International Association of Machinists

INTERNATIONAL ASSOCIATION OF MACHINISTS 627 International Association of Machinists, Aeronautical Industrial District Lodge 727 and Local Lodge 758, AFL-CIO and Local 183, American Federation of Technical Engineers, AFL-CIO and Menasco Manufacturing Company, Party to the Contract. Case No. 21-CB-1079. April 6, 1959 DECISION AND ORDER On November 19, 1958, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a sup- porting brief.' Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modifications. We agree with the Trial Examiner that the Respondents violated Section 8(b) (2) and (1) (A) of the Act by maintaining in effect their contract with Menasco Manufacturing Company which con- tained seniority provisions whereby employees with at least 1-year seniority who transferred out of the bargaining unit represented by the Respondents to a unit not represented by any union were per- mitted to retain their seniority, whereas employees with the same seniority who transferred into a unit represented by another union lost their seniority, and also whereby the Respondents were given a veto power to determine whether the seniority thus lost by the latter employees should be restored.3 We further agree with the ' As the record, exceptions, and brief adequately present the issues and positions of the parties herein, the Respondents' request for oral argument is hereby denied. 2 The Respondents except to the Trial Examiner's denial of their motion to dismiss the complaint. They maintain that, as the complaint put in issue the validity of their agree- ment with Menasco Manufacturing Company, the latter was a necessary party-respondent to the proceeding. We find no merit in the Respondents' contention and accordingly overrule their exception. Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17, 53 ; Inter- national Union of Operating Engineers, Local 12, etc. (Associated General Contractors), 113 NLRB 655, 661. 3 Pacific Intermountain Empress Company, 107 NLRB 837. 123 NLRB No. 78. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner that the Respondents violated Section 8 (b) (2) and (1) (A) of the Act by causing Menasco to deny employment in viola- tion of Section 8(a) (3) of the Act to James S. Gibbs, Triness F. Light, and Joseph A. Madison in the unit represented by the Re- spondents. In so doing, however, we find that these employees were discriminated against as a direct result of the application and en- forcement of the seniority provisions of the contract. The pertinent facts relating to the discrimination may be briefly stated, as follows : At various times in 1955 and 1956 employees Gibbs, Light, and Madison transferred from occupations in a unit for which the Respondent was the exclusive bargaining agent to a job of process engineer in a unit represented by American Federa- tion of Technical Engineers. At the time of the transfer, each of the three employees had acquired in excess of 1-year seniority in the unit represented by the Respondent. On March 14, 1958, Gibbs, Light, and Madison were among a group of process engineers who were to be laid off by the Company for lack of work. On separate occasions before the effective date of the layoff, Gibbs and Madison ;accompanied by a representative of the Engineers met with repre- sentatives of the Company and the Respondents and requested that - the three employees be permitted to "bump back " into the Respond- . ents' unit. It appears that these employees had greater seniority ,than other employees then occupying jobs in the Respondents' unit. At these conferences, the Company expressed willingness to transfer them to the positions in the Respondents' bargaining unit which they had previously occupied and to which they had a right of transfer if their seniority standing with the Company were to be recognized by the Respondents. However, the Company stated that, under its agreement with the Respondents, it could not make such transfers unless the Respondents agreed thereto. This the Respondents re- fused to do . Accordingly, on March 14 , Gibbs, Light, and Madison were laid off. The 1956 agreement, which is more fully set forth in the Inter- mediate Report, provided, in material part, that employees who transferred from the Respondents ' bargaining unit to occupations represented by other unions were deprived of their seniority in the Respondents' unit and therefore could not transfer back to that unit with accumulated seniority in the event of a layoff. The agreement, however, further provided that under specified circumstances the seniority of such transferees could be restored by mutual agreement between the Respondents and the Company. No such restrictions were imposed on employees who had transferred to occupations not represented by other unions. Thus, in the event of a layoff, em- ployees in the latter group could "bump back" into the Respondents' INTERNATIONAL ASSOCIATION OF MACHINISTS 629 unit on the basis of their seniority with the Company from the date of their last hire. It is clear from the foregoing that the three named employees were deprived of their seniority and of their former jobs to which they would have otherwise