Bowen Products Corp.

BOWEN PRODUCTS CORPORATION Bowen Products Corporation and Charles L. Seals 731' International Union, United Automobile, Aircraft & Agricultural Implement Workers of America , CIO, Local 611, and Interna- tional Union, United Automobile, Aircraft & Agricultural Implement Workers , of America, CIO and Charles L. Seals. Cases Nos. 3-CA-779 and 3-CB- O8. August 16, 1955 DECISION AND ORDER On October 29, 1954, Trial Examiner Henry S. Sahm .issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Company and the Respondent Unions had engaged in and were engaging in certain unfair labor practices and recommending that they, cease and desist, therefrom , and, take certain affirmative ac- tion.. Thereafter, the Respondent Unions filed exceptions to the Inter- mediate Report and a supporting brief. The Board has considered herein only the question of whether the original: charges filed by the complainant, Seals, were timely within the meaning of the proviso to Section 10 (b) of the Act. The Trial Examiner found that when complainant, Seals, who had previously been laid off as a supervisor, was recalled for employment in the bargaining unit on August 24, 1953, the Union for discrimi-. natory reasons caused the Employer to place Seals' name at the bottom of the seniority roster rather than accord him seniority for the time: he had previously spent doing nonsupervisory work.' Seals unsuc- cessfully sought to have this alleged discrimination with respect to his seniority corrected. Meanwhile, Seals worked from August 24 to October 20, 1953, when he was laid off in an economic reduction in force. Under the existing bargaining contract, reductions in force were to be made on the basis of seniority. It appears that Seals would not have been included in this reduction had the parties, in fixing his seniority on the date of his recall, August 24, given him credit for his prior employment with the Company. In rejecting the defense of the Respondent Unions that Section 10 (b) of the Act barred this proceeding because the alleged discrimina= tion against Seals occurred on August 24, when his seniority was fixed, and the instant charges were filed more than 6 months there- after, the Trial Examiner held that "the unfair labor practice did not occur when the Union and Company agreed on the August 24 seniority date, but rather, when it was applied and given effect to in the layoff of Seals on October 20, 1953, which is well within the statu- 1 Prior to the time he was given a supervisory job, Seals worked in the unit. 113 NLRB No. 63. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tort' limitation of Section 10 (b) -112 We • do not agree with the Trial Examiner's application of Section 10 (b) to the facts in this case. Seals was, laid off on October, 20 in a valid economic reduction in force and in accordance with a preexisting condition, i. e., the relative- ly- low seniority he was given on August 24. Thus, in our opinion, the only basis for holding. that Seals' layoff was unlawful would be a finding that the low seniority given him on August 24 was the prod- uct of unlawful discrimination within the meaning of the Act. Sec- tion 10 (b) bars such a finding, even if supported substantively by the record. . - . • Nor do we believe here applicable the continuing violation theory which has been limited largely to situations involving the applications of union-security agreements which are prospective in nature and un- lawful per se.3 Pursuant to the 'parties' basic bargaining contract, which is not under attack, seniority is as much a substantive condition of employment as are wages, hours, or a particular job. The placement of Seals at the bottom of the seniority roster on August 24, notwith- standing his prior service, was a fully consummated act at that time, which immediately created an adverse substantive condition of employ- ment. Thus, assuming such action to be unlawfully motivated, Seals knowingly then sustained an immediate injury under the Act which -could have been remedied had he filed charges within the statutory 6- month period of limitation. To regard such an injury as a continuing unfair labor practice, because an otherwise proper layoff subsequently resulted therefrom, would in effect render Section 10 (b) meaning- less a For under this theory, 10, 20, or more years after the original discrimination, the complainant, upon being otherwise properly de- nied a promotion, transfer, recall, vacation benefits, or other rights based on seniority, could maintain an action therefor by establishing the original discrimination and relating the subsequent action to it. 2 Charges were first filed against the Local on March 26 , 1954, and against the Inter- national on June 1, 1954. It is apparent that even under the Trial Examiner's interpre- tation of the law, he made an arithmetical error in holding that Section 10 (b) did not bar this action against the International. 8 Ebasco Services Incorporated , 107 NLRB 617; Gaynor News Company, 93 NLRB 299, enfd. 197 F. 2d 719 (C. A. 2), affd. 347 U. S. 17 ; N. L. R. B. v. McGraw and Co., 206 F. 2d 635 (C. A. 6) ; Red Star Express Lines of Auburn, Inc. v. N. L. R. B., 196 F. 2d 78 (C. A. 2) ; North East Texas Motor Lines, Inc., 109 NLRB 1147. ' The dissent's factual conclusions that Seals' seniority was not effectively changed until December 1953, rather than on August 24, 1953, is not, in our opinion, supported by the record. Indeed, the Trial Examiner found and all parties , in effect, agreed at the hearing that as a result of discussions between the Union and the Employer , the latter on August 24, 1953, actually denied Seals seniority for his past service. With respect to Seals' subsequent discussions 'with the International, the most that can be said is that Seals unsuccessfully attempted to have the International override the position taken by the Local, which had generally been delegated the power to administer the contract. 8 See N. L. R. B. v. Pennwoven, Inc., 194 F. 2d 521 ( C. A. 3) ; and N. L. R. B. v. Childs Company and Chain Service Restaurant Employees Union, Local 42, et at., 195 F. 2d 617 (C. A. 2). See also Bonwit Teller, Inc., 96 NLRB 608, wherein the Board rejected the contention that the discriminatory discontinuance of the processing of wage reviews con- stituted a continuing violation ; and Goodall Company, 86 NLRB 814, at 844, wherein the Board held that an illegal wage increase did not constitute a continuing violation. BOWEN PRODUCTS CORPORATION 733 In our opinion, the complainant may not establish the now barred claim that he was discriminated against on August 24 as the predicate for his present action seeking redress for his otherwise proper lay- bff.on-October'20 6 We are satisfied that this view comports with the congressional intent of Section 10 (b) to preclude litigating stale un- fair labor practices. As noted, the contrary view would require a respondent to collect evidence and find witnesses as to' events occur- ring years before the filing of,the charge. In reaching a contrary conclusion, our dissenting colleagues rely primarily on the Pacific Intermountain case.? However, in our opinion that case is inapposite to the procedural issue here involved. Examina- tion of the cited authority reveals that Section 10 ( b) was ,in no way involved in the case or mentioned in the decisions; therefore, the sub- stantive holding therein is wholly irrelevant to the procedural aspect of this case. But more than that, the factual aspects of the two cases are entirely different. In Pacific Intermountain, the basic collective- bargaining agreement itself unlawfully delegated to the union the con- tinuous right to control seniority and the union last exercised that right in a discriminatory manner within the 6-month period preceding the filing of the original charges therein." However, in the instant cash, there was not that type of executory agreement which delegated continuous control of seniority to the Union. Indeed, the so-called agreement of