Int'l Union, United Automobile, Aircraft, Etc.

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America , AFL-CIO and Amal- gamated Local 4531 and Hugh McRoberts Maremont Corporation and Hugh McRoberts. Cases Nos. 13-CB- 1372 and 13-CA-5409. November 6, 1964 DECISION AND ORDER On March 23, 1964, Trial Examiner David London issued his Deci- sion in the above-entitled consolidated 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 attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent Amalgamated Local 453 filed exceptions to the Trial Examiner's Decision together with supporting briefs. Pursuant to the provisions of 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 McCulloch and Mem- bers Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifi- cations. Chairman McCulloch and Members Leedom and Jenkins agree with the Trial Examiner that the Respondent Amalgamated Local 453, by causing the Respondent Maremont to discriminate against the em- ployees from Central Tool and Die as to their accrued seniority, violated Section 8(b) (1) (A) and 8(b) (2) of the Act and that the Respondent Maremont Corporation thereby also violated Section 8 (a) (3) and 8 (a) (1). All of the above-named Members agree with the Trial Examiner that Local 453, acting through the Unit,2 did not rely in good faith on article I, section 6 of the contract (the "layoff" 'As no exceptions were filed to the Trial Examiner's recommended dismissal of the complaint insofar as it alleged that the International Union had engaged in unlawful conduct, we adopt such recommendation pro forma. 2 The term "Unit" is used hereinafter to refer to Unit 21 of Respondent Local 453. Unit 21 is the administrative division of that Local which has jurisdiction over the Maremont employees involved herein. The Unit has its own officers and administers the collective-bargaining agreement between Local 453 and Maremont. However, officials of Local 453 help to negotiate contracts and have general supervision over the Unit's activities . The Trial Examiner found , and the Board agrees , that Unit 21 is not an autonomous union but an agent of Respondent Local 453 , and that the Respondent Local is responsible for any unfair labor practices committed by the Unit. 149 NLRB No. 48. INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 483 clause) in urging that the employees who moved from Central Tool and Die to Harvey Maintenance and were in the contract unit were not entitled to retain their accrued seniority. They differ, however, as to the basis for finding a violation herein. Member Leedom agrees with the Trial Examiner, and for the rea- sons stated by him, that the Unit was motivated in its conduct by animosity against the affected employees because of their race. Thus, like the Trial Examiner, he believes that the record establishes that the Unit, which was mainly composed of Negro members and officers, harbored resentment against the employees in Central Tool and Die because of the "lily-white" nature of that shop and because of the failure of the Central Tool and Die employees to make any efforts to bring about the employment of Negroes. Because the Unit pressed its position concerning the reduction of the employees' seniority, which position was grounded upon considerations of race, in negotiations with Maremont, and because this resulted in Maremont acceding to the Unit's proposal, Member Leedom would find, in agreement with the Trial Examiner, that the Unit attempted to cause and did cause the discrimination here in violation of Section 8(b) (2) and 8(b) (1) (A) of the Act.3 He would also find that, as the Unit's conduct was based on racial considerations, it has failed to fulfill its duty as ex- clusive bargaining representative to represent all employees in the bargaining unit fairly, impartially, and without invidious discrimina- tion, thus violating Section 8(b) (1) (A).4 Member Leedom further agrees with the Trial Examiner that Respondent Maremont, by ac- ceding to the Unit's unlawful demands, "albeit unwillingly," thereby discriminated against the affected employees in violation of Section 8(a)(3) and (1). Chairman McCulloch would find that the foregoing conduct by the Unit was motivated at least in part by union considerations and to that extent violated Section 8(b) (2) and 8(b) (1) (A).5 He relies on the testimony in the record that over a period of many years em- ployees in Central Tool and Die (including some who are discrimi- natees herein) opposed those who were administering the Unit and frequently supported candidates opposing incumbent unit officials at election time. Thus, Cellini, one of the discriminatees, testified with- out contradiction that he had run unsuccessfully against Octavia 3lndependent Metal Workers Union (Hughes Tool Company), 147 NLRB 1573; Miranda Fuel Co., Inc., 140 NLRB 181. See Galveston Maritime Association, 148 NLRB. 897. 4 I bid. 5 The Radio Officers' Union of the Commercial Telegraphers Union. (A. H. Bull Steam- ship Company) v. N.L.R.B., 347 U.S. 17, 40; N.L.R.B. v. Shear's Pharmacy, et al., 327 F. 2d 479 (C.A. 2) ; N.L.R.B. v. Miranda Fuel Co., 326 F. 2d 172 (C.A. 2) ; N.L.R.B. V. Local 294, International Brotherhood of Teamsters, etc. ( Valletta Motor Trucking Co., Inc.), 317 F.. 2d 746 (C.A. 2). 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hawkins for the position of unit chairman in 1958 and 1961, and that he had supported Ellis in campaigns against Hawkins on other occa- sions. Cellini had also run several times for a place on the bargaining committee. In addition, there is testimony that union officials resented the failure of Central Tool and Die employees to help Hawkins when she was in difficulty with the International Union. Thus, one of the Central Tool and Die employees testified without contradiction that the plant's chief steward told him that "You would contribute noth- ing to Octavia Hawkins' hearing at the time she had her trouble with the International Union ... [and] ... Cellini didn't testify at the hearing when Octavia was suspended, and that Octavia will never forget that, so don't expect any favors." Central Tool and- Die em- ployees ployees were thus, in Chairman McCulloch's view, considered to be the heart of the opposition movement within the Unit and it was this factor which played a prominent part in the Unit's decision to press for the reduction of seniority of employees in Central Tool and Die when they moved to Harvey Maintenance. Chairman McCulloch would, therefore, find that the Unit's use of its position as exclusive bargaining representative to punish employees in the bargaining unit for their dissidence in internal union affairs violated Section .8(b) (2) and 8(b) (1) (A) of the Act.6 Chairman McCulloch would also find that by submitting to the Unit's unlawful demands, Respondent Maremont discriminated against the affected employee in violation of Section 8(a) (3) and (1). Member Jenkins would find, in agreement with Chairman McCul- loch and Member Leedom, that the Unit's treatment of employees in the bargaining unit violated Section 8(b) (1) (A) and (2). But he would do so only on the following grounds. Member Jenkins considers that the evidence herein is insufficient to support a finding that the Unit sought to reduce the seniority of Central Tool and Die employees directly because they were white. He concludes on the basis of the entire record that there was intense hostility between the two political factions in the Unit extending over a period of approximately 15 years, and that, as is usual in such situations, political differences degenerated into personal enmity and these differences were exacerbated by real and imagined grievances. Of significance in this connection is the fact that whites and Negroes participated on both sides of this controversy. Thus, one of the candidates supported for chairman of the Unit by employees in Central Tool and Die, the "lily-white" shop, was a Negro. Further, 6 Chairman McCulloch expressly does not rely on the majority opinions in Hughes Toot Company and Miranda Fuel Co., Inc., supra, footnote 3, in finding a violation. In accord with his position in those cases , Chairman McCulloch believes that the Unit's discrimina- tion against employees in the bargaining unit because of race, assuming such discrimi- nation existed herein , would not in itself be a basis for finding that Respondents violated. Section 8 (b) (2), (1) (A), and (a) (3), respectively. I INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 485 white employees-sat on the unit,bargaining committee which nego- tiated the reduction of seniority of the discriminatees. In, these cir- ,cumstances, Member Jenkins does not find that racial animosities against the transferred employees were the direct cause of the Unit's position at the bargaining table. . Member Jenkins,finds from the evidence that despite the efforts of the faction which was in power in the Unit, Central Tool and Die remained a segregated department in an otherwise integrated plant. When, the employer announced a change of operations which would bring Central Tool and Die employes into Harvey Maintenance, it became obvious that this combined operation would soon be inte- grated. But, because of the history of exclusion