been entitled had they not been previ- ously represented by the Engineers. Therefore, the net effect of the application and enforcement of the seniority provisions of the con- tract was to penalize the employees for exercising their statutory right to be represented by a union of their own choosing and to dis- courage membership in such union within the meaning of Section 8(a) (3) of the Act.4 Accordingly, we find that the Respondents caused the Company to discriminate against James S. Gibbs, Triness F. Light, and James A. Madison, and that the Respondents thereby violated Section 8(b) (2) and (1) (A) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders the Respondents International Association of Machinists, Aeronautical Industrial District Lodge, 727 and Local Lodge 758, AFL-CIO, their officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Performing, maintaining, or otherwise giving effect to the provisions of any agreement with Menasco Manufacturing Company,, or any other employer, which unlawfully discriminates with respect to the acquisition, retention, or restoration of seniority rights of employees of the said Company or any other employer, or which delegates to the Respondents the right to determine the seniority status of any employee. (b) Causing or attempting to cause Menasco Manufacturing Com- pany, to discriminate against employees in violation of Section 8(a) (3) of the Act. (c) In any other manner restraining or coercing employees of Menasco Manufacturing Company in the exercise of the rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: a Nainm's Inc., 102 NLRB 466 , relied upon by Respondents , is plainly distinguishable. In that case , the granting of seniority credit was not governed by union considerations as is the situation in the present case. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Notify Menasco Manufacturing Company, James S. Gibbs, Triness F. Light, and James A. Madison, in writing, that it consents to the restoration of the said employees' seniority determined on the basis of the employee's latest date of hire with the Company prior to their layoff, and that it has no objection to the exercise by the said employees of their seniority rights, including the right to "bump" employees of lesser seniority in the unit of employees represented by the Respondents. (b) Make whole James S. Gibbs, Triness F. Light, and James A. Madison for any loss of pay suffered by reason of Respondents' action in causing the Company to discriminate against said employ- ees, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at their offices, hiring halls, and meeting halls copies of the notice attached here to marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondents' represen- tatives, be posted by them on receipt thereof and be maintained by them for 60 consecutive days thereafter in conspicuous places in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Twenty-first Region signed copies of the notice attached hereto marked "Appendix" for posting by Menasco Manufacturing Company at its place of business in Burbank, California, in places where notices to employees are customarily posted, if the Company is willing to do so. Copies of said notice to be furnished by the Regional Director, shall, after being duly signed by representatives of the Respondents, be forth- with returned to the Regional Director for such posting. (e) Notify the Regional Director for the Twenty-first Region in writing, within 10 days from the date of this Order, as to what steps they have taken to comply herewith. is In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, AERONAUTICAL INDUSTRIAL DISTRICT LODGE 727 AND LOCAL LODGE 758, AFL-CIO AND TO ALL EMPLOYEES OF MENASCO MANU- FACTURING COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : INTERNATIONAL ASSOCIATION OF MACHINISTS 631 `VE WILL NOT perform, maintain, or otherwise give effect to the provisions of any agreement with Menasco Manufacturing Company, or any other employer, which unlawfully discrimi- nates with respect to the acquisition, retention, or restoration of seniority rights of employees of the said Company, or any other employer, or which delegates to the Respondents the right to determine the seniority status of any employee. WVE WILL NOT cause or attempt to cause Menasco Manufactur- ing Company to discriminate against employees in violation of Section 8(a) (3) of the Act. WE WILL NOT restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a) (3) of the Act. WE WILL make whole James C. Gibbs, Triness F. Light, and James A. Madison for any loss of earnings which they may have suffered by reason of the discrimination practiced against them. INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, AERONAUTICAL INDUSTRIAL DIS- TRICT LODGE 727 AND LOCAL LODGE 758, AFL-CIO, Labor Organizations. Dated------ ---------- By------------------------------------- (Representative District Lodge 727 ) ( Title) Dated------ ---------- By------------------------------------- (Representative Local Lodge 758) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint herein alleges in substance that International Association of Machinists, Aeronautical