August 24, which the dissent equates to the contractual delegation of control of seniority in the Pacific Intermountain case, amounted to no more than the Employer's ad hoc acquiescence to the Union's demand that Seals be treated, under the valid seniority pro- -visions of the contract, as a new employee when he was returned to -work after a layoff. Nor do we believe that the Board's decision in the Potlatch Forests case,9 on which our dissenting colleagues similarly re- ly, is here controlling. In the Potlatch case, the discriminatory senior- ity policy unilaterally adopted by the employer was, like the afore- mentioned illegal contractual provision in the 'Pacific Intermountain case, unlawful on its face and continuing in nature, whereas in the present case the fixing of Seals' seniority was not per se unlawful, but, 9 See Greenville Cotton Oil Co., 92 NLRB 1033 , enfd. 197 F. 2d 326 (C. A. 5), where the Board also similarly held that Section 10 (b) precludes a finding that an employer had illegally refused to reinstate certain strikers, during the statutory 6-month period, when the strikers' right to reinstatement depended upon a finding that the strike , which oc- curred before the 6 -month period, was caused by the employer's unfair labor practices. 7 Pacific Intermountain Express Company, et al., 107 NLRB 837. 9 We note that in the General Longshore Workers case, cited by, our dissenting col- leagues, the General Counsel specifically restricted the complaint to the per se illegal blacklisting acts which in fact occurred within the statutory 6-month period preceding the filing of the charges. Thus, the unfair labor practice findings of both the Board and the court therein were predicated on unlawful conduct occurring wholly within the statu- tory period. 9 Potlatch Forests, Inc., 87 NLRB 1193, enforcement denied on grounds not pertinent herein. 734 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD rather, -merely constituted the type of isolated instance referred to above. -Under , the facts of this case, we find that Section 10 (b) bars the entire -proceedings and shall therefore dismiss the complaints as.to all Respondents. ,rThe,Board ,dismissed the-complaint.] CHAIRMAN FARMER and MEMBER RODGERS, -dissenting: This case involves an employee, Seals, who was laid off by the Re- spondent=Company on October 20; 1953. ` His layoff was directly at- tributable to' the Respondent Union's insistence that his seniority be dated from August'24; ,1953,' for the Company wished to credit Seals with seniority from the time ' of his initial hire in 1940. - Seals filed the charge in this proceeding on March 26, 1954, less than 6 months after losing his job. The majority dismisses the case in its entirety on the theory : that the .unlawful arrangement whereunder the Union, rather than the 'Eniployer, determined Seals' seniority rights, Iwas con- summated on August 24,-1953 (more than 6 months before the filing of the.charge) and; therefore, that the 6-month limitation setforth in Section 10 :(b), of the statute forecloses Seals' right to have the Board process his charge. „ It is hardly decisive of the issue posed in this case to find, as does the tajoiity, that the Company and the Union acted improperly in August 1953, ,and that such improper conduct can no longer be litigated., In- deed,-the record, does not even establish that Seals '. seniority position was settled in August 1953. The basic written agreement under which the job seniority of the Company's employees was determined was be- tween the International Union and the Company, with the Local Union acting merely . as the International 's agent, In .fact, the Local's-au- thority as an agent is specifically limited in the contract which provides that only the International itself has the power to take certain action.'° The action against Seals' interest taken in August 1953, was that of the .Local ; the inconclusiveness of that action is, clearly established in the record. The president of the Local actually suggested to Seals that -he-discuss with the International the Local's August 24 position on his seniority. Seals thereupon discussed with an International representative the Local's determination of his seniority rights. The International representative discussed Seals' complaint with the Local around Christmas 1953 or later. Thus, it was not until at least the end of•December - 1953, that the Union's unilateral determination'of Seals' -, °For example, section 12 of the, grievance - procedure provides that -"no strike will be called until sanctioned by, the International Union, United Automobile , Aircraft and Agricultural Implement --Workers of America, affiliated with the Congress of Industrial Organizations (UAW-CIO)." BOWEN",PRODUCTS CORPORATION 735 seniority rights became. conclusive..-That time,=like the date of Seals' layoff,'was well within 6 months of the'filing of the charge. - Furthermore, even . assuming' that the arrangement between: the Union and the Company'was final as of August 24;'1953, Seals is still not' foreclosed by the statutory limitation from having the-merits of his 'complaint processed before the Board. The majority decision in this case, of necessity, is premised upon a conclusion that the agree- ment violated the Act only at the very moment it was reached. That premise is clearly erroneous. The agreement initially delegated un- lawful'control of-seniority to the Respondent'Union when-reached on August 24. However, such an unlawful arrangement violates the Act as long as it is in effect and whenever it causes a change in the job status of a particular employee. Although not considering Section 10 • (b) as a particularized issue, the Board decided in •Paci fic Inter- mountain 11 and related cases that the maintenance 'and enforcement of a contractual provision delegating control of seniority to a union is unlawful as well as the act of signing the agreement. In fact, the Board: determined ,specifically in Pacific Intermountain, wherein low men on a seniority list unlawfully established years before were laid off, that the Act was violated at the time such individuals were laid off. Indeed, any other conclusion would permit an employer and a union to - enter into an unlawful arrangement-such' as one establishing a discriminatory hiring p'ro'vision=which they-could enforce with inn= punity 6 months after executing the agreement. 'Yet, by depriving Seals of his right to have this case decided on its merits, the majority is giving just such a stultifying'effect to Section 10 (b). ' ",the majority decision in this case is'also in direct conflict with Board and court decisions interpretative of Section 10 (b). The Potlatch 12 case is in point. The Board therein found that Section 10 (b) is inap. plicable where it seniority list, determined to -have been discrimina- torily compiled 16 month's before the filing of a charge, was the basis for the layoff of employees within 6 months'before the charge'wa's filed. In another case 13 involving Section 10 (b), a union placed an individual on-an employment -blacklist more than 6 months before the filing of a charge. ;Yet, the Board found the union violated Sec- tion 8 (b) (2)- because the blacklisting caused an actual denial of employment 'within 6 months of the charge. ' ' , The majority apparently'relies''upon three cases 14 to support its position here; however, as will be shown, all are inapposite. In Penn- -. iu Paoifo Intermountain Express Company, at at., 107 NLRB 837. ' -- "22`PotlatchtForests, Inc.,, 87 NLRB • 1193, enforcement denied on grounds 'not= relevant 'here, 189Y . 2d 82 (C. A 9). 2 N.'L. R. B. v. Local 1418, General Longshore Workers, International Longshoremen's -Association, A."F. L.; 212 F. 2d 846 (C."A.'5). I . . . ` • "N. `L. R.' B. v. Pennwoven, Inc., supra ; N. L. R. B . v. Childs Company, etc.;.supra; and Greenville Cotton Oil Company, supra. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD woven an individual was denied reinstatement due him as an economic striker more than 6 months before he filed a charge. In Childs the complainant failed to file a charge within 6 months after his discrimi- natory layoff under an illegal union-security contract. In each case the incident occurring more than 6 months before the charge was an actual denial of employment. In this case the August 24 agreement-as the critical event the majority finds occurred over 6 months before the filing of the charge-was no more than a threat against Seals' future employment. The first actual refusal of employment to Seals did not occur until October 20 within 6 months of the charge. This case bears no resemblance to the Penn'woven and Childs situations; rather, it is like the case wherein an employer threatens to discharge an em- ployee for union activity but does not actually discharge him until months later, and the ensuing charge, although not filed within 6 months of the threat, is filed within 6 months of the discharge 15 Sec- tion 10 (b) has no application to such a situation. The remaining case the majority applies to the facts involved here is Greenville Cotton Oil. That case involved a strike which began more than 6 months before the filing of a charge. Thereafter, within 6 months of the charge, strikers were refused reinstatement. The only- way in which the Board could have found that the Respondent un- lawfully refused to reinstate the strikers was to find that the Re- spondent had, committed an unfair labor practice, which caused the strike, more than 6 months before the charge was filed. But Section 10 (b) clearly precludes an unfair labor practice finding as to events occurring more than 6 months before a charge is filed. In this case, although the August 24 agreement is pertinent to the October 20 lay- off, there is,no need to find that on August 24 the Respondent com- mitted an unfair labor practice. In our opinion, the majority has, therefore, in reaching a determina- tion grounded upon previously decided cases which have no bearing on the facts of this case,; misapplied Section 10 (b) of the Act. We cannot agree with such a result, and we would find, as did the Trial Examiner, that both Respondents have violated the Act. 15 In such a situation involving a threat and discharge , the passing of "10, 20, or more years" emphasized in the majority's decision has the same evidentiary significance as it would have for a similar interval between compilation of a seniority list and a subsequent discharge thereunder. INTERMEDIATE REPORT BACKGROUND Charles L. Seals, the Charging Party herein , was hired as a nonsupervisory em- ployee on January 16, 1940, by the Bowen Products Corporation , hereinafter re- ferred to as the Company.' On October 1, 1945, he was promoted to a supervisory 1 At that time, there was no labor organization in the plant . In 1944, the Board certi- fied the United Farm Equipment and Metal Workers of America, CIO, as the collective- BOWEN. PRODUCTS CORPORATION 737 position. Seals remained a supervisor until August 6, 1953, at which time he was laid off due to economic conditions. Sometime between August 6 and August 24, 1953, the Company contends it notified the Union that it intended to recall Seals to a nonsupervisory position within the bargaining unit and to accord him seniority from January 16, 1940, the date he was originally employed. The Company's pro- posal that Seals' seniority should date from the time he was originally hired, it was testified, was opposed by the Union which insisted Seals' seniority should date from the time he was "rehired" on August 24 and assigned to a job within the bargaining unit. The Company acceded to the Union's demand. The Company does not claim it was correct in doing so, but attempts to justify its action in bowing to the Union's alleged insistence of an August 24 seniority date, on the ground it was apprehensive that reprisals might be effected against it if it did not agree to do so. Due to business conditions, which required the Company to reduce its working force, Seals was the first employee laid off on October 20, 1953, because his seniority date of August 24 placed him at the bottom of the Company 's seniority list. It is agreed by the parties that if Seals had been granted seniority either from January 16, 1940, the date when he was hired originally, or if he had been granted seniority only from his original hiring date exceeding the time he was in a supervisor's status-under either of these methods of computation he would not have been laid off. However, when his sen- iority was computed beginning from August 24, 1953, the day he was recalled to a job within the bargaining unit, this method of computation so reduced his rating on the Company's seniority roster that he was the first employee laid off in a reduc- tion of force on October 20, 1953. - . The Union, on the other hand, denies that it was ever consulted by the Company with respect to Seals' seniority and claims that the decision to date Seals' seniority from August 24, was the Company's alone. Furthermore, the Union contends that it had no reason to question the correctness of the seniority date given to Seals as he never filed a grievance with the Union concerning his seniority. ISSUES The questions to be decided are: (1) Whether the Union demanded that the Com- pany place Seals at the bottom of the seniority roster; and (2) whether the method used in computing Seals' seniority, which eventually resulted in him being laid off, was an unfair labor practice within the meaning of Sections 8 (a) (3) and 8 (b) (2) of the National Labor Relations Act, herein called the Act .2 1. FINDINGS OF FACT It is conceded and found that the Respondent 's International Union and its Local 6113 are labor organizations within the meaning of Section 2 (5) of the Act. It is conceded also that the Respondent Company, which is engaged in the manufacture of metal stampings and related products, purchased during 1953, raw materials, sup- plies, and equipment valued in excess of $750,000, of which approximately 70 per- bargaining agent for the Company's production and maintenance employees. Seals was then an employee in that unit but he never joined the Union . On November 2, 1944, the Company and the Union (UFE) entered into an agreement which contained a mainte- nance-of-membership clause. On May 10, 1950, the Respondent International Union was certified by the Board. 2 The pertinent provisions of these sections are : Sec. S. (a) It shall' be an unfair labor practice for an employer- . .. (3) by dis- crimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : .. . (b) It shall be an unfair labor practice for a labor organization or its agents- .. . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uni- formly, required as a condition of acquiring or retaining membership ; .. . 3 The Union was certified by the Board on May 10, 1950, as the collective-bargaining agent for the production and maintenance employees at the Company's Auburn, New York, plant.. The various agreements in effect between the Company and Union, at all times pertinent herein , contained a union-security provision. Under this provision, an employee who is ' a member of the Union as of the effective date of the contract, or who thereafter becomes a member, must continue as such throughout the life of the agree- ment as a condition of employment. As of October 20_1953 , there were approximately 165 production and maintenance employees ,in the bargaining unit. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cent was purchased from sources located outside the State of New York and was shipped, directly to Respondent's plant located in Auburn, New York. During the same period, Respondent sold and shipped metal stampings and related finished products valued in excess of $1,500,000 of which approximately 90 percent was sold and shipped directly to customers located outside the State of New York. It is found, therefore, that the Respondent is engaged in commerce within the meaning of the Act, and it is subject to the jurisdiction of the Board. A. The testimony Seals testified that after he was laid off from his supervisory position on August 6, he was sent for, on August 21, by Robert D. Mullally, employment manager of the Company, who informed Seals that he should return to work on August.