclusively on its precedent that
absent extraordinary circumstances, the Act imposes on employees, employers, and union an 15
obligation to deal with each other’s chosen representatives. It specifically eschewed reliance on
its prior finding that Independent Union One was validly affiliated with UAW Local 74.
Wellington 3 (the instant case)
20
On September 19, 2012, the Union’s second shift steward, Jerry McGraw, filed a grievance
on behalf on unit member Tony Williams. Respondent proposed to terminate Williams’
employment due to attendance issues. On September 24, Gary Sievert, Respondent’s Human
Resources Director denied the grievance at step 2 of the contractually mandated grievance
procedure in a response to McGraw. McGraw, on behalf of the Union notified Sievert that it 25
wished to proceed to step 3 of the grievance procedure. Step 3 involves a hearing before a council
of 3 members; one chosen by the Union, one chosen by management and a third chosen by mutual
agreement between management and the Union.
McGraw solicited three people to serve on the council and gave these names to Sievert. 30
He then contracted John Zimmick and asked Zimmick if he could attend the council hearing.
McGraw and Sievert scheduled the time and date of the council hearing for October 2, 2012 at
3:30 p.m. Neither informed the Union president, Corbett Crider, of the date and time for the
hearing.1 McGraw, however, did so inform Zimmick.
35
Zimmick called McGraw on October 2 and told him that he would attend the council
hearing and would meet McGraw in the company parking lot. Union President Crider did not find
out the date and time of the council hearing until October 2, when he called John Zimmick on
another matter. Crider, who works the first shift, stayed at the plant after his shift ended and went
to Gary Sievert’s office to advise him that Zimmick was at the plant for the hearing. 40
The following is Gary Sievert’s account of his conversation with Crider, which I credit.
Sievert told Crider that he was surprised that Zimmick was going to attend the council. Either
before or after this, Crider said he was surprised as well. Crider also told Sievert that Zimmick

1 Crider replaced Mark Ruggero as President of the Local One in December 2011.
JD–19–13
4
had told Crider that Williams’ case seemed to be open and shut. Crider also told Sievert that if the
council upheld Sievert’s decision to terminate Williams, the Union would not proceed further with
the grievance.
Sievert told Crider that if Zimmick insisted on participating Respondent would cancel the 5
council hearing. This was not the first time that Sievert had refused to allow Zimmick to
participate in a step 3 proceeding. He done so previously regarding a council hearing filed on
behalf of Crider.
On October 2, the day of the Williams council hearing, Crider told Sievert that if he told 10
Zimmick to leave, Zimmick would do so. Crider and Sievert went to another building where the
council hearing was to take place. There they met Zimmick, McGraw and the grievant, Tony
Williams. Sievert told Zimmick he was not allowed into the facility. Zimmick then left with
Crider and McGraw.
15
McGraw returned to the hearing room. He told Sievert that Zimmick had told him to
proceed with the council hearing and that the UAW would not contest the findings of the council.
McGraw represented the Union at the council hearing. The council upheld Williams’ termination
and the Union accepted that decision without going to step 4, arbitration.
20
Analysis
This case is indistinguishable from the last one. Board law is crystal clear that employees,
unions and employers have to the right to select whomever they choose to represent them for
purposes of collective bargaining and grievance adjustment. Conversely, the other parties must 25
deal with the other’s chosen representative except in extraordinary circumstances not present in
this case, United Parcel Service, 330 NLRB 1020 (2000). One such exception is one in which the
representative has assaulted a representative of the other party previously, Fitzsimons
Manufacturing Company, 251 NLRB 375, 379 (1980).
30
It is not unusual for party in collective bargaining to be represented by a person who is not
a bargaining unit member or not directly employed by the employer, see, e.g. Pleasantview
Nursing Home, 335 NLRB 963, 967 (2001) in which the employer’s chief negotiator in some
contract negotiations was an attorney with the employer’s law firm.
35
Respondent’s defense to the complaint allegations appears to rely either on its refusal to
recognize the affiliation of Local Union One with UAW Local 174, or statements made by Corbett
Crider to Human Resources Director Gary Sievert on October 2, or both. Both arguments are
patently frivolous. As the first argument, the Union has a right to be represented by John Zimmick
regardless of whether or not Local One’s affiliation with UAW Local 174 is valid, United Parcel 40
Service, supra.