of Negroes, they would be lower on the seniority roster, since white employees at Central Tool and Die , had, because of the segregation, benefited in accumulating seniority and would start work at Harvey Maintenance with more seniority and in one instance with 21 years. Member Jenkins finds that, in an effort to obviate this, the Unit sought to de- prive the white employees coming from Central Tool and Die of their accumulated seniority. He notes that the seniority in question related to the right of layoff and recall, and that no effort was made to interfere with seniority rights to vacation or retirement benefits. The latter are personal benefits not related to those of any other indi- vidual, while the former can have meaning only insofar as they affect other employees' jobs. The Unit thus was seeking to vitiate the effects of years of racial discrimination at Central Tool and Die, at the expense of the Central Tool and Die employees. Thus, unlike Member Leedom, Member Jenkins finds that the op- position of the Unit to the transfer of the seniority of Central Tool and Die employees was predicated not on personal animosity to those employees because of their race, but rather on the fact that Central Tool and Die, where these employees had worked, had employed no Negroes. However, in agreement with Chairman McCulloch, and for the reasons given by him, Member Jenkins concludes that the position of the Unit respecting the seniority of Central Tool and Die em- ployees was also related to the latter's dissidence in internal union matters. Although, in light of these facts, the Unit's conduct in seeking to vitiate the effects of years of racial discrimination may be under- standable, this does not, Member Jenkins finds, excuse the Unit's using its status as collective-bargaining representative to deprive certain of the employees it represented of valuable seniority rights, to which these employees would otherwise have been entitled. Such con- duct, Member Jenkins concludes, violated Section 8(b) (1) (A) and 8 (b) (2) on two grounds; first, because it was based on invidious, irrel- 486 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD evant, and unfair considerations, and, second, because it, was based on union considerations. He further finds that the employer 's acquies- cence in such union demands violated Section 8(a) (3) and (1).' THE REMEDY As the Board has found, in agreement with the Trial Examiner, that Respondent Local 453 violated Section 8(b) (2) and 8(b) (1) (A) of the Act and that Respondent Maremont Corporation violated Sec- tion 8 (a) (3) and (1) of the Act, we shall adopt the Recommended Order of the Trial Examiner in order to remedy those violations. However, since a majority of the Board does not agree with the Trial Examiner that the violations herein were directly grounded on the race or color of the discriminatees, we shall not adopt those portions of the Recommended Order based on that finding. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts , as its Order, the Order recom- mended by the Trial Examiner , with the following modifications, and -orders that Respondent Amalgamated Local 453 , International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, its officers, agents, representatives, successors, and assigns and Respondent Maremont Corporation, its officers, agents , successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Eliminate from paragraph A1(a) and B1 (a) of the Trial Examin- er's Recommended Order, from the first indented paragraph in the Notice 8 contained in Appendix A, and from the first indented para- graph in the Notice contained in Appendix B, the phrase "for reasons of color or race." 7 See cases cited in footnote 3, supra. 8The address of Region 13 stated in Appendix A and B of the Trial Examiner 's Deci- sion is amended to read: "219 South Dearborn Street , Chicago , Illinois, Telephone No. 828-7572." - TRIAL EXAMINER'S DECISION - STATEMENT OF THE CASE Upon charges filed by Hugh McRoberts in the above-entitled cases on February 7, 1963, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 13 issued his consolidated complaint, 'dated June 25, 1963 , against Respondents ,, International Union, United Automobile, 'Aircraft and Agricultural Implement Workers of America, AFL-CIO, and Amalgamated Local 453, and ' Maremont • Corporation, -hereinafter referred to, respectively, as the International , Local 453, ands the Company, alleging , that -the' International, and its Local 453, had engaged and were engaging in unfair labor , practices within the meaning ' of Section '8'(b)(1) (A) and 8 (b)(2)' of the Natiohal 'L'abor Relations Act,, herein called the Act. ; The complaint also,allege `s, that the Company had engaged in and was engaging in unfair labor practices within then meaning of Sectidh '8(a)(l)- and (3) "of the Act. The answer of' all three' 'Respondents INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 487 denied that they had engaged in any violation of the Act. Copies of the complaint, the charges, notice of consolidation of cases, and hearing, were duly served upon all parties. Pursuant to notice, a hearing was held on October 14 through 18, 1963, at Chicago, Illinois, before Trial Examiner David London. All parties were represent- ed by counsel and were given full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant and competent evidence. Since the close of the hearing, the General Counsel and Respondent Local 453 have filed briefs which have been duly considered. Motions, upon which ruling was reserved during the hearing, are disposed of in accordance with the findings and conclusions that follow.' Upon the entire record in the case, and from my observation of the demeanor of the witnesses as they testified, I make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT COMPANY Respondent Company is now, and has been at all times material herein, a corpora- tion duly organized and existing under and by virtue of the laws of the State of Illinois. At all times material herein, it has maintained its principal office and place of business at Chicago, Illinois, and various other facilities in the States of Maine, Oregon, California, Ohio, Texas, Pennsylvania, Georgia, Kansas, Michi- gan, New York, South Carolina, North Carolina, Indiana, and Illinois, and is now, and has been at all times material herein, engaged at said facilities in the manufacture, sale, and distribution of automotive replacement parts and related products. During the year preceding the filing of the complaint herein, the Company, in the course and conduct of its manufacturing operations, had a gross revenue of approximately $111 million, of which an amount in excess of $1 million was received for the direct shipment of finished products to points outside the State of Illinois. During the same period, Respondent Company, in the course and conduct of its manufacturing operations, purchased, transferred, and delivered to its Illinois plants, goods and materials valued in excess of $1 million, which goods and materials were transported to said plant directly from States of the United States other than the State of Illinois. Respondent Company is, and at all times material herein has been, engaged in commerce and its operations affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT LABOR ORGANIZATION Local 453 is a labor organization which admits to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. The issue It is the contention of the General Counsel, in substance, that on or about January 1, 1963, Local 453, by its demands and insistence, attempted to cause, and caused, the Company to reduce the departmental seniority of six employees named in the footnote,2 herein called the discriminatees, because they are Cauca- sians, which reason the complaint characterizes as arbitrary, irrelevant, invidious, and unfair, and/or because the discriminatees engaged in union or other protected activities. The complaint also alleges that the Company, upon the demands or insistence of Local 453, reduced the departmental seniority of the six discriminatees for the reasons recited above. B. The nature of the discrimination; the position taken by Local 453 and the Company's ultimate acquiescence therein The events with which we are concerned involve the facilities and operation of the Company's plant in Harvey, Illinois, which, at all times relevant, was divided 1 During the hearing the allegations of the complaint charging that Respondent Inter- national had engaged in conduct violative of the Act were dismissed for lack of proof of an unlawful motive on the part of that Respondent. 2 Hugh McRoberts, Kenneth Morr, Art Cellini, Albert Pompa, Edmund Nowak, and William Faber. Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD into 14 departments:' .Those departments were not housed under one roof,,however-, but were scattered among a: substantial number of buildings bearing various numbers ranging from 1 to 52. One of those departments, known as the central tool-and-die shop, and manned exclusively by members of the white race, including the six alleged discriminatees, was established in 1946 in building No. 44. It remained there, for about 10 years and was then moved, to the easterly third of building No. 2.3 It was housed in that building until December 1961, when the shop was moved to building No. 51, a new building approximately 30, feet from "the main plant," and has since remained there. Upon the transfer of the shop to building No. 51, both the Company and Local 453 ceased' to regard the shop as a separate plant and it became a part of the Harvey maintenance department. - During the period with which we are concerned, and for more than 10 years prior thereto, Respondent International and Local 453 have been the collective-bar- gaining representatives for all of the Company's production and maintenance em- ployees at its plants in Harvey, Cicero, and Chicago, Illinois. Local 453 is an Amalgamated Local Union having approximately 3,200 members, and also represents the employees of other employers. Of its total membership, 52 to 55 percent are Negroes, the remainder being Caucasians and persons of Latin Ameri- can origin. Its last two presidents were Negroes. The organizational structure of Local 453 is divided into employer units, ' each staffed by its own elected officials. One of these units, known as Unit No. 21, governs the affairs of all the approximately 620 production and maintenance em- ployees engaged by the Company at its Harvey facilities, including those employed in the central tool-and-die shop. The membership of Unit 21 was approximately "50-50" white and Negro. Its chairman is, and since 1948 has been, Octavia Hawkins, a Negro. In 1961 9 of its 10 officials were Negroes. In 1962 all its officials were Negroes. Negotiations between the-Company and its employees at Harvey, Cicero, and Chicago are conducted with representatives of the Interna- tional, Local 453, and the unit whose employees are involved. Because the collective-bargaining agreement of December 22, '1960, hereafter referred to as the 1960 contract, covering the employees at all three of the plants last aforementioned, was due to expire on December 1, 1961, the parties met on October 31, 1961, for the purpose of negotiating a successor contract. During the bargaining conference on that day, or prior thereto, the Unions and Unit 21 were notified by the Company that it proposed to transfer all of its production facilities from Cicero to the Harvey plant. David Spear, the Company's vice presi- dent and general manager of the Harvey plant, also informed 'the representatives of the Unions that the Company was going "to discontinue Central Tool and Die as a separate plant and . [have it] become a part of the Harvey plant, . that all the equipment [would] be consolidated into one area" under the supervision of Ben Reich, superintendent of the Harvey maintenance department. Throughout the six negotiation sessions that followed between October 31, 1961, and December 7, 1961, the Company consistently took the position "that both [the Cicero and central tool and die] groups were being transferred into the Harvey plant basically within their job classifications with their work, and that both groups should carry their seniority into the Harvey plant" in accordance with article III, section 1, of the 1960 agreement between the parties which reads as follows: Employees transferred with operations from one plant to another within their job classification shall carry their plant seniority date to the new plant.4 To facilitate the transfer, the Company, on or about October 31, 1961, submitted to the Respondent Unions its written "Procedure for Processing Combination of Cicero and Harvey plants" which specifically provided, inter alia, that "employees in the Cicero and Central Tool operations [would] be reclassified in their jobs 3 The remainder of building No. 2 was occupied by locker rooms and a cafeteria used by all employees of the Harvey plant. Article III, section 1, of the 1960 contract appears to have application only if the operations are transferred "from one plant to another" and , though the central tool-and- die shop was in fact always located on Harvey 's premises and part of its plant, the parties throughout the entire negotiations, consistently, and in accordance with that article, treated that shop as a separate plant and therefore subject to the provisions of article III, section 1. INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 489 according to the closest corresponding Harvey job title. They will be allowed to use their plant seniority within their plants (without and actual bumping taking place) to acquire status in the revised seniority list." At this point a definitive statement must be made concerning the seniority prob- lem. That problem involves departmental seniority only, which is invaluable because it governs layoffs. On the other hand, no one questions the plantwide seniority of employees in central tool and die, which seniority is valuable in the area of vacations, retirement benefits, insurance, etc. With respect to departmental seniority the positions of the Company and Local 453 were in conflict during the negotia- tions, as recited below. During the first several negotiation sessions that followed, Octavia Hawkins, chairman of Unit 21 and principal spokesman for both Respondent Unions at all the negotiations, entered no objection to the Company's proposal other than that the proposed transfer should not be interjected in the negotiations for the new collective-bargaining agreement in which the parties were then engaged. On December 1, 1961, the Company transferred the operations and equipment of central tool and die to the Harvey maintenance department. On December 7, 1961, the parties reached agreement on a successor contract, hereafter referred to as the 1961 contract, without, however, agreeing upon the departmental seniority status of the employees who were involved in the central tool-and-die transfer. Instead, because the, Company had given assurances that no termination of the services of these employees was contemplated within the foreseeable future, it was agreed, on that day, that a resolution of their seniority status would be held in abeyance, that their names on the seniority list would be "red circled," and that when "a layoff occurs, [the parties] would have to reevaluate the situation." On several seniority lists prepared by the Company, as late as November 1962, the names of the six discriminatees still appeared high, but "red circled." 5 Insofar as the record discloses, the parties to the negotiations allowed the matter under consideration to remain at rest until the 1961 contract was about to expire. During the negotiations between the parties in November and December 1962 for a further collective-bargaining agreement, the subject was again discussed but without fruition, until December 7, 1962. On that day total accord was reached on the collective-bargaining agreement for the coming year. With respect to the move of the central tool-and-die shop and the status of the ex-central employees, Hawkins summarized Local 453's position as follows: "In this operation, there was no physical move of the Central Tool and Die operation. The Company went out of the job shop business . Based on this, these people have no right of [departmental] seniority under the contract. They have rights under the contract on the basis of preferential hiring, . . .' pursuant to article III, section 6, of the contract, quoted at length below. After further discussion, Spear, manager of the Harvey plant, reluctantly yielded, saying: "O.K. we'll let you argue it out with your own people. Central tool-and- die people will have seniority from when they moved into the Harvey maintenance department, December 1, 1961." 6 The reductions in seniority demanded by Haw- kins were thereafter interposed on the Company's seniority register, resulting in the loss of departmental seniority by the six alleged discriminatees in periods ranging from 15 to 21 years. The ex-Cicero employees, whose operations were moved to Harvey in the spring of 1962, were all allowed to retain the seniority they had established at Cicero. Counsel for Local 453, in his opening statement at the hearing, stated that it was the Union's position "that the employees at the Central Tool and Die had not been transferred from one plant to another with their job classification . within the terms of [section III, article 1] of the contract," a position he reiterated in its posthearing brief. Instead, Local 453 contends, because the central tool-and-die employees after, their transfer to the Harvey maintenance department on or about December 1, 1961, did not perform some of the work in which s Of the approximately 600 employees listed in order of seniority, McRoberts was No. 7; Morr and Cellini appeared as Nos 12 and 13, respectively. 6 When Seymour Burrows, the Company's personnel manager who attended all negotia- tion sessions, was asked "what, if anything, caused the Company to change its position with respect to whether or not the men from Central Tool and Die should lose their seniority?" he testified: "This was a small part of the total negotiation. We were involved in quite a few other things and as in any negotiations, you relinquish some things and you insist on others , and this at that point in our negotiations was not a matter that we [were] willing to . . . take a strike on in the context of the total negotiations." 