Great Lakes Carbon Corp.

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommend that they cease and desist therefrom and take certain affirmative action designed to remedy the unfair labor practices and otherwise effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Northwestern, Union Oil, and Texaco are, each of them , employers engaged in commerce , and the Respondents , and each of them, are labor organizations, all within the meaning of the Act. 2. By inducing and encouraging employees of Northwestern and other employers to engage in strikes or refusals in the course of their employment to perform serv- ices, with the object of forcing or attempting to force Northwestern and other employers to cease doing business with Dr} wall, Raingutter, and Cheek, respectively, the Respondents and each of them have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b) (4) (i) and (ii) (B) and 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] Great Lakes Carbon Corporation and J. P. Pritchard, Bobby Ray Thompson and Ralph Benjamin Whetstine and International Chemical Workers Union, Local 427, Party to the Contract. Cases Nos. 11-CA-2354, 11-CA-2362-2, and 11-CA-2362-3. May 28, 1965 DECISION AND ORDER On December 21, 1964, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision together with a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed a brief in answer to the General Counsel's cross-exceptions. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, 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. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case and, finding merit in certain of the General Counsel's excep- tions, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein. Following the conclusion of an economic strike in 1959, Respondent Great Lakes Carbon Corporation and International Chemical Workers Union, Local 427, hereinafter called the Union, executed a collective- bargaining agreement containing clauses which, on their face, granI ed 152 NLRB No. 103. GREAT LAKES CARBON CORPORATION 989 preferred plant and departmental seniority to strikers and to striker- replacements who reported for work during a certain period prior to the conclusion of the strike. These provisions have been embodied without change in the parties' 1962 contract, which is currently in effect. The Respondent admitted in its answer and through its attor- ney at the hearing that it applied and enforced the aforesaid super- seniority provisions against Charging Parties Pritchard, Thompson, and Whetstine by awarding available job opportunities to other employees who, although junior in terms of length of company service and other seniority provisions in the agreement, were senior to the Charging Parties solely by virtue of the superseniority granted them by the contract. In seeking redress, the Charging Parties filed their charges upon which the complaint in this case is based during the months of February and March of 1964, less than 6 months after the Respondent's affirmative action caused the job opportunity losses referred to above. 1. The Trial Examiner found, and we agree, that the above-described seniority provisions which the Respondent applied, enforced, and gave effect to within the statutory 10(b) period violate Section 8(a) (1) and (3) of the Act in that they discriminate against the seniority rights and privileges of employees who refused to abandon a lawful strike. 2. The Trial Examiner further found, and we likewise agree, that the Respondent violated the same section of the Act by precluding employees Pritchard, Thompson, and Whetstine from obtaining the job opportunities they would have had but for the Respondent's appli- cation and enforcement within the 10 (b) period of the unlawful senior- ity provisions required by the contract. In reaching these conclusions, however, the Trial Examiner also found that because of "the [General Counsel's] disclaimer [at the hear- ing] of reliance on the invalidity of these provisions on their face ... and the absence of allegations that the execution of the agreement was itself invalid," and also because the remedy would not be affected, it was unnecessary to consider the General Counsel's contention that the superseniority provisions are invalid on their face. The General Coun- sel points out, however, and the record shows, that the General Counsel not only raised this contention at the hearing, but that his entire case was predicated thereon, and he consequently excepts to the Trial Examiner's failure to find that the above-described superseniority pro- visions are invalid on their face. We find merit in the General Coun- sel's position. The gravamen of the instant unfair labor practices rests upon the Respondent's barring of job opportunities to employees Pritchard, Thompson, and Whetstine within the 10 (b) period pursuant to super- seniority provisions contained in a contract which was executed outside 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 10(b) period. Therefore, in order to sustain our findings herein, it is essential that we find, as we do, that independently of the legality of the execution of the contract,' the provisions themselves are di8- crinzvn,ator°y on their face. Accordingly, we find, in agreement with the General Counsel, and on the authority of the closely parallel Whiting Milk Corporation case 2 and the cases therein cited, that the Respondent's application and enforcement within the 