-24• in a nonsupervisory position and that his seniority would date from that time .4 Seals testified that he remonstrated with Mullally arguing that he was entitled to seniority from the date he was hired on January 16, 1940, but, "Mr. Mullally told me that the Union agreed with the Company to place my name on the bottom of the seniority list, although the Company was not in favor of going along with the idea." On August 24, 1953, the day Seals returned to work, he joined the Union. At that time, he told George Hundley, the union steward for his department, about his dissatisfaction with being placed last on the plant's seniority list and Hundley agreed that it would be brought up at the next meeting of the Union .5 Sometime be- fore the union meeting, he also contacted John Pallack, a union steward, and dis- cussed his seniority grievance with him. After the union meeting, which was held on September 16, Seals testified that he related the details of his seniority grievance to Louis Cerio, president of Local 611, and Cerio advised him "that because of the date of re-hire [August 24] that was where my name was placed, on the bottom of the seniority list, and would remain there; there was nothing I [Seals] could do about it, and that I was lucky that I got into the Union because I was antiunion." 6 When Seals was asked by the General Counsel's representative whether Cerio in- dicated,why he was ranked last on the seniority roster, he replied, "Not except be- cause I was re-hired and had just joined the Union as of the date of August 24th."7 Seals also testified that he complained to Margaret Corey, a member of the Union's grievance committee, on or about October 1. He told her, he testified, that he. con- sidered it unfair to be listed at the bottom of the seniority roster and that he felt his seniority should date from January 16, 1940, when he first went to work for the Company. Corey stated, according to Seals, that his seniority was determined as of the date he "was rehired and joined the Union." 8 On October 19, the day before he was laid off, he asked George Kapcha, chair- man of the Union's grievance committee, for a grievance form in order that he might assert his seniority complaint. Kapcha, according to Seals, told him he had no form and even if he did, it would not do him any good to fill one out. In the latter part of November or beginning of December, he went to Syracuse, New York, and spoke to George Staub, International representative of the United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, the International affiliate of Local 611. Seals gave Staub the facts upon which he based his grievance and Staub after hearing them told Seals that he would be notified as to what the International's position would be with respect to his seniority grievance. After waiting more than 3 months for a reply from Staub and receiving none, he filed his first charge with the Board on March 26, 1954. On May 10, 1954, the Company recalled Seals to work in a bargaining unit job. 40n or about August 24, the Company advised the Union by a printed notice called a "change in' employee statusl' form (General Counsel's Exhibit No. 5) that Seals was being transferred from a supervisor's status to a job within the bargaining unit. 5 Also present during the conversation was Donald Hockeborn, a member of the Union's grievance committee. e On his cross-examination, Cerio admitted that he had checked Seals' prior union his- tory and activity. Cerio also stated in an affidavit which he gave a Board representative that Seals was "strictly antiunion" and that he "looked back into Seals' union history." At another point in his cross-examination, Cerio denied that he checked Seals' union history. 7 Seals testified that he complained to Cerio about his seniority on two other occasions between the. date of the union meeting and the time he was laid off on October 20, but to no avail. 8 Seals testified that in relating his seniority grievance to Hundley, Hockeborn, Pallack, and Cerio that he told each of them that he should be entitled to seniority from January 16, 1940, the date he was originally employed by the Company. BOWEN PRODUCTS CORPORATION 739 Robert-D. Mullally, employment manager of the Respondent Company since February 1947, testified that he had a conversation in his office sometime between August 6 and August 24 with Louis Cerio, president of the Local Union. At that time he informed Cerio that Seals was to be recalled to a nonsupervisory job and that the Company proposed to'accord him seniority. from the date he. was originally hired on January 16, 1940. Cerio told Mullally he would give him an answer on Seals' seniority question later. Cerio, according to Mullally, advised the Company a few days later that he was authorized by the International Union to state that in- asmuch as Seals had never been a member of the Union, that he was considered for all intents and purposes a new employee and that his seniority should date from the time he was recalled to work on August 24.9 The- Company acceded to the Union's request because, as Mullally testified: The Company felt that as this was the position of the Union that we could ,do nothing else other than agree because of the fact that if we did not agree we believed it possible for the Union to-immediately present us with a grievance on the behalf of another employee who-might have had more seniority than Mr. Seals' seniority date of August 24th. If this were the case it would have been possible-we did not know, could not foresee, what conclusions such a grievance could end with, and the Company might very well have been liable for a substantial amount of back pay to another employee, so we agreed to this decision. As a result of the decision to assign an August 24 seniority date to-Seals which placed him at the bottom of the seniority list,10 he was laid off on October 20, when the Company reduced the number of its employees because of business conditions. It was stipulated that if Seals had been granted seniority only from the time he was hired until he became' a.supervisor on October 4, 1945, that -even then- his rank on the seniority list would have been high enough so that he would not have been laid off on October 20.11 - - - . Louis Cerio, president-of the Local Union, a member of its grievance committee; and an employee of the Company since November 1945, testified that he learned of Seals' August 6 layoff shortly thereafter, and that he had never discussed Seals'. seniority status prior to that time with any company official. Nor did he recall ever discussing Seals' seniority status with any company representative prior to or subse=, quent to August 24,12 the date when Seals"was recalled to a nonsupervisory position. 