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they engaged prior to that date, that "these employees would have to, have their seniority date determined in the Harvey Maintenance [department] from De- cember 1, 1961, the date of their transfer," as prescribed by article III, section 6, of both the 1960 and 1961 contracts. The record, however, is conclusive that section 6 has no application to the transfer under consideration, and was never properly invoked with respect to these six employees. Section 6 has application only with respect to an "employee with plant seniority who has been laid of} because of lack of work." Here, the central tool-and-die employees were never laid off and did not lose one hour of work as a result of their transfer. Indeed, McRoberts, the Charging Party herein, at the time of central's move was working on a part which he completed in the Harvey maintenance department immediately after the move. Though section 6 gives a laid-off employee certain preferential hiring rights at "other plants of the Company," he must apply for such employment and present "notice of layoff within 30 days of lay off." Here the central tool-and-die employees were never given "notice of lay off," nor did any of them make application for employment in "any other plant of the Company " In the case of an employee who is entitled to, and exercises his preferen- tial hiring rights under, section 6, his "seniority in the plant of new hire shall be acquired after the regular probationary period, and he shall be treated - as a new employee in that plant." During the 4-week probationary period, section 6 of the contract prescribes that "the Company shall be free to release or discharge the probationary employee and make its reason available upon request During this probationary period, neither the Union nor the employee shall have recourse to the grievance procedure in case of discharge. Until a probationary employee has acquired seniority, he shall have no reemployment rights in case of lay off." The ex-central tool-and-die employees never served any probationary period in Harvey maintenance, nor were they ever informed that their status during the first 4 weeks following their transfer was as insecure as section 6 imposes The transcript of testimony herein covers 851 pages. A substantial portion thereof is devoted to testimony concerning (1) the work actually performed by the central tool-and-die employees both before and after the move to the Harvey maintenance department, and (2) the discussions at the negotiations between the parties thereto pertaining to that same subject. A detailed review and analysis of all the testimony relating to all the foregoing would unduly prolong these findings. I have, however, carefully reviewed the entire record and conclude, and find, that it abundantly establishes that the employees transferred from central tool and die to Harvey maintenance performed the same "operations" before and after the move within the contemplation and scope of article III, section 1, of the contract. Each ex-central employee testified credibly that he did the same work after the move as he had done in central prior to the move and, insofar as the record discloses, each continued to receive the same pay. They repaired the same dies, worked from the same blueprints, made the same parts for dies, continued to replace broken or worn parts, and did the same type of maintenance work they did earlier at central. Practically all the machinery and equipment located in central's quarters was moved to, and thereafter used by, the ex-central employees in the Harvey maintenance department. Hugh, foreman in central, continued in the same capacity after the move. In 1960 and 1961, about 70 percent of the time of the central tool-and-die employees was spent on maintenance work, repairing dies and replacing their parts, grinding and repairing broken machines; 30 percent of their time was devoted to making new tools, jigs, and dies. Since the move to Harvey maintenance, the ex-central tool-and-die employees continued performing all of the work afore- mentioned except that, up to the time of the hearing, the Company deemed it more economical and advisable to have practically all of its new dies made by another manufacturer. With respect to this phase of their work, the record establishes that in 1961, central tool-and-die made 14 new dies. In `1962, after - the move, the ex-central. employees continued to make new tools and jigs, but made only one new die. During the negotiations, however, it was made clear to the Unions that the Company.might resume making new dies. Having found that all the alleged discrithinatees were "employees transferred with operations"' from central, tool and die to Harvey . maintenance as required by article III, section 1, of the 1960 contract,7 I further find' that, in substantial compliance with said section 1, they were also transferred, "within their job classification." . , . , , ., 7 An identical clause was incorporated in the' 1961 contract.' "' ' INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 491 Thus, the classification of Cellini and McRoberts, as tool-and-die makers, re- mained the same for both men after the transfer, as did Nowak's classification as tool-machine operator. Faber was classified as a machinist in central tool and die and remained a machinist in Harvey maintenance. Pompa was classified as a tool- and-die maker prior to the move and remained in that classification for the first week after the transfer to Harvey maintenance. At that time, he was called to the personnel office where, in the presence of Hawkins, Cellini, and McRoberts, he was told that the number of tool-and-die makers would be reduced from five to three 8 and that one of these three would have to work on the night shift. Cellini and McRoberts, having greater seniority, chose the day shift. Pompa was offered the night shift and, after thinking about it for a couple of days, decided to take the lower classification as machinist in order to stay on the day shift. Other than not making new dies, a task in which the Company was no longer engaged, Pompa continued to engage in the same repair and maintenance work in Harvey maintenance as he did in central tool and die. While Morr testified that prior to the move he was classified as a "machinist welder," the only applicable welder classification found in either the 1960 or 1961 contracts was that of "welder (maintenance)," the classification which he maintained in the Harvey maintenance department. Though some of the employees from Cicero were reclassified upon their transfer to Harvey, all of them retained their seniority. Here, as the Board concluded in its original decision in Miranda Fuel Company, Inc., 125 NLRB 454, 455, "[t]he record . .. discloses, and [I] find, that [article III, section 6] was not by its terms applicable to [the central tool-and- employees], and thus the reduction in their seniority, though accomplished under the guise of contractual agreement, was nevertheless not the result of the Union's performance of a purely ministerial act, but in fact was effectuated through concession by the Company to a position taken by the Union which, although purportedly in reliance on the contractual provision, nevertheless was outside the scope" of that section. By reason of all the foregoing, I find and conclude that the six alleged discrimi- natees were "employees transferred with operations from one plant to another within their job classification [and therefore entitled to] carry their [central tool and die] seniority date to the [Harvey maintenance department]" as contemplated, and specifically prescribed, by article III, section 1, of the contract. Local 453, however, also seeks to justify its resistance to the Company's an- nounced plan to transfer these employees with their central tool-and-die seniority on the ground that its request "that the Company show what portion or percentage of the Central Tool and Die operations was transferred to Harvey was never met." There is no merit to this contention. Spear informed the Union's representatives over and over again during the course of the entire negotiations in both 1961 and 1962, that these employees would continue to do the same work with the possible, but not certain, exception of making new dies, as heretofore found. When making these statements, he was never challenged by any union representative. During the negotiations, the Company brought in records reflecting "in dollars and hours and percentages" the work done by the central tool-and-die employees and also furnished the Union with a "proposed manning table for the Harvey Maintenance Shop." The position of Local 453 with respect to the aforementioned alleged lack of information is not only without foundation, but is in sharp contrast to its position with reference to the right of the Cicero employees to retain their Cicero seniority upon their transfer to the Harvey plant. The only testmony offered pertaining to the right of the Cicero employees to retain their seniority pursuant to article III, section 1, of the contract, was offered by Wayne Miller, the Local's skilled trade representative on its