10(b) period of seniority provisions which are invalid on their face violates Section 8(a) (1) and (3) of the Act, and we shall, therefore, issue an appro- priate order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Great Lakes Carbon Corporation, Morganton, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Enforcing, applying, or giving effect to the superseniority, or preferred seniority, provisions of its collective-bargaining agreement with International Chemical Workers Union, Local 4'27, which dis- criminates against any of its employees with respect to seniority or job opportunities, or any other aspect of their employment relationship with Respondent Company, on the basis of their strike activity. (b) Discouraging membership of employees in the aforesaid Union by discriminating in regard to their job opportunities, or their hire, tenure, or any term or condition of employment on the basis of their strike activity. (c) Interfering with, restraining, or coercing any of their employ- ees in like or related manner in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Eliminate from its collective-bargaining agreement with the aforesaid Union any provision granting superseniority or preferential treatment to employees on the basis of whether they had or had not returned to work or been hired during a. strike. 1 Compare Local Lodge No. 1424 , International Association of Machinists v N.L R.B. (Bryan Manufacturing Company ), 362 U S 411, 419-420, where a union -security clause which was lawful on its face but which had been entered into more than 6 months be- fore the charges were filed could be found discriminatory only by finding an unfair labor practice in the initial execution of the contract during the barred period . See also Bowen Products Corporation, 113 NLRB 731 , to the same effect 2 Whiting Milk Comporation, 145 NLRB 1035; of Local Lodge No 1424, International Association of Machinists v NL.R.B. ( Bryan Manufacturing Company ), supra, at 423 3In finding that Respondent enforced a contract unlawful on its face, we adopt, with- out necessarily agreeing with all of his rationale , the Trial Examiner' s rejection of Respondent's defense based upon the existence of its contractual grievance procedure GREAT LAKES CARBON CORPORATION 991 (b) Offer to employees J. P. Pritchard, Bobby Ray Thompson, and Ralph Benjamin Whetstine the job opportunities they would have enjoyed but for the discrimination against them occasioned by the application of the superseniority provisions of the collective-bargain- ing agreement with the aforesaid Union, without prejudice to their seniority or the seniority of any employee, and make them whole for any loss of earnings suffered as a result of such discrimination. Back- pay shall be computed on a quarterly basis as provided in F. W. Wool- wortl^ Company, 90 NLRB 289, with interest added at the rate of 6 per- cent per annum, as provided in Isis Pbumabing dl Heating Co., 138 NLRB 716. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amount of backpay due, and the rights of the employees under the terms of this Order. (d) Post at its plant in Morganton, North Carolina, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 11, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. A 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT enforce, apply, or give effect to the supersenior- ity, or preferred seniority, provisions of our collective-bargaining agreement with International Chemica, -iVorkers Union, Local 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 427, which discriminates against employees with respect to senior- ity, job opportunities, or any other aspect of employment on the basis of their strike activity. WE WILL NOT discourage membership of employees in the afore- said Union by discriminating in regard to their job opportunities or their hire, tenure, or any term or condition of employment on the basis of their strike activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL eliminate from our collective-bargaining agreement with the Union any provision granting superseniority or preferred treatment of employees on the basis of whether they had or had not returned to work or been hired during a strike. WE WILL offer to J. P. Pritchard, Bobby Ray Thompson, and Ralph Benjamin Whetstine the job opportunities they would have enjoyed but for our discrimination against them, and wE WILL make them whole for any loss of earnings suffered by reason of the discrimination against them. GREAT LAKES CARBON CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 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, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone No. 723-2911, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION The complaint herein, as amended (issued June 30, 1964 ; charges filed February 13 and 24 and March 23 and 26, 1964 ), alleges that the Company has violated Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended , 73 Stat. 519, by maintaining in effect and enforcing a collective -bargaining agreement which contains strike superseniority provisions ; and refusing to offer certain jobs to Pritchard and Thompson and transferring Whetstine , all because of said seniority provisions. Citing compliance with the collective -bargaining agreement, the answer denies the allegations of violation. Various defenses raised and argued at the hearing and in the Respondent's brief call for analysis of the Act