9 Mullally also testified that Cerio told him that the Union's constitution compelled this, interpretation of Seals' seniority rights - 10 The seniority list is prepared by the Company and checked by the Union before it is issued and it is utilized by the Company in effecting reductions-in-force. It is piantwide in coverage and comprised only of employees classified within the bargaining unit, but ,it does not include supervisory personnel. A copy of the seniority list on which Seals' name appears last was given to the Union about October 1, 1945. - ' - "The claim was made that even though Seals might be, considered to have seniority from the time he was originally hired on January 16, 1940, as a rank-and-file employee that, nevertheless, the time that he was in a-supervisory position from- October 1, 1945, to•August 6, 1953, should be excluded in computing his seniority - 32 At another point in his direct examination, he testified that the first time the layoff of Seals and the question of his seniority was brought to his attention was when the Company requested the Union to give Seals preferred seniority in.order that he could be recalled to work on August 24 to take a fob for which only Seals had the requisite quali- fications- This would seem to'place the date that Cerio had notice- of Seals' seniority complaint as prior to August 24. -This is confirmed by the testimony of Margaret Corey, a member bf 'the 'Union's grievance committee, who testified that she, Cerio, Kapcha, and Hockeborn, met with Mullally and -one, -Steelow,- vice president of the -Company,- prior to August 24. The purpose of thismeeting,' she testified, was for the Union to consider whether they would agree to the Company's request to accord Seals preferred seniority 'in order that-he might be permitted to fill a nonsupe'rvisory-job-for which he was exclusively qualified. When this was brought to Cerio's attention on his cross-examination, he ad- mitted that the' Company 'did request the Union 'to grant preferred seniority,'to 'Seals prior•,to his recall on August 24. However, at another point in his cross-examination, he reverted to his original statement that the first time Seals' seniority 'problem came-to'his ntteiition-.was after the union meeting which-was held on September 6' , In an 'affidavit dated.-Apri1.15, 1954,• given by. Cerio to-.a-Board-representative, -he states that he had a conversation with Mullally "sometime in August 1953" withi reference , to-Seals' : case. He then testified that he could not state whether he did or did not have such a conversa- 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He did, however, recall a conversation with Seals sometime in September with respect to his seniority. In that conversation, at which George Hundley, a union steward, was present, Cerio testified that: Hundley . . . believed that Mr. Seals' seniority should date from the date of hire. It was not discussed what the date of hire was, but I had assumed that it was before I was there because when I went in there-when I was hired in Bowen Products [May 19451 Seals had already been employed there [in a non- supervisory position.. .. And I told Hundley and Mr. Seals .. . that what was decided on Mr. Seals was according to the way the contract was interpreted by myself and if Mr. Seals thought that he was being dealt with unjustly, to contact an International Representative, either in Syracuse or when the Inter- national Representatives come to visit our plant. On his cross-examination Cerio admitted that the Company and Union had agreed on or about August 24 that for purposes of seniority, Seals' seniority should begin as of August 24, 1953. When it was brought to his attention that this was incon- sistent with his testimony on direct examination in which he stated that he first learned of Seals' seniority matter sometime in September, he testified, "I don't remember." Cerio on his direct examination testified that the August 24 date for determining Seals' seniority was the sole decision of the Company and that the Union was never consulted with respect to this matter. Counsel for the Company in cross-examining Cerio asked him whether he recalled any previous conversations which he alleged culminated in the Company arriving at the August 24 seniority date. When Cerio answered that he did not recall any previous conversation in this regard, Counsel inquired: Q. So you may be misguided by your lack of recollection as to who did pro- pose the date August 24th? A. It is possible, yes. Cerio also denied on his cross-examination that he had checked into Seals' union history but in his affidavit dated April 15, 1954 (General Counsel's Exhibit No. 8) which he gave to an investigator for the Board, he stated that, "we looked back into Seals' union history." George J. Staub, International representative of the UAW-CIO, testified that it is part of his duties to work with the Local Union and to participate in contract negotia- tions with the Bowen Products Corporation. He testified that Seals discussed his seniority problem with him in November or December 1953 at his office in Syracuse, which antedated the time Staub discussed Seals' case with the Local Union's grievance committee. Staub subsequently discussed Seals' seniority status with the members of the Local's grievance committee who asked, his advice on the problem. Staub testified: My advice at that time after they told me the circumstances of the case and the circumstances were that Seals had been laid off and at a period three weeks later the company wished to employ him as a floor inspector, and the committee at that time stated that they agreed to his reemployment as a floor inspector with preferred seniority because there was nobody laid off who could do the work, and, as I understood it, I was informed at that time that Mr. Seals was coming back as a new hire, that no effort had been made by the Company to place him on the seniority list, that he was just laid off and, at a later time, he was hired in as a new man,13 so I said in that case , why, I couldn't see where Mr. Seals had any claim to any back seniority. At another point in his testimony, Staub stated that he agreed with the members of the grievance committee of the Local Union that they had decided Seals' seniority status properly, "because we had no control over what happened to Seals,while he is working in a supervisory position ," and that he agreed Seals' seniority should date as of the time he returned to the bargaining unit on August 24, 1953. tion with Mullally prior to August 24. "I wouldn't say either way," Cerlo testified. Finally, when questioned by Company's counsel he reverted to his prior testimony that the first time he learned of Seals' seniority problem was in September 1953. 33 When Seals was asked by the unions' counsel if he had filled out a new set of forms for employment when he was recalled to a nonsupervisory job on August 24, he answered : "No, no forms were filled out." , BOWEN PRODUCTS CORPORATION 741 B. Analysis of the testimony 1. Whether the Union demanded that the Company place Seals at the bottom of the seniority list That part of both Mullally's and Seals' testimony which deals with the salient issues in this proceeding are contradicted by Cerio, the Local Union's president. Neverthe- less, after observing the witnesses and analyzing the record and inferences to be drawn therefrom, it is concluded-that the witnesses for the General Counsel should be credited. Seals appeared to be a sincere and truthful witness and the events narrated by him follow a logical sequence, which are consistent with the attendant circumstances in this case. Although Mullally was hesitant in answering some of the questions put to him, that part of his testimony in which he stated that the Union insisted Seals' seniority should date from August 24 is credited for the reasons hereinafter specified. His hesitancy on the witness stand might be ascribed to his uncomfortable position, in that, the testimony he was giving contradicted Cerio, the union president, the person with whom he would have to continue to deal in the future. Cerio, on the other hand, was reluctant to state frankly any matter that was adverse to the Union's interest so that at times his characteristic approached evasion. His testimony was self-contradictory, inconsistent, and in some aspects incredible. When his testimony at the hearing is compared with the sworn statement 14 he made on April 15, 1954, prior to the hearing (General Counsel's Exhibit No. 8), it is concluded that this is one of several indicia that what he testi- fied to is unreliable and unworthy of belief. In addition, it taxes one's credulity to subscribe to Cerio's story that Seals' seniority status was not brought to his attention until some time subsequent to August 24. When it is considered that Seals' seniority status, would necessarily have had to be determined prior to the time he returned to work on August 24, it is inconceivable that Cerio, the Union's