Industrial District Lodge 727 and Local Lodge 758, AFL-CIO, hereinafter IAM or the Respondent, violated Section 8(b) (1) (A) and Section 8 (b) (2) of the National Labor Relations Act, as amended, 61 Stat. 136, hereinafter called the Act, (1) by attempting to cause and by causing Menasco Manufacturing Company, hereinafter called the Company, to discriminate against three named employees in violation of Section 8(a)(3) of the Act; and (2), by giving effect to contract provisions which discriminated against employees trans- ferring from a unit represented by IAM to a unit represented by another labor organization and accorded JAM veto power over certain seniority rights. On due notice a hearing before the duly designated Trial Examiner was held at Los Angeles, California, on September 22, 1958. All parties were represented and participated in the hearing. The jurisdictional allegations of the complaint were admitted by the Respondent in its duly filed answer, the allegations of unfair labor practices denied. After the evidence had been taken the General Counsel explicated his position orally upon the record. The Respondent thereafter filed a brief. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Menasco Manufacturing Company is a California corporation engaged at its place of business in Burbank , California , in the manufacture of aircraft parts. It annually ships products valued in excess of $50 ,000 to points in States other than California from its plant in California. II. THE LABOR ORGANIZATIONS INVOLVED TAM and Local 183, American Federation of Technical Engineers, AFL-CIO, hereinafter Engineers , are, respectively , labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES On about July 2, 1956 , TAM and the Company executed a 2-year contract covering a unit of employees represented by the former , which provided , inter alia: ARTICLE IV SENIORITY Sec. 1 Basis for Seniority 4.16 An employee who has acquired less than one ( 1) year seniority in the bargaining unit and who moves from an occupation represented by the Union to an occupation in the Company not represented by the Union, and who later is moved back to an occupation represented by the Union, shall have seniority from the date of his move back into the bargaining unit. An employee who has acquired at least one ( 1) year seniority in the bar- gaining unit and who moves to an occupation in the Company not represented by another collective bargaining agent, and who later moves back into an occupation represented by the Union , shall have seniority from the latest date of hire with the Company. An employee who moves into an occupation represented by another col- lective bargaining agent , and who later moves back into an occupation represented by the Union, shall have seniority from the date of the move back into the -bargaining unit. The Company and the Union may by mutual agreement restore seniority to any employee who moves back into the bargaining unit under any of the three categories mentioned above. 4.32 Bumps- . c. An individual in the employ of the Company who had established seniority in excess of one ( 1) year at time of movement to a position outside the bargaining unit shall at time of layoff or release (but not discharge ) be given the opportunity to bump into the bargaining unit (last previously held classification in reverse order) provided he possesses greater seniority than the employee bumped and meets the seniority require- ments as set forth in Paragraph 4.16, complies with the terms set forth in Paragraph 4.21 1 and is then competent to do the work. In addition to the unit of employees represented by TAM, there was a separate and distinct unit represented by Engineers, and other classifications of employees who were not represented by any labor organization. It is not questioned that TAM and Engineers , respectively, were the duly constituted representatives for purposes of collective bargaining of employees in their respective appropriate units. On about March 14, 1958, employees James S. Gibbs , Triness F . Light and James A. Madison , at that time employed in the unit represented by Engineers, were laid off by the Company for lack of work. Each had previously been employed in the unit represented by TAM, and on being laid off in the Engineers unit, attempted to "bump" back into the TAM unit where each had acquired in excess of 1 year in seniority at the time of his transfer into the Engineers unit. At the time this attempt was made the seniority of each "from the latest date of hire with the Company" was greater than that of an equivalent number of employees then employed in the ]AM unit. Had they on leaving the TAM unit I Paragraph 4.21 is irrelevant to a consideration of the issues herein. INTERNATIONAL ASSOCIATION OF MACHINISTS 633 been transferred to job classifications where there was no union representation, their right to bump back into the TAM unit, insofar as we are here concerned, would therefore have been unqualified, but because they had been transferred instead into a unit of employees represented by another labor organization, their previously acquired seniority was wiped out and could be restored, thus enabling them