and of leading cases interpret- ing it. A hearing was held before Trial Examiner Lloyd Buchanan at Morganton, North Carolina, on August 18, 1964. Pursuant to leave granted to all parties , briefs have been filed by the General Counsel and the Company, the time to do so having been extended . By agreement of all counsel, corrections are hereby made as listed in a letter dated September 30 from counsel for the Company, said letter being received as Trial Examiner's Exhibit No. 1 I commend all counsel for their able assistance in presenting this interesting issue and for their cooperation in avoiding lesser issues which could have involved detailed evidence at the hearing and lengthy consideration at this stage even if ultimately unnecessary. GREAT LAKES CARBON CORPORATION 993 Upon the entire record in the case, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Delaware corporation, is engaged at its Morganton, North Carolina, plant in the manufacture of carbon and graphite electrodes; that during the year immediately preceding issuance of the complaint it manufactured, sold, and shipped finished products valued at more than $100,000 from said plant to places outside the State of North Carolina, and caused goods valued at more than $100,000 to be shipped directly to said plant from places outside the State of North Carolina; and that it is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the mean- ing of the Act. II. THE UNFAIR LABOR PRACTICES A. The contract A collective-bargaining agreement entered into between the Company and the Union in 1957 provided for seniority according to date of hire except in the mainte- nance department and in some other respects not here applicable. During the course of an economic strike in April-June 1959, the Company hired replacements and told them that they would be given "retention protection." Various strikers, we are told, returned to work on June 25; the strike was settled on June 30, 1959. The following retention protection or strike supersen:ority provisions were embodied in collective-bargaining agreements between the Company and the Union, executed on or about July 8, 1959, and December 27, 1962: 1 6.02 For the purposes of this agreement, plant seniority is defined as the length of an `employee's' (Section 2.02) present continous employment at the Morganton plant without a break in his seniority subject to the applicable provi- sions of this Agreement, subject further to the following conditions and limitations: (a) Individuals who were hired as replacements for striking employees during the period April 30, 1959, and 6 P.M., June 30, 1959, and strik- ing employees who returned unconditionally during the same period, shall have plant seniority over all other employees and among these two groups such seniority shall be in the order they were hired or returned to work during this period , as the case may be, it being the intention to combine these two groups of employees into one plant seniority list. (b) Striking employees who returned after the strike was settled on June 30, 1959, shall have the same relative plant seniority in relation to each other as they had prior to the strike, but such plant seniority shall be less than the plant seniority granted in sub-division (a) above. (c) Employees who were not returned after the strike but were not in the category of a replaced employee, shall have the same relative plant seniority among themselves and the employees covered by paragraph (b) above that they enjoyed prior to the strike but their plant seniority shall always be less than that of those granted in sub-division (a) above. 6.03 For the purposes of this Agreement, departmental seniority is defined as the length of the employee's present continuous employment in the depart- ment in which he is currently permanently employed as a result of bidding on a permanent vacancy within a job classification or permanently assigned to a job classification in which there were no other qualified bidders. For the purposes of this provisions, classifications in the respective departments are listed in Appendix A. (a) Individuals who were hired as replacements for striking employees during the period April 30, 1959, and 6 P.M., June 30, 1959, and striking employees who returned unconditionally during the same period shall have departmental seniority over all other employees and among these two 'The latter agreement, effective November 26, 1962 , by Its terms expires on Novem- ber 25, 1965. It is now admittedly maintained in effect and enforced 789-730-66-vol. 15 2-6 4 '994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD groups such seniority shall be in the order they were hired or returned to work during this period, as the case may be, it being the intention to com- bine these two groups of employees into one departmental seniority list. (b) Striking employees who returned after the strike was settled on June 30, 1959, shall have the same relative departmental seniority in rela- tion to each other as they had prior to the strike but such departmental seniority shall be less than the departmental seniority granted in sub- division (a) above. (c) Employees who were not returned after the strike but were not in the category of a replaced employee shall have the same relative depart- mental seniority among themselves as the employees covered by paragraph (b) that they enjoyed prior to the strike but their departmental seniority shall always