bargaining committee during the course of the negotiations. When asked- "what type of proof was given by the Company to show that the Cicero operations were trans- ferred over with the operations [sic]," he testified several times that' "the proof was evident." Insofar as' the record discloses , the only "proof asked for;" with reference to the approximately 70 Cicero employees who transferred, was their names, a request which the Company complied with by submitting "a list of the people who were manning the operation." When asked whether the Union was "interested in knowing the names of the people who were coming over from Central Tool and Die," -Miller testified that Local 453 was not interested because 81t will be recalled that the Company was then having its dies made' by an outside manufacturer. ' ' • • 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' their names "were evident, we all knew what their names were." 9 And, though he testified that there was further discussion about "the amount of the [Cicero] operations that was being transferred," there is no intimation in his testimony, or in that of any other witness at the hearing, that any documentary evidence, which Local 453 now contends was-demanded and never supplied with respect to the central tool-and-die employees, was ever demanded by the Union with respect to the Cicero employees. This contrast in the treatment of the two groups takes on additional significance in view of the fact that among the Cicero employees who transferred to Harvey were two men, John Leonard and Steve Hardy, who transferred from the Cicero maintenance department to the Harvey maintenance department (Local Un- ion's Exhibit No. 8). Insofar as the record discloses, not a single inquiry or request was made of the Company to furnish Local 453 with any information or records to indicate whether or not article III, section 1, of the contract entitled these two men to retain their Cicero seniority. Notwithstanding such lack of interest, Union's Exhibit No. 8 establishes that these two ex-Cicero men, by reason of their transfer to the Harvey maintenance department, are now numbers 1 and 2 on that department's seniority roster, replacing McRoberts and Cellini in those slots, and relegating the latter two men to numbers 8 and 9 on that register This, notwithstanding the fact that McRoberts and Cellini had considerably more seniority at central tool and die than Leonard and Hardy had in the Cicero mainte- nance department. There is also evidence in the record which throws great doubt on the sincerity of the Union's demand for more information concerning the central tool-and-die transfer than it was given by the Company at the bargaining conferences. Union Committeeman Miller testified that since 1951 he has been employed at Harvey as a "machine repairman." During the course of his employment, he had occasion to visit the central tool-and-die department and "saw what kind of machines they ran and what they did." He also testified that he has "been able to observe the people who used to be in Central Tool and Die since they came over to Harvey Maintenance," and that they now work on "the same kind of machines that they were working on at Central Tool and Die." In view of his status as a skilled trade representative on the Union's negotiation committee,10 the com- plete absence of testimony by him, either at the bargaining conferences or at the hearing before me, that the work of the ex-central tool-and-die employees was different after their transfer to Harvey maintenance, is highly significant. C. The reason for Local 453's conduct Having determined that all the discriminatees were entitled to retain in Harvey maintenance the departmental seniority status they achieved in central tool and die, as prescribed by the collective-bargaining agreement, we turn next to the critical contention of the General Counsel that they lost that status for the reasons, and in the manner, alleged in the complaint. Negroes constitute between 52 and 55 percent of the membership of Local 453, and "about 50" percent of the membership of Unit 21 employed at the Harvey plant. Notwithstanding this proportion between the two races, no Negroes were ever employed in central tool and die from the time that department was created in 1946. This gross disparity between the races caused Hawkins and other Negro members of Unit 21 great concern and generated their deep resentment by reason of which that department was repeatedly referred to by Hawkins and other Negroes as the "lily white" shop. Hawkins testified that early in her reign as chairman of Unit 21, Hillard Ellis, then engaged as organizer for Local 453, asked her to use her "influence ... to break through in Central Tool and Die, [the] lily white shop," and that it became one of the "fundamental principles" of the Union to do whatever could be done to "bring about a change from this kind [of] situation." 11 In 1949 Ellis, a Negro, then the president of Local 453, discussed union affairs with Hawkins and recommended that Cellini be brought into the leadership of 9 At one point in his testimony , when Miller was asked "what kind of proof" the Union wanted with reference to the central tool-and -die employees, he answered: "I had nothing specific in mind and I don't believe anybody else did." 10 The work of the central tool-and-die employees was classified as skilled trade. 11 Though Hawkins was able to induce the Company in 1956 to engage in a skilled trade training program , apparently in the hope that it might bring Negroes into the higher classification, it brought about no change in the staff of central tool and die. INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 493 that organization. Hawkins objected strenuously, stating that Cellini "was no damn good,", that he was from "the lily white shop, no Negroes there, and [he wasn't] doing anything about that problem." In the spring of 1953, prior to the election of union officials, Hawkins and Ellis attended a union caucus and participated in a discussion to determine whom the participants in that caucus "were going to support and bring forward for leadership in the Local Union." Ellis again urged that "more whites" should be brought into the leadership of Unit 21. Hawkins expressed disagreement with that view stating, "that they [the whites] were not coming forward and there [was] no point in putting the round pegs in the square holes." With specific reference to Cellini, she stated that she "didn't want to hear anything about him," that he was a white man in central tool and die where there were no Negroes and that he was not the type of man to become part of the leadership. In the spring of 1956, Hawkins presided at another meeting to discuss candidates for an approaching Unit 21 election. During that meeting, when Cellini's name was raised, Hawkins stated that she could not support him because, inter alia, he "worked in Central Tool and Die, . . . a lily white plant," and that he had done nothing "to eliminate the situation." In February 1958 Ellis and Hawkins attended a "Negro History Week Celebra- tion" following which Ellis drove Hawkins to her home. During a discussion between them at that time concerning "problems" that had been called to his attention there was an incident that involved "a number of southern whites working in the Cicero plant [who] had been involved in a horseplay act." Hawkins stated she "would be glad if all those hill billies would get thrown out of the plant." Ellis protested that "as Negroes, [he and she] couldn't take a position of trying to say that [they] would be against any particular group." Hawkins stated that there were "guys right here in Chicago that [were] just as bad," and that "[his] boy, Celhni, [though] not a hill billy, . [was] still there doing the same thing in . the lily, white shop, and doing nothing about it." After further discussion between them, Ellis conceded to her that neither one could con- vince the other on his or her approach to this racial problem, but that because she was "in the majority, it would be pretty rough." He concluded the conversation by accusing her of "certain anti-white feelings, that instead of taking an individual on [his] merits, she lump[ed] them all in one class," a view with which he did not agree. At a caucus of Local 453's bargaining committee prior to the negotiation sessions with the Company in November or December 1959, when operations at central tool and die were under discussion, Hawkins stated that "no certain little groups [were] going to run the bargaining committee" and specifically referred to "Cellini and that group of bastards over in Central Tool and Die." For a number of years prior to 1961 there were competing political factions within Local 453. Hawkins, chairman of Unit 21 since 1948, has been the undis- puted leader of one of the factions since that time. Ellis, former president of Local 453, was the leader of the other faction. Some of the employees, under the leadership of Cellini, were supporters of the Ellis -faction. Ellis, once or twice during his term as president of Local 453, filed charges with the International against Hawkins, one of which "led to her expulsion from the Union." In December 1961, during