Respondent’s reliance on Sievert’s conversations with Crider is equally frivolous.
Respondent does not contend that Steward Jerry McGraw was not authorized by the Union to
select its representative for the Tony Williams grievance. McGraw filed the grievance and 45
Respondent responded directly to McGraw, not Crider, in denying the grievance. Respondent
JD–19–13
5
dealt exclusively with McGraw in setting up the step 3 council hearing. Finally, only McGraw
represented the Union at the council hearing. The fact that neither McGraw nor Zimmick notified
Crider as to the time and place of the council hearing is irrelevant to this case.
It is also irrelevant that Crider told Sievert that Zimmick had indicated that the Williams 5
grievance was open and shut and that the Union would not proceed beyond step 3. In this regard, I
would note that Sievert did not tell either Crider, McGraw or Zimmick that he would not allow
Zimmick to participate in the step 3 proceeding based on what Crider has said to him. Indeed, he
didn’t give a reason. I find that Sievert did not rely on his conversation with Crider in refusing to
allow Zimmick to attend the council meeting. Sievert also did not challenge Jerry McGraw’s 10
authority to select Zimmick to represent the Union in the step 3 proceeding.
Moreover, it is clear from Respondent’s past conduct, that Respondent has made a decision
not to allow Zimmick to represent the Union solely on the basis of his status as President of UAW
Local 174. This past conduct includes not only the prior litigated cases, but its refusal to allow 15
Zimmick to represent the Union in Crider’s step 3 grievance proceeding.
Reimbursement of costs and expenses
The General Counsel seeks an order requiring Respondent to reimburse the Board and 20
Local One for all costs and expenses incurred in investigation, preparation and conduct of this
case. This is an extraordinary remedy. Awarding of such costs is inappropriate so long as the
defenses raised by Respondent are “debatable” rather than “frivolous,” Kima –TV, 324 NLR B
1148 (1997),2 Heck’s Inc., 215 NLRB 765 (1974).
25
In the instant case, the award of such costs is appropriate. There are no credibility
determinations adverse to Respondent in this decision. Respondent has refused to allow the Union
to select John Zimmick to represent it solely on the basis on his status as President of UAW Local
174. There is no legitimate argument to be made in support of this position. Indeed, Respondent
has failed to cite any such support.30
Conclusions of Law
1. Respondent violated Section 8(a)(5) in refusing to allow John Zimmick to assist
Local One at the step 3 grievance proceeding for Anthony Williams on October 15, 2012.35
2. Respondent’s defenses to the complaint allegations are frivolous.
Remedy
40
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.

2 Sometimes cited as Retlaw Broadcasting Co.
JD–19–13
6
Having found that Respondent has engaged in frivolous litigation I shall order that
Respondent pay to the Board and the Union the costs and expenses incurred by them in the
investigation, preparation, presentation, and conduct of this case. Such costs are to be determined
at the compliance stage of these proceedings.
5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
10
The Respondent, Wellington Industries, Inc. Belleville, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
15
(a) Refusing to permit John Zimmick or any other representative of UAW Local 174 from
assisting Independent Local Union One in any part of the grievance process, if Local One has
selected such person as one of its representatives.
(b) In any like or related manner interfering with, restraining or coercing employees in the 20
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Permit John Zimmick and any other representative of UAW Local 174 to participate in 25
any part of the grievance process if chosen as a representative by Local One.
(b) Within 14 days after service by the Region, post at its Belleville, Michigan facility
copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the Respondent’s authorized representative, 30
shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the 35
Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–19–13
7
own expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since October 2, 2012.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that 5
the Respondent has taken to comply.
(e) Pay to the Board and the Union the costs and expenses incurred by them in the
investigation, preparation, presentation, and conduct of this case. Such costs are to be determined
at the compliance stage of these proceedings.10
Dated, Washington, D.C., March 21, 2013.
____________________15
Arthur J. Amchan
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to allow Independent Union Local One to obtain assistance from any
representative of its choosing, including persons associated with UAW Local 174, such as John
Zimmick, in any part of the grievance process, including attendance at grievance hearings and
arbitrations.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL permit representatives who are associated with UAW Local 174, such as John
Zimmick to assist Independent Union Local One in any part of the grievance process, including
attendance at hearings and arbitrations.
WELLINGTON INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
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 ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.