be less than that of those granted in sub-division (a) above. The Company contends that the offer of preferential treatment to replacements and returning strikers did not prolong the strike, and that the Union did not object to such treatment. The Union counters that the Company's promise of super- seniority did have an effect on the strike, and it was compelled to agree in order to save jobs. That the Union did object is suggested by its filing of charges with the Board both in 1959 and in 1962. The issue before us is not whether or not the strike was prolonged by any unfair labor practice; the General Counsel has conceded that it was an economic strike. The question of waiver will be considered infra, with the other defenses raised by the Company. The issue of strike superseniority is readily stated Without our referring to legis- lative history or entering upon learned disquisitions, it can be readily determined, subject to the defenses raised and most ably argued. While the authority of the bargaining agent is indeed broad, it is not unlimited. We need not decide whether, if it willingly entered into the agreements for strike superseniority, the Union exceeded possible bounds of its authority and failed in its duty to represent all of the employees fairly and equitably, due allowance being made for valid exercise of its discretion The determination can be based on broader grounds. Whether the Union did not object, as the Company claims, or whether the Union was under compulsion to agree, we have here no question of lawful replacement of strikers. The attempt was made, rather, to prefer by grant of superseniority those who did not strike (or who abandoned the strike) over those who did. But such preference is unlawful; and employees' recognized seniority rights cannot be thus bargained away by an agreement to give greater rights to others.2 It may not add anything worthwhile to note, on the authority of Jewel Tea Coln- pany,3 that any alleged intent to further the overall welfare of the employees as agreed upon and presumably determined by a collective-bargaining agreement can- not be permitted to thwart or nullify established law. I find that the enforcement and giving effect to the strike superseniority provisions is pinna facie violative of Section 8(a)(1) and (3) of the Act, subject to consideration of the 6-month statu- tory limitation, infra. We come now to the various defenses raised by counsel for the Company. Although not so stated by him, it may be recognized that his very experience and knowledge of the law led to embarrassment or frustration over the Supreme Court's reversal in 1963 of the May 1962 decision of the circuit court of appeals upholding such prefer- ential seniority .4 The first defense raised is that article XVIII of the collective-bargaining agreement provides for the adjustment of differences by grievance and arbitration procedure. We can judicially notice that in Case No 11-CA-1514 (1959) and Case No. 11- CA-1939 (1962) the Regional Director dismissed charges of preferential treatment of employees based on the preferential treatment provided for by the superseniority arrangement. The dismissals were on those occasions upheld by the General Coun- sel. It is not disputed that in 1960 the Union went to arbitration over the super- seniority provisions in the then current 1959 contract, the decision there was apparently in favor of the Company. 2 Dre Resistor Corporation, 132 NLRB 621, 631, Old 373 U S 221 See also on remand, sub nom. I U El, Local 613 v N L R B , 328 F. 2d 723 (C A 3) The Borg-Warner case cited in Erie Resistor is noted infra in connection with the alleged waiver S Jewel Tea Company, Inc. v. Associated Food Retailers, etc , 331 F. 2d 547, 548 4 Also in May 1962, superseniority was found violative Sioarco, Inc v. NLRB, 303 F. 2d 668 (CA. 6). The action taken vis-a-vis the three employees, infra, was presumably with full knowledge of the 1963 decision [Elie Resistoi Coip, supra]. GREAT LAKES CARBON CORPORATION 995 With full awareness of Warrior & Gulf 5 and other cases cited by the Company, and Section 203(d ) 6 of the Act, we must also consider Section 10 ( a) 7 and the Board's general responsibility as set forth in Section 1(b).8 That there may be con- current jurisdiction and conflicting decisions between an arbitrator and the Board was recognized in Carey v. Westinghouse Electric Corpolation .0 This would appear to dispose of the argument that, because of the current contract, the violations here alleged are subject to the grievance procedure and arbitration exclusively and that the Board lacks jurisdiction. While, therefore , "neither existence of an agreement to arbitrate nor a rendered award can preclude the Board from exercising its statutory jurisdiction ," 10 the Board in the Spielberg case 11 laid down certain conditions under which it would accept an arbitrator's decision , among them that "the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act ." But to the extent that the Company relies on it , an arbitrator's award which upheld superseniority provisions since found by the Supreme Court to be violative is now "clearly repug- nant" and not to be followed after such decision by the Supreme Court. Finally, while the Board might, following Dubo,12 defer action pending arbitra- tion, there has not here been either a request for such deferral nor an invocation of the arbitration procedure . There is no reason for the Board