to bump back into the TAM unit, only by mutual agreement of the Company and TAM. Obviously, this gave TAM veto power over the retention-or restora- tion-of seniority which would enable them to continue in the employ of the Company. When they applied to the Company for continued employment in the TAM unit, they were told by the Company, in the presence of an TAM repre- sentative, that under the Company's contract with the TAM they could exercise their bumping privileges only if this was requested by the TAM. This was not strictly according to the wording of the contract inasmuch as "mutual agreement" did not necessarily imply a "request" by either party, but inasmuch as the Com- pany was willing to continue Gibbs, Light, and Madison in its employ in the TAM unit, and the JAM had knowledge of that willingness, and there was no question of their competency, the only reasonable inference to be drawn from the evidence is that these three employees would have been permitted to bump back into positions in the TAM unit except that TAM withheld its consent, thus exercising its veto power under the contract.2 Pursuant to TAM's withholding of its consent that the seniority of the three employees be "restored," the latter were discharged, i.e., their layoff in the Engineers unit became, in effect, a discharge. JAM's position appears to be that the three employees in question having transferred to a bargaining unit represented by Engineers, were thereupon subject to the contract existing between the Company and Engineers. And indeed they were as long as they were employed in that unit. That contract provided only for departmental seniority, and the employees at the time of their layoff did not have departmental seniority, though their overall seniority with the Company, including that acquired as constituents of the TAM unit, if credited, would have made them senior to some employees retained in the Engineers unit. In short, their employment in the Engineers unit was governed by Engineers' contract with the Company, and their employment in the said unit was terminated according to the terms of that contract. But they had certain residual employment rights by virtue of their prior employment in the TAM unit and derived from the TAM contract, and it is with these rights, and not their rights under the Engineers' contract, with which we are here concerned. As conceded by the General Counsel, had the TAM contract provided that employees transferring from the TAM unit would be deprived of seniority acquired in the TAM unit, there would be no issue. The same would be true had the contract provided that seniority previously acquired would accrue to all employees transferring from the TAM unit who later returned to the said unit. In other words, the TAM through its contractual relationship with the Company, might lawfully have protected the seniority rights accruing to constituents of the unit it represented. But granting the accrual of seniority on their transfer to a classi- fication of employees without union representation, while denying its accrual on transferring into units represented by other labor organizations, placed an obvious and substantial restraint on the transferee's right to seek union representation in whatever category of employment he found himself. The fact that TAM and the Company by mutual agreement may restore previously acquired seniority to a transferee from the TAM to a unit represented by another labor organization, thus enabling the transferee to bump back into the TAM unit, clearly does not serve to remove the discrimination and therefore the unlawful restraint, inasmuch as either TAM or the Company, by refusing its consent, may deprive such an employee of seniority entitling him to continued employment, whereas under the contract neither TAM nor the Company can exercise such veto power over the seniority, and therefore the bumping privileges, if any, of a transferee to a category of unrepresented employees. It is found that as a party to this contract and because of its provisions which discriminate with respect to seniority against employees transferring from the TAM unit to units represented by another labor organization, and by giving effect to the said provisions, the Respondent has restrained and coerced employees within the meaning of Section 8(b)(1)(A) of the Act, and has attempted to cause and James F. High, an officer of Engineers, testified that the Company stated that it would be "very happy" to "restore" seniority to the three employees in question, thus enabling them to bump into the JAM unit and thereby remain in the Company's employ, but could not do so without a request from IAM. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has caused the Company to discriminate against employees within the meaning of Section 8(a)(3) of the Act, thereby violating Section 8(b)(2) of the Act. It is equally clear that IAM's action in refusing or withholding its consent to the restoration of Gibbs', Light's, and Madison's seniority which, had it not with- held its consent, would have enabled them on the termination of their employment in the Engineers unit to bump back into the IAM unit in which they were pre- viously employed, caused the Company to discriminate against these employees in violation of Section 8(a) (3) of the Act. These employees were denied em- ployment not for "failure to tender dues and initiation fees uniformly required," but because at the time of their layoff they were employed in a unit represented by a labor organization other than the IAM. Had they at that time been em- ployed in a classification without union representation, under IAM's contract with the Company they would not have been discharged but would have bumped back into the IAM unit and thus retained employee status. As it was, the Company was willing to restore their previously acquired seniority to these employees thus enabling them to continue their employment as constituents of the IAM unit, but the IAM exercised its veto power under the contract which required "mutual agreement" for the restoration of the requisite seniority. Such action cannot be sanctioned, for that provision of the contract which requires mutual agreement for the restoration of seniority enabling the employee to retain his employment status, in effect gives the Respondent veto power in a matter of seniority and is therefore invalid. The Board in Pacific Intermountain Express Company, et at., 107 NLRB 837, held unlawful a provision in a collective-bargaining agreement which delegated control of seniority to a labor organization, and has since adhered to that position. Kramer Bros. Freight Lines, Inc., et at., 121 NLRB 1461. What constitutes "delegated control" may, in some cases , present an interesting ques- tion,3 but there can hardly be any question here where the delegation of veto power in a matter of seniority is clear and has been exercised. It is found that by giving effect to that provision of its contract with the Com- pany which requires mutual agreement for the restoration of previously acquired seniority rights to employees who have transferred from the IAM unit to a unit represented by another labor organization, and in effect vetoing the said restoration of seniority rights otherwise accruing to employees Gibbs, Light, and Madison, the Respondent caused the Company to discriminate against the said employees in violation of Section 8(a)(3) of the Act, thereby violating Section 8(b)(2) of the Act. As a party to the contract, and because of the continuing effect of the provision conferring on the Respondent veto power with respect to seniority of persons transferring from the IAM unit to a unit of employees represented by another labor organization, the Respondent has restrained and coerced employees within the meaning of Section 8(b)(1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act, I shall recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent caused the Company to discharge employees Gibbs, Light, and Madison in violation of Section 8(a)(3) of the Act. I shall recommend that the Respondent (1) notify the Company in writing, and furnish a copy of said notification to each of the above-named employees, that the Re- spondent consents to the restoration of the said employees' seniority from the latest date of hire with the Company prior to their layoff in the Engineers unit, 3 See, for instance, Los Angeles-Seattle Motor Express. Incorporated, et al., 121 NLRB 1629, where the Board though reversing its Trial Examiner on other grounds (grounds not urged before the Trial Examiner), left undisturbed his findings that contractual provisions setting up standards for the determination of seniority but leaving to the union the ministerial function of maintaining seniority lists in conformity with the said standards, were not unlawful. MORELLI BROTHERS 635 thereby enabling them to bump employees of lesser seniority in the unit repre- sented by the Respondent; and (2) make each of the said employees whole for any loss of pay they may have suffered by reason of Respondent's action in causing the Company to discriminate against them, according to the Board's usual formula for determination of back pay. F. W. Woolworth Company, 90 NLRB 289. The said back-pay liability shall be tolled 5 days after Respondent serves the written notices as required above. Upon the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Menasco Manufacturing Company is engaged in commerce within the meaning of Section 2 (6) of the Act. 2. The Respondent and Engineers, respectively, are labor organizations within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. By causing Menasco Manufacturing Company to discriminate against em- ployees in violation of Section 8(a)(3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. 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.] Thomas Morelli and Charles Morelli d/b/a Morelli Brothers and Capital Transport Co., Inc. and Local 384, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent. Case No. 4-CA-1708. April 6, 1959 DECISION AND ORDER On January 9, 1959 Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Charging Party and the General Counsel filed exceptions to the Intermediate Report and supporting briefs, and the Respondent filed a reply brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record 123 NLRB No. 80.