president, would not have been consulted by the Company with respect to this all important determination. Moreover, it is uncontradicted that the union officials met with the company officials before August 24. At that time the Company was faced with a dilemma caused by the Union's insistence that Seals' seniority date from August 24, which resulted in Seals being ranked last on the seniority roster. Thus, the Company was precluded from hiring Seals for a job for which he was-the only one in the plant who had the required qualifications, because other employees who were in a laid-off status at the same time had higher ranks on the seniority roster than Seals.15 Since the Company in agreeing to the August 24 date, resulted in Seals being ranked at the bottom of the seniority list, the only way in which Seals could be eligible for the job the Company wanted him placed in was to obtain the agreement of the Union to grant Seals "preferred seniority," over those employees in a laid-off status who had a higher seniority rank than Seals. As Seals returned to work on August 24, it necessarily follows that the Union in order to agree to Seals being granted "preferred seniority," not only knew but discussed with the company officials Seals' seniority status prior to August 24. This most significant circumstance casts further doubt upon the reliability of Cerio's testi- mony .that he never, discussed Seals' seniority status with the Company prior to August 24. On the basis of Cerio's demeanor, his sworn affidavit, his evasive, inconsistent, and contradictory testimony, which was not only improbable in many aspects but also strained the credulity of the Trial Examiner, it is concluded his testimony is of such doubtful character, that it is disregarded and rejected on all disputed matters which-are relevant to the probative issues in this proceeding.1° 14 See D. Gottlieb & Co., 102 NLRB 1708, footnote 1. 15 It is significant that Staub, the International 's representative, testified that the rea- son the Union agreed to Seals being accorded "preferred seniority" on August 24, was because he was the only employee in the plant of all those in a laid-off status who was qualified to perform the duties of the job for which the Company requested his services. 16Judge Learned Hand in Dyer v. MacDougall, 201 F. 2d 265, 269 (C. A. 2) stated: [demeanor ] evidence may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story, for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance, or defiance, as to give assurance that he is fabricating, and that if he is, there is no 'alternative but to assume the truth of what he denies. This precept was followed in N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79, 86 (C. A. 9) affd. 346 U. S. 482. Cf. N. L. R. B. v. Dinion Coil Co., 201 F. 2d 484, 487 (C. A. 2). 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The trier of these facts is convinced that economic considerations motivated the Company in its purpose to date Seals ' seniority from the time he was employed originally on January 16, 1940. Otherwise, he would have been rated .so low on the seniority roster that in the event of a reduction in force, he would have been the first employee laid off from his job. Moreover, it would be to the Company's advantage to accord Seals' service credit from the time he was originally hired because by granting him as much seniority as possible he would not, then be vulnerable to a layoff. Thus, the Company by fostering a policy of holding in- tact its oldest employees would benefit to the extent of having available the services of•one of its most experienced employees who was so well regarded by the Com- pany that he had been promoted from a rank-and-file job to a supervisory position. The Union, on the other hand, did have motivation -for not being too kindly disposed toward Seals. There is evidence that Cerio was hostile toward Seals because of the latter's alleged antiunion attitude as manifested by Cerio 's statement to Seals that he was fortunate the Union permitted him to become a member. Then too, it is reasonable to infer, on the basis of the record, that there was a natural re- luctance to accord a high seniority to a person who was the last member to join the Union, particularly so, when it is considered that in the event of a layoff, em- ployees who had been union members much longer than Seals would be laid off before him. Inasmuch as the record is devoid of any substantial evidence that the Company had any valid reason for taking the initiative for ranking Seals at the bot- tom of the seniority list, the conclusion is inevitable that this action was taken by the Company at the Union's demand. The Trial Examiner is convinced the Union was discriminatorily motivated by proscribed considerations, including Seals' alleged antiunionism in demanding that the Company reverse its intention to credit Seals with seniority from the date he was originally hired. Even though the Union should contend that its demand that Seals' seniority date of August 24 was its good-faith interpretation of the agreement between the Company and Union, nevertheless, it is axiomatic that a statutory infrac- tion is-not condoned by an honest mistake nor justified by "good faith." 17 'See Don Juan Co., 89 NLRB 1425, 1427. Against this simple fact pattern, Respondent Unions' efforts to exonerate them- selves from a finding of unfair labor practice are singularly unimpressive. The variations in the Union's contentions, namely: (1) The decision to date Seals' sen- iority from August 24 was the Company's alone; (2) that it was unaware that Seals even had a seniority grievance; and (3) when Seals returned to the bargaining unit on August 24, his status was that of a "rehire" or new employee, casts doubt upon the meritoriousness of the Union's defense. - Shifting reasons are often indicative of a discriminatory intent. Dant and Russell Ltd., 92 NLRB 307, 320; Intertown Corporation, 90 NLRB 1145, 1188. The giving of contradictory reasons may, of course, be considered in determining the real motive; N.L. R. B. v. Condensor Corp. of America, 128 F.2d 67 (C. A. 3); and inconsistent explanations is a circumstance indicating its motivation. N. L. R. B. v. Somerset Shoe Company, 111 F. 2d 68 (C. A. 1). Finally, there is the variance in the Unions' attempts in this proceeding to explain Seals being ranked last on the seniority roster from the explanation given Seals at the time he was so ranked. At that time, the Union told Seals that the, date of his seniority was.determined on the basis Qt, when he returned to the bargaining unit but at the hearing the ,Union claimed that for'purposes of `computing his sen- iority, he'was a- new employee as of August 24. The Union also asserted another reason' for demanding that Seals' seniority should be computed from August 24, as Mullally testified on his direct examination: "Reluctantly, we accepted or I- accepted Mr. Cerio's contention that as Mr. Seals -had never' been a member of the Union that he had no seniority rights." Upon a study,of the evidence on the record as a ,whole, and based upon the re- liable, probative, and substantial' testimony taken in, this case, it is concluded that Respondent Local Union with the affirmance of the, Respondent International Union 18 ,demanded, that the Respondent Company 'compute-Seals' seniority begin- ning from the time he was recalled on August 24, 1953, to a, nonsupervisory 'job within the, bargaining unit. 'As the 'Charging Party; Seals, would not have been laid off on October 20, absent the Respondent Company's compliance with the union demand, it ' is'fburid that the Respondent-Company in order to improve its relations with 'the`Local and'avoid' further' troublesome incidents, permitted' the Union-to:uni- 11 N. L. It. B. v. Illinois Tool Work's,' 153 F. 2d 811, 814'(C. A.'7) N. L. R: B.'v.,Hud- Bon Afotor'Car'"Co 'i28-F. 2d'528,"532-33 (C. A.56) N. L.R. B, v.•Perfect,Circle 0o.,1162 F: 2d 566, 569 (C: A^. 