to abdicate its respon- sibility entirely or to withhold its process for the possibility that the arbitration pro- cedure may be invoked . If reference has in the past been made to "the slow and creaking procedure ," 13 as the result of the parties ' "pride of opinion, ill temper, and frustration ," these elements are not here present and we have no pending effort by the parties to pursue any other remedy: no such charge will here lie as we are well on our way to disposition. The second defense is that finding of violation is barred by the 6 -month statutory limitation . The Company's position in this respect might be tenable , other consid- erations aside, under the Bryan decision 14 but for the disclaimer of reliance on the invalidity of these provisions on their face , i.e., on the mere execution of the con- tract, and the absence of allegation that execution of the agreement was itself invalid. 15 The allegation here is that maintenance and enforcement of the agree- ment within the statutory period is violative. In Lundy Manufacturing Corporation,16 the Board following a remand based on Bryan, declared that it would make no finding that the employer violated the Act "by maintaining or by giving effect" to its pre-6-month contract. That it had in mind mere continuance of the contract rather than a "giving effect" appears from its immediately following reference to the "events predating the limitations period." 5 United Steelworkers of America v Warrior d Gulf Navigation Co , 363 U S. 574. 0 "Final adjustment by a method agreed upon by the parties is hereby declared to he the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective -bargaining agreement. . . . 7 "The Board is empowered , as hereinafter provided , to prevent any person from engaging in any unfair labor practice ( listed in section 8 ) affecting commerce This power shall not be affected by any other means of adjustment or prevention that has 11 been or may be established by agreement , law, or otherwise . . . . I It is therein declared to be the purpose and policy of the Act , inter alma, "to provide orderly and peaceful procedures " and "to define and proscribe practices on the part of labor and management" with respect to the other provisions of the Act. 9 375 U . S. 261. 10 U.L. v. Worthington Corporation, 236 F. 2d 364, 368 (C.A. 1). See also Local 743, International Association of Machinists V. United Aircraft Corporation, 337 F. 2d 5 (C.A 2), holding that Board action is not barred even by an arbitration agreement entered into to bar any "recourse whatsoever " under any State or Federal laws. 11 Spielberg Manufacturing Company, 112 NLRB 1080, 1082. 12Dibo Manufacturing Corporation, 142 NLRB 431. 13 N.L R.B. V. Roscoe Skipper, Inc , 213 F. 2d 793, 794 (C A. 5). 14 Local Lodge No 1424, International Association of Machinists v. N.L R B. (Bryan Manufacturing Company ), 362 U.S. 411 15 Because of that disclaimer at the hearing , I do not consider the General Counsel's argument in his brief that violation be found because the provisions are invalid on their face , citing Whiting Milk Corporation, 145 NLRB 1035 . Consideration of this argument might in any event be labeled not only unnecessary but "superfluous" ( to bor- row a unique term ) since the remedy would not thereby be affected 16 136 NLRB 1230, 1232 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the authority of Bryan and Lundy, execution and continuation or maintenance of the 1962 agreement cannot be found to be violative. But under his allegation of enforcement, the General Counsel has cited the agreement provision that vacation preference is governed by plant seniority, previously defined in the superseniority sections quoted. While the General Counsel points out that layoffs are also affected by the superseniority provisions, there is no evidence of any layoffs or such "events" during the limitations period. But the January-February period for selecting vaca- tions granted throughout the plant is within the 6-month period; and it may certainly be assumed that all, most, or some of the employees exercised their rights in this respect. Violation occurred when the Company enforced, gave effect to, and applied the agreement within the statutory period. (Additional enforcement and further events are considered infra in connection with the named discriminatees.) The Company also argues that the Board cannot substitute for the superseniority provisions in the agreement a provision for seniority according to date of employ- ment. This, it is claimed, would deprive the Company of its right to seek and obtain other and lawful seniority provisions. The answer to this is that the Com- pany was not deprived of any choice of a lawful provision: it relied on its under- standing of the law and selected a provision which was thereafter declared to be invalid. If there was deprivation, it was committed by the Company when it deprived itself of opportunity to adopt, if any new plans, lawful ones. Nor can the Company transfer to the General Counsel the burden of extricating itself from the conse- quences of its own acts. Whatever the Company's or the General Counsel's impres- sion of the law in June 1962, certain action was subsequently declared unlawful, and the Company as is here charged is liable for the action which it has since committed. Further with respect to a claim of imposition on the Company of a provision for seniority according to the date of