the contract negotiations, Andrew Garosz, then em- ployed as a tool-and-die maker in' central tool and die, and the Union's shop steward in that department, was engaged in a conversation with Alma Settles, chief union steward for the entire Harvey plant. Garosz inquired how it had come about that Ed Nowak, the representative of the central tool-and-die employees on the Union's bargaining committee, was not asked to be present at the next bargaining meeting with the Company. Settles replied that the "Union decided Wayne Miller," who was not employed in central -tool and die, was the only one "that was going to be there" When Garosz complained that he did not think that was right, Settles, a Negro, replied that the employees in central tool and die "had nothing to do with [the employees in] the rest of the plant before," that they had contributed- nothing to Hawkins' "hearing at the time she had her trouble with the International Union . . . and that there was no love for Central Tool and Die because [they] never cared to have anything to do with the other employees." She also informed him "that Art Cellini didn't testify at the hearing when [Hawkins] was suspended and that [she] will never forget that." [Emphasis supplied.] Cellini also was active in the politics of both Local 453 and Unit 21, having served as chairman and vice chairman of the Unit, and as a member of the Local's bargaining committee in 1954, 1956,, and 1961. Three or four times 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the early 1950's and 1961, he was an unsuccessful candidate for Unit chairman against Hawkins. Cellini always ran with the support of Ellis, and Ellis always had the support of Cellini, both being in opposition to Hawkins. In the years Cellini was not a candidate for unit chairman, he supported candidates who opposed Hawkins. The charges in this proceeding were filed on February 7, 1963. From a state- ment by counsel for Local 453 at the opening of the hearing, the ensuing colloquy, and testimony during the hearing, it appears that on or about March 15, 1963, the Board's Regional Director advised the Charging Party that he had refused to issue a complaint based on these charges. It further appears that on appeal from that ruling, the General Counsel of the Board overruled the Regional Director and authorized issuance of the complaint presently before me. On May 19, 1963, prior to the issuance of the complaint, Hawkins called and presided over a special meeting of Unit 21 to consider "the seniority of the Central Tool and Die Workers and the overruling of the Labor Board [Director] by the General Counsel." Hawkins, in addressing the members present at that meeting, told them that for a period of "100 to 150 years ... [their] forefathers had been sold as slaves or cattle, like sticks of furniture, . and that Central Tool and Die was lily white, . even the janitor was white." She then asked the assembled group, collectively: "Are there any Negroes working at Central Tool and Die9 . . . Any Puerto Ricans? . . . How about Mexicans?", and paused for an audience reply after each of these three queries. To each question the audience answered in loud chorus: "NO." Following her plea that the coming "trial" would be of great expense, a motion was adopted to have the Union pay those expenses.12 Having found that the six central tool-and-die employees with whom we are principally concerned were entitled under the collective-bargaining agreement to re- tain their earned departmental seniority upon their transfer to Harvey maintenance, I further find that Local 453 caused the Company to reduce their seniority because they are Caucasians. The findings on which my conclusions rest are based in large part on uncontradicted testimony. Where conflict exists, it has been resolved by the demeanor of the respective witnesses as they testified, and the inherent probability or improbability of the particular aspect of their testimony, when weighed against other testimony, which is undisputed. The record establishes conclusively that the continued existence of central tool and die from 1946 as a "lily white" shop was the source of great resentment in Unit 21 and particularly on the part of Hawkins. The reasons why, or how, this complete disparity in the races came about, or was allowed to continue, were not disclosed by the record. However, even if it be assumed, arguendo, as Hawkins apparently assumed, that it came about and was allowed to continue only because of racial prejudice and discrimination against Negroes , that unfortunate and deplor- able circumstance is of no avail to Local 453. "Though the [Company] may have misconducted itself, [that conduct] has a locus poenitentiae." N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 873 (C.A. 2). "Moreover, one illegality should not excuse another. The public interest lies in labor peace, and [is] endan- gered by both. The remedy here was in the filing of charges before the Board when the claimed illegality came to light, not in illegal self-help. Superior Derrick Corp. v. N.L.R.B., 273 F. 2d 891, 893 (C.A. 5); Seafarers' International Union, etc. v N.L.R.B. 364 U.S. 816"; N.L.R.B. v. Plumbers Union of Nassau County, Local 457 etc. (Bomot Plumbing & Heating), 299 F. 2d 497, 501 (C.A. 2). Whatever doubts, if any, may once have existed, it is now universally agreed that the Act imposes on a statutory bargaining agent the duty and responsibility to "fairly and impartially" represent all the employees for which it is a representa- tive, without hostile discrimination on the basis of race, color, or creed. The Wallace Corporation v. N.L.R.B., 323 U.S. 248, 255; Steele v. Louisville and Nashville R.R. Co., 323 U.S. 192, 202; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 US. 210; Syres v. Oil Workers, 350 U.S. 892, reversing 223 F. 2d 739, (C.A. 5). This does not mean, as the Supreme Court pointed out in the Steele case, that a statutory representative "is barred from making contracts which may have unfavorable effects on some of the [employees] repre- sented." Nor does it mean that Local 453 herein was barred from insisting, in good faith, for a reasonable interpretation of the contract which might or would result in the loss of departmental seniority by the ex-central tool-and-die em- ployees. What it does mean, as a majority of the Board concluded in Miranda 12 During the hearing, ruling was reserved on the motion of Local 453 to strike all testimony pertaining to the meeting of May 19, 1963. The motion is hereby denied. INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 495 Fuel Company, Inc., 140 NLRB 181, 185, is that Section 8(b)(1)(A) and 8(b)(2) of the Act "prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee . in matters affecting their employment . . . upon considerations or classifications which are irrelevant, invidious, or unfair." It is only if Local 453 caused the Company to reduce the seniority of these employees "in violation of the outstanding contract [and by conduct] otherwise arbitrary and without legitimate purpose" that it could be found guilty of violating Section 8 (b) (1) (A) and (2) of the Act and the Company guilty of violating Section 8 (a) (1) (A) and (3).13 Although divergent views concerning the scope of Section 8 (1,) are held by members of the Board,14 the judiciary,15 and other legal scholars,1B no useful purpose would be served by an extensive discussion of the subject by me. As a Trial Examiner, I must apply Miranda Fuel as Board law unless, and until, the Supreme Court should decide to the contrary, Insurance Agents' International Union (The Prudential Insurance Company of America), 119 NLRB 768, reversed on other grounds, 260 F. 2d 736, and 361 U.S. 477. I note, however, that the discrimination in Miranda Fuel, supra, was nonracial and, in the view of the Board's minority, not invidious. I note too that neither the Board nor the Supreme Court has decided whether a statutory representative's duty under Section 9(a) of the Act not to discriminate racially is accompanied by a Section 7 right of employees to be free from such invidious discrimination by their statutory representative. 