7). .. ;:) 28 See pp. 255 and 256 of the transcript. a'J. BOWEN PRODUCTS CORPORATION 743 laterally arrogate to itself control over employment, and to use such control to ac- complish Seals' layoff which was clearly discriminatory.19 The Union caused com- pany discrimination which resulted when the Company enforced the demand of the Union as to Seals' seniority and inherently encouraged union membership by dem- onstrating the power of the Local to protect the job of its members at the expense of others toward whom it was not kindly disposed.20 The insistence of the Respond- ent Unions that in computing Seals' seniority he should not receive credit for the time prior to August 24, violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act, and the Respondent Company's yielding to the Unions' pressure, which eventually resulted in Seals being laid off on October 20, 1953, was an unfair labor practice within the meaning of Section 8. (a) (3) and 8 (a) (1) of the Act. See United Mine Workers, 90 NLRB 436, 437. 2.- The method used in computing Seals' seniority which eventually resulted in him being laid off on October 20 Seniority is preference in employment based upon length of service.21 However, this preference is not absolute, but is limited by many factors which determine the value of seniority to different groups of workers. When forces are curtailed, man- agement is confronted frequently with the problem of layoff or demotion of fore- men as well as the curtailment of the regular working force. It is reasonable for employers to look upon foremen as their most highly trained and valuable em- ployees and thus contend that management should have an unqualified right to re- tain foremen even if rank-and-file employees are displaced thereby. Labor organ- izations, on the other hand, it is equally reasonable to suppose, feel that, since tore- men constitute a separate classification of employees not eligible for union member- ship, they should not be allowed to take available work from a bargaining unit employee 22 - Seniority can affect the tenure of employment of individual employees. By its very nature, seniority is a relative matter and the denial of seniority to Seals prior to the time he returned to the bargaining unit and joined the Union, necessarily improved the seniority of other employees who were hired after Seals. Thus, when Seals originally came to work for the Company, all employees within the bargaining unit had acquired a fixed relative seniority which, but for the -Unions' insistence that Seals not receive credit for the time.he was employed prior to August 24 would have remained relatively constant, except, of course, for normal personnel turnover and possibly', promotion to a position outside the bargaining unit. The effect of the Respondent Unions' demand that Seals be denied any seniority prior to his re- turn to the bargaining unit and joining the Union, and at the-same time permitting other bargaining unit employees to accrue seniority for the corresponding period, changed the relative seniority to the detriment of Seals.23 Thus, the effect of the Unions' action with respect to Seals' seniority was to penalize him because he had not been a member of- the Union. By this demand, in which- the Company ac- quiesced, the Union and Company impaired Seals' seniority and affected' his tenure of-'employment as evidenced by him being the first employee to be laid off in a reduc- tion in force on Octobei 20, 1953. . - - . Thus, the determination as to which employee would be laid off first in the event of a reduction in force, was, in part, made on the basis of when an employee joined the Union and not when he was originally employed by the Company. The effect of this joint action by the Company and Union was to encourage and actually re- quire an- employee to become a member of the Respondent Union as soon as he was hired. Where, as here, the contract between the Company and Union contained a " Air Products Inc., 91 NLRB 1381 ; Pacific Intermountain Express Company, 107 NLRB 837 ; Printz Leather Co., 94 NLRB 1312, 1327. 21 See N. 'L. R. B. v 'Iiiternatson'al Brotherhood of Teamsters, 74 Sup. Ct' 323, 335-7, where the union violated-Section 8 (b) (2) when, -pursuant 'to an agreement- with .the employer whereby it was to determine all questions of seniority in employment, it moved a union member to last place' on the seniority list because he became delinquent in the payment of dues. The Court held it is not necessary to establish the specific intent of the employer to encourage union membership because such intent can be inferred from the- showing that such discrimination had `the effect of encouragement. Id.' at 337 et seq. 21 See article XII, section-1; General Counsel's Exhibit No 3 - >> 22 See Seniority Policies and-Procedures, Harbison (1941) ; Ford Motor Co. v. Huffman, 345 U:-S. 330 ; Aeronautical Lodge v. Campbell, 337 U 'S 521. • - It, will be recalled that' Seals -held a 'bargaining unit job 'from January 16, 1940, to October 1, 1945, when he was promoted to•a supervisor's position. -- 379288-56-vol. 113-48 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union-security provision requiring employees to become members of the Union 30 days after their employment, the practical effect of basing seniority on the date an employee joined the Union was to deny him the 30-day grace period provided for in the provision of Section 8 (a) (3) of the Act. General Counsel's Exhibit No. 3 is the collective-bargaining agreement that was in effect between the Company and the Local for the period beginning September 28, 1953, and ending July 28, 1954. General Counsel's Exhibit No. 4 is the contract that was in effect between the parties from July 28, 1952, to July 28, 1953, except that the latter contract also contained article XIII, section 10, page 44 of General Counsel's Exhibit No. 3; and it was further stipulated that the July 28, 1952, to July 28, 1953, contract was extended by oral agreement between the Company and Local to September 28, 1953, at which time General Counsel's Exhibit No. 3 was executed. All these various agreements contained a union-security provision.24 Employees have no statutory or constitutional right to seniority. Such right exists solely by reason of contract 25 In the instant case, the contract which was in effect between the Company and the Union when Seals was both laid off from his super- visor's job on August 6, and later recalled to a nonsupervisory position on August 24, provided that a bargaining unit employee promoted to a supervisor' s position, shall accumulate seniority for 6 months from the time he became a supervisor.26 The same contract also contained a provision that when a bargaining unit employee who was promoted to a supervisor is later demoted, he shall not lose any seniority rights. The question whether these two provisions are consistent, inconsistent, or ambiguous is not before the trier of these facts. It is sufficient for purposes of resolving the par- ticular issues in this case to hold merely that in any event, a reasonable interpretation of Seals' contract rights entitled him either to uninterrupted seniority dating continu- ously from the time he was employed originally on January 16, 1940; or seniority computed from January 16, 1940, to 6 months beyond October 1, 1945, when he was promoted to supervisor plus any additional seniority he might accumulate after August 24, 1953, the date he returned to the bargaining unit. Since it has been stipu- lated that under either interpretation, Seals would not have been laid off on October 20, 1953, it is not necessary to determine which of these two interpretations is correct. Article XIII, section 10, of General Counsel's Exhibit No. 3, which was also con- tained in the contract in effect at the time Seals was recalled to a position within the bargaining unit on August 24, 1953, provides: An employee who is a member of the bargaining unit who is transferred or pro- moted to a job outside the bargaining unit will accumulate seniority for six months from the date of such transfer or promotion. Article XVI, section 4, of General Counsel's Exhibit No. 4 which was in effect when Seals was demoted on August 6, 1953, provides: In the event any employee who has been, or may be promoted to positions not covered by the Agreement, is demoted, such employee shall lose no seniority rights. General Counsel's Exhibit No. 3, which was the agreement in effect on October 20, 1953, the date Seals was laid off, provides: In the event any employee who has been, or may be, promoted to positions not covered by this Agreement, is demoted, such employee shall lose no seniority rights accrued under this contract. Article XII, section 2, B, page 34, of General Counsel's Exhibit No. 3, provides: In determining an employee's length of service for seniority purposes, computa- tion will begin from the date of the employee's hire or rehire 27 at Bowen Products Corporation. Moreover, when the seniority provisions in the agreement between the Company and the Union, supra, are considered in a frame of reference with the Unions' refusal u Article XII, section 2, A, (2) of both General Counsel's Exhibits Nos. 8 and 4 pro- vide that seniority shall be plantwide. 21 Starke v. N. Y., Chicago & St. Louis R. R., 180 F. 2d 569 (C. A. 7, 1950). 0 It should be noted that this provision is silent as to what shall be such an employee's seniority rights in the event he is subsequently demoted to a nonsupervisory position. 27 The Union's contention that Seals was "rehired" on August 24 is rejected for two reasons : First, Seals did not fill out a new set of employment forms at that time ; and secondly, the term "rehire" in its ordinary dictionary sense means the hiring of a former employee which description does not apply to Seals. BOWEN PRODUCTS CORPORATION 745 to grant Seals any seniority prior to his return to the bargaining unit, the obvious conclusion is that the Unions' interpretation of Seals' seniority rights was so unrea- sonable as to be discriminatory. The unreasonable and discriminatory interpretation placed by the Union on Seals' seniority rights, insofar as it has relevancy to the issues in this proceeding, casts doubt upon the bona fides of the Unions' motivation in insist- ing that the Company compute Seals' seniority beginning from the time he returned to the bargaining unit on August 24, 1953. Corroborative of this conclusion is the fact that on May 10, 1954, the Unions receded from their position that Seals' senior- ity should begin on August 24, and agreed to grant him seniority from his original date of hire on January 16, 1940, to 6 months beyond October 1, 1945, when he became a supervisor. Nor is it without significance that the seniority list (General Counsel's Exhibit No. 6) has a column captioned "Date of Hire" which might appear to indicate that length of prior service with the Company is the criterion for deter- mining the bargaining unit employees' numerical ranking on the seniority roster.28 It will be recalled that Seals had been a member of, and was being represented by the Local for approximately 2 months when he was laid off on October 20. As a union member, he was entitled to the same protection and representation by the Union with respect to his terms of employment as was afforded to the other union members in the terms and conditions of their employment. The Union, as Seals' representative, had almost 2 months in which to countermand its decision that he was not entitled to any seniority prior to August 24. Under the circumstances, its failure to act, which ultimately resulted in Seals' layoff on October 20, is additional indication that the Union was discriminatorily motivated. "A wide range of reasonableness must be allowed a statutory bargaining represent- ative in serving the unit it represents, subject always to the complete good faith and-- honesty of purpose in the exercise of its discretion.. ." 29 Moreover, "The [statutory] representative is clothed with power not unlike that of a legislature which is subject to constitutional limitations on its power to . . . discriminate against the rights of those for whom it legislates and which is also under an affirmative consti- tutional duty equally to protect those rights." 30 Therefore, "the fair interpretation is that the organization chosen to represent a craft is to represent all of its members, the majority as well as the minority, and it is to act for and not against those whom it represent." 31 Finally, the Respondent Unions assert as a further defense that this proceeding is barred by the limitation provisions of Section 10 (b) of the Act. Section 10 (b) of the amended Act establishes a 6-month period of limitations upon the filing of charges. It is contended that the determination to ascribe an August 24 seniority date to Seals occurred more than 6 months prior to the filing of the charges against the Local on March 26, 1954, and the International on June 1, 1954. This argument is based on the premise that the unfair labor practice occurred on or about August 24, when the Company and Union decided that Seals' seniority should be computed as of that date. This contention is untenable because the unfair labor practice did not occur when the Union and Company agreed on the August 24 seniority date, but rather, when it was applied and given effect to in the layoff of Seals on October 20, 1953, which is well within the statutory limitation of Section 10 (b).32 H. THE REMEDY As Seals, who was discriminatorily laid off on October 20, 1953, was restored to his job on May 10, 1954, no order of reinstatement is necessary. It will be recom- mended that the Respondent Unions notify in writing both the Company and Seals that they will not insist that Seals' seniority be computed beginning on August 24, 1953, when he returned to the bargaining unit. Furthermore, it will be recommended that the Respondents jointly and severally, make whole Seals for any loss of pay suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his layoff on October 20, 1953, to May 10, 1954, when he was recalled to work from his layoff, less his net earnings, if any, during such period. Crossett Lumber s Whether "length of prior service" includes or excludes time in a supervisory position is not here decided. N Ford Motor Company v. Huffman, supra, at page 338. OD Steele v. Louisville and Nashville Railroad Co., 323 U. S. 192, 198. a Id. at page 202 ; Rockaway News Supply Company, Inc., 94 NLRB 1056, 1059. n Potlatch Forests, Inc., 87 NLRB 1193, 1210, 1211; Pennacoven, Inc., 94 NLRB 175 at 191, 192; North East Texas Motor Lines, Inc., et al., 109 NLRB 1147; N. L.. R. B. v. McGraw and Co., 206 F. 2d 835, 839 (C. A. 8). 1 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, 8 NLRB 440. Back pay shall be computed in accordance with the Board's usual policies. F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the foregoing, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Bowen Products Corporation is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America, CIO, Local 611, and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, are labor organiza- tions within the meaning of Section 2 (5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Charles L. Seals, thereby encouraging membership in Respondent Unions, Respondent Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By attempting to cause and causing Respondent Company to discriminate against Charles L. Seals in violation of Section 8 (a) (3) of the Act, Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. . [Recommendations omitted from publication.] United States Rubber Company and Textile Workers Union of America, CIO, Petitioner. Case No. 10-RC--074. .August 16, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Edwin R. Hancock, hearing .officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of all of the Employer's production and maintenance employees at its Shelbyville, Tennessee, plant, with the usual exclusions. The Employer and the Petitioner agree, basi- 113 NLRB No. 80.