17 If such right exists (and the Board's majority in Miranda Fuel is authority for the proposition that it does), the violation of Section 8(b)(1)(A) in the instant case is clear, regardless of my question concerning the merit of my 8(b) (2) finding which may arise from the majority opinions in N.L.R.B. v. Miranda Fuel Co., 326 F. 2d 172 (C.A. 2). Having found that the central tool-and-die employees were entitled under the contract to retain their departmental seniority upon their transfer to Harvey mainte- nance I further find that Local 453's insistence that they be deprived of that seniority under guise of article III, section 6, of the contract was an arbitrary, invidious, and unfair exercise of its function and power as a statutory representative of those employees. Local 453 offered no credible, probative evidence, either during the negotiations or in the hearing before me, to rebut or negate the constant contention of the Company during the negotiations, or that of the General Counsel at the hearing, that the transfer under consideration fell within the scope of article III, section 1 , of the contract. Nor is there any merit to Local 453's contention that its conduct was justified because the Company failed to "show what portion or percentage of the Central Tool and Die operation was transferred to Harvey." Not only was this informa- tion already in the possession of the Local as has heretofore been pointed out, but the record establishes conclusively that the Company repeatedly made it clear during the negotiations that all of those operations were being trans- ferred. The record fails to disclose that the Company at any time refused to produce any specific information or record requested by the Union with one possible excep- tion, a vague request which could only be, and was, construed as a demand for records of the work performed in central tool and die as long ago as 1946, when the department was created. Not only was it impossible for the Company to produce such records because they no longer existed, but, even if available, their contents would have had no relevance, nor would they have shed any light ' Of. Houston Typographical Union No. 87, eto. (Houston Publishing Company, at al.), 145 NLRB 1657; United States Trucking Corporation, 145 NLRB 225; The New York Times Company and Publishers' Association of New York City, 144 NLRB 1555. 14 See the majority and dissenting opinions in Miranda Fuel, supra. 13 Upon review of Miranda Fuel by the Court of Appeals for the Second Circuit, 326 F. 2d 172, Judge Medina agreed with the Board's minority, Judge Lumbard found that there had been no violation of Section 8(.b) (2) and that under the particular facts he need not reach the 8(b),(1)(A) issue, while Judge Friendly, dissenting, found that there had been a violation of Section 8(b) (2) and, therefore, that he need not reach the 8(b) (1) (A) issue. See also Stout V. Construction Laborers Council, 226 F. Supp 673. 16 Cox, "The Duty of Fair Representation," 2 Villanova L. Rev. 151 ; Sovern, "The N.L.R.A. and Racial Discrimination," 62 Col. L. Rev. 563; Blumrosen, "The Worker and Three Phases of Unionism," 61 Mich. L. Rev. 1435, 1505; Wellington, "Union Democracy and Fair Representation: Federal Responsibility in a Federal System," 67 Yale L.J. 1327. 17.See Humphrey v. Moore, 375 U.S. 335, 344, 84 S. Ct. 363, 369, which leaves open the question whether a breach of the duty of fair representation constitutes an unfair labor practice under Section 8(b). 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the nature of the operations of that department 15 to 16 years later in 1961 and 1962. And, in considering the sincerity of this defense and the effect that this alleged failure to produce records had on the negotiations, it should be kept in mind that the Union apparently had no such interest in the records of the Cicero operations. There is other evidence in the record which aids in appraising the sincerity of the Local's claim that it was only after the Company failed from December 1961 to December 1962 to produce records showing "what portion of percentage of the Central Tool and Die operation was transferred to Harvey" that the Local insisted upon the reduction in seniority under consideration. James Smith, recording secretary of Unit 21, testified that "after the 1961 bargaining sessions when [the] names were red-circled," a report of the bargaining committee was submitted to a meeting of the Unit. He further testified that at this meeting, "the conclusion was reached by the membership, after that report, that these people weren't entitled to the seniority that they had maintained at the Central Tool and Die plant." When asked to fix "the month" of that Unit meeting, Smith testified that "it might have been in January 1962." [Emphasis supplied.] On the entire record and my observation of the demeanor of Hawkins during the hearing, I am unhesitatingly convinced and find that she bore great resentment against the employees in central tool and die, and against Cellini in particular, because that shop was "lily white," and that she was determined to do-something about that state of affairs. Indeed, according to her own testimony, since early in her reign as chairman of Unit 21, which began in 1948 and continued to the time of the hearing, it became one of the "fundamental principles of [Local 453] . to persuade, . . . if possible," or to do whatever could be done "to bring about a change from this kind of situation." Persuasive powers apparently having failed, I am convinced and find that Hawkins, in behalf of Local 453 and as its principal spokesman during the 1961 and 1962 negotiations, seized upon the central tool-and-die transfer as a subterfuge by which the Local's objective aforementioned might be achieved. The record also establishes that Hawkins has otherwise been deeply and actively involved in the Negroes' demand for racial equality. Commendable as her efforts surely are, her zeal in that endeavor cannot permit her resort, as a representative of Local 453, to unfair representation of, and racial discrimination against , whites which is proscribed by the Act. Here I am convinced that Local 453's insistence that the employees of the central tool-and-die shop lose their departmental seniority was based not on a reasonable interpretation and application of the collective-bar- gaining agreement, but was arbitrarily imposed as retribution for that department's existence as a "lily white" shop.'8 Such considerations, "based on race alone are obviously irrelevant and invidious. Congress plainly did not undertake to authorize the bargaining representative to make such discriminations." Steele v. Louisville and Nashville R.R. Co., supra. On the entire record, I find that by insisting in bad faith during its negotiations with the Company that the central tool-and-die employees lose their departmental seniority, Local 453 violated Section 8(b)(1)(A) and 8(b)(2) of the Act. I further find that the Company, by submitting to that demand, albeit unwillingly, thereby discriminated against these same employees in violation of Section 8 (a)( I) and 8(a)(3) of the Act. N.L.R.B. v. Star Publishing Co., 97 F. 2d 465.(C.A. 9), enforcing 4 NLRB 498. D. The motion to dismiss - There remains for consideration the motion of Local 453 to dismiss "the charge herein" on the ground "that Amalgamated Local 453 did not negotiate the contract in question nor had anything to do with the things and matters about which the change concerns; so that as a consequence, Unit 21, an autonomous local union that negotiated the collective-bargaining agreement in question and dealt with the seniority question involved in the charge, is not a party herein, though a necessary party." The motion is hereby denied. Both the 1960 and the 1961 contracts under which the transfer of central tool- and-die operations was put into effect (General Counsel's Exhibits Nos. 3 and 4), were entered into, and executed only by, the International UAW and its Amalga- >e Though union political differences with Cellini may also have played some part in Hawkins' determination to deprive him of his departmental seniority by means of the same subterfuge, the record does not justify a finding that such political differences prompted her action against the other central tool-and-die employees. INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 497 mated Local 453. Unit 21 was not a party to either of those contracts although members of that Unit participated in the negotiations. There being no suggestion that either of the contracts was executed without authority to do so, it must be concluded that both contracts, and all other negotiations conducted in connection therewith, were negotiated in behalf of Local 453 by its duly authorized representa- tives, including the representatives from Unit 21.19 General Counsel's Exhibits Nos. 6(a) to 6(1), inclusive, were received in evidence to reflect the negotiations at the 12 meetings of the parties between October 31, 1961, and December 7, 1962. Only 6 of these 12 Exhibits identify the persons present thereat. Of these six, five, General Counsel's Exhibits Nos. 6(c), (e), (f), (j),"and (1) establish that W. Brooks, president, Local 453, and Hawkins, were two of the representatives "present for the .Union" at those negotiations. Fur- thermore, both Hawkins and Brooks testified that they attended all the negotiation sessions, and Local 453's answer admits that both were agents of that Local and acting in its behalf "at all times material herein." In support of its position, Local 453 cites the Board's decision in International Union, United Automobile, Aircraft and Agricultural Implement Workers, et al. (Maremont Automotive Products, Inc.), 134 NLRB 1337. However, instead of holding that Unit 21 was an "autonomous union," as Local 453 now contends, the Board there held "that the Unit 21' negotiating committee and its Chairman, Hawkins, were the negotiators and agents for both Respondents, Local and Interna- tional." Indeed, as footnote 2 of the Trial Examiner's Intermediate Report in that case recites, the parties to that proceeding "stipulated that Unit 21 is not a labor organization." IV. THE REMEDY Having found that Local 453 and the Company have engaged in conduct violative of the Act, I recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Local 453 having caused the Company to discriminate against the employees named in footnote 2, supra, I recommend that said Local immediately notify the Company and those six men, in writing, that it has no objection to their restoration on the Company's seniority register to the positions occupied thereon prior to December 7, 1962, or to such higher positions to which each presently may be entitled if employees of higher seniority have since terminated their employment with the Company, together with all the rights attached to such restored positions on the roster. Respondent Company having discriminated on December 7, 1962, against the employees designated above. I recommend that it immediately restore each of those employees to its seniority roster as' recommended immediately above, and notify them, in writing, that it has done so. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Maremont Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Local 453, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO„is a labor organization within the meaning of the Act. 3. By causing the Company, on or about December 7, 1962, to reduce the- seniority status of the six employees named in footnote 2, supra, Local 453 has restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and has caused the Company, to discriminate against said employees in violation of Section 8(a)(3) of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. 4. By reducing the seniority of the employees designated above, the Company violated Section 8(a) (3) and 8 (a) (1) 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. 6. The allegations of the complaint that Respondent International Union has violated Section 8(b)(1)(A) and 8(b)(2) of the Act have not been sustained. 19 See also the earlier discussion pertaining to the organizational structure of Local 453. 770-076-65-vol. 149-33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that: A. Respondent, Local 453, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Causing, or attempting to cause, the Respondent Company, for reasons of color or race, to reduce the seniority of, or to otherwise discriminate against, the employees named in footnote 2, supra, or any other employee, in violation of Section 8(a) (3) of the Act. (b) In any like or related manner, restraining or coercing employees in the exercise of the 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 employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify the six employees named in footnote 2, supra, and the Respondent Company, in writing, that it has no objection to their immediate restoration on the Company's seniority roster to the positions occupied by them prior to Decem- ber 7, 1962, or to such higher positions to which each presently may be entitled if employees of higher seniority have since terminated their employment with the Company, together with all the rights attached to such restored positions on said roster. - (b) Post at all its business offices and meeting halls, copies of the attached notice marked "Appendix A." 20 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of Local 453, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including 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. (c) Post at the same places, and under the same conditions as set forth in 2(b) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Company's attached notice marked "Appendix B." (d) Mail to the Regional Director for Region 13 signed copies of the attached notice marked "Appendix A" for posting by Maremont Corporation, at all its premises in the Chicago metropolitan area in places where notices to employees are customarily posted. Copies of the notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representa- tive of Local 453, be forthwith returned to the Regional Director for such posting. - (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Decision, what , steps it has taken to comply herewith.21 B. Respondent Maremont Corporation, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: - (a) Reducing, for reasons of color or race, at the instigation of a labor organi- zation, the seniority of the six emloyees named in footnote 2, supra, or :otherwise discriminating against them , or any other employee, in violation of Section 8(a) (3) of the Act. (b) In any like or related manner interfering - with, restraining, or coercing its employees in the exercise of their 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 employment 'as authorized in Section 8(a) (3) of the'Act. 21 In the event 'that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of 'a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." ' 21 In the event that this Recommended Order be adopted by the Board, this provision shalUbeun'iodified to read: "Notify the Regional•Director•for Region 13, in,writing, -within 10 days from the date of this Recommended Order, what stepp,the, Respondents have taken to comply herewith." - 0- INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 499 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Restore the six employees named in footnote 2, supra, on its seniority roster to the position occupied thereon by each prior to December 7, 1962, or to which each presently may be entitled if employees of higher seniority have since terminated their employment with the Company, together with all the rights attached to such restored position on that roster. (b) Post at its premises in the Chicago metropolitan area, copies of the attached notice marked "Appendix B." 22 Copies of said notice , to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of the Company, be posted by the Company immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Company to ensure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places, and under the same conditions as set forth in 2(b) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Local 453's attached notice marked "Appendix A." (d) Mail to the Regional Director for Region 13, signed copies of the attached notice marked "Appendix B" for posting by Respondent Local 453, at all its business offices and meeting halls, including all places where notices to members are custom- arily posted. Copies of said notice, to be furnished by the Regional Director for Region 13, shall , after being duly signed by an authorized representative of the Company, be forthwith returned to the Regional Director for such posting. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Decision , what steps it has taken to comply herewith.23 =2 See footnote 20, supra. - 23 See footnote 21, supra. APPENDIX A NOTICE TO ALL MEMBERS OF AMALGAMATED LOCAL 453, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF MAREMONT CORPORATION Pursuant to the recommended order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT cause or attempt to cause Maremont Corporation to discrimi- nate against Hugh McRoberts, Kenneth Morr, Art Cellini, Albert Pompa, Edward Nowak, and William Faber, or any other employee, for reasons of color or race, to reduce their seniority , or to otherwise discriminate against them, or any other employee , in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an'agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. - WE WILL notify the six employees named above and said Company that we have no objection to the restoration of said six employees to the position. occupied by them on the Company's seniority roster prior to December 7, 1962, or to such other position to which they may be entitled , together with all the rights pertaining to that position. AMALGAMATED LOCAL 453 , INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, Labor Organization: Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have, any question concerning this notice or compliance with its provisions. 1 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT encourage or discourage membership in, or activities on behalf of, Amalgamated Local 453, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization of our employees, by reducing the seniority of any of our employees for reasons of race or color pursuant to the request of said union, or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. WE WILL restore Hugh McRoberts, Kenneth Morr, Art Cellini, Albert Pompa, Edward Nowak, and William Faber to the position on our seniority roster occupied by them prior to December 7, 1962, or to such other position to which each of them may be entitled, together with all the rights pertaining to that position. MAREMONT CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Leed's Shoe Store, Valley Fair, Inc.; Edison Brothers Stores, Inc. and Retail Store Employees Union , Local 428, Retail Clerks International Association , AFL-CIO. Case No. 20-CA- 2847. November 6, 1964 DECISION AND ORDER On June 22, 1964, Trial Examiner Howard Myers issued his Deci- sion in the above-entitled proceeding, finding that 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 attached Decision. Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs, and General Counsel filed an answering brief. Pursuant to the provisions of 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 McCulloch and Mem- bers Fanning and Jenkins]. 149 NLRB No. 52.