employment, such seniority was general in the earlier agreement and, but for the supersemority provisions, was continued in the current contract. It now applies, as noted supra, to vacations and layoffs, and there is nothing to suggest that a similar provision would not have been continued gen- erally but for the adoption of the strike supersemority provisions in 1962. With this likelihood thus indicated, it can hardly be said that the Company was deprived of a choice or would be so deprived by substitution of the earlier provision for that which it unlawfully adopted. If the defense of estoppel refers to the dismissal by the Regional Director and the General Counsel of the 1959 and 1962 charges, those rulings on the law would not bar contrary rulings with respect to the recent events and on the basis of the law as later declared. The Board would not be estopped even had the earlier ruling been its own. Whether considered in terms of estoppel or waiver, as urged by the Company, the earlier administrative determinations could not confer on the Company a vested right, after the law has been differently declared, to act or to continue to act contrary to such later declaration. With disclaimer of invalidity based on mere execution of the contracts, there is no question of penalizing the Company for its former acts in reliance on the dismissals by the Regional Director and the General Counsel. We are concerned with enforcement of a collective-bargaining agreement after the Supreme Court's decision on the issue involved and within the 10(b) period. The fifth defense urged is that the Union waived its rights and any claims for relief when it agreed to the superseniority provisions in 1959 and 1962. While the three employees are the Charging Parties here, it must be recognized that with respect to both the agreement and the separate discrimination against them, infra, the Union has been their agent and even now is allied with them in this proceeding. But it was pointed out in Borg-Warner,17 citing authority, that: . as was said by the court in another context, "The most that can be inferred from the union's action [in entering into a contract] is that the advantages of a contract in hand outweigh those which the union might later obtain...... As for any waiver by the International as it urged the Local to get the men back to work and sign a contract, submission after an unsuccessful strike is hardly an ironing out of differences or a waiver of either statutory rights or of viola- tion of those rights.... 17 Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, 1327 See also same case on remand, 121 NLRB 1492, 1495: "As a matter of practice, the Board has exercised its discretion and refused to be bound by any settlement agreement or arbitration award where such settlement agreement or award was at odds with the Act or the Board's policies " Cf. footnote 2, supra. GREAT LAKES CARBON CORPORATION 997 Entry into an agreement does not exculpate the Company from its violation of the Act.... '[T]he Board's process is not to be thwarted by any waiver even if without an element of compulsion or necessity. The Board has recently held again that an agreement between the parties does not render a case moot or affect the Board's power, in its discretion to issue a remedial order. The defense of waiver fails. B. The alleged discrimination against Pritchard, Thompson, and Whetstine The defense relating to grievance and arbitration procedure under the contract, cited with respect to the allegations of discrimination against the three employees, has been considered supra. With respect to denial of job opportunities to Pritchard, Thompson, and Whetstine by the provisions of sections 6.02 and 6.03 of the agree- ment (this does not cover the extent or amount of loss in each case), the Company argues that, even if those sections be invalid, it does not follow that the three would have obtained the job opportunities claimed for them. That argument is itself based ,on the asseveration that, if those sections are invalid, no seniority provisions exist on which a determination can be made. This has already been covered in connection with the objection to substitution of seniority according to date of employment. It has also been agreed, if sections 6.02 and 6 03 be found to be invalid, that under the previously existing seniority provisions and under the existing contract minus the superseniority provisions, Pritchard would have received employment which was denied to him. Here again it is the Company's position in this respect that the previ- ously existing seniority provisions and the existing contract minus the superseniority provisions are not applicable in finding any remedy. It is further the Company's position that the right of the Company to make certain temporary assignments under section 6.13 of the contract applies to Thompson's case, and that the job which he claims could have been given to another. As for Whetstine, the Company's position is that he would not necessarily have received the specific shift assignment which he claims. The Company does not attempt by proof in either case to support this argument of possibility contrary to the application of seniority according to date of employment. It was agreed that we need not in this proceeding pinpoint the jobs which Thomp- son and Whetstine might have been given since the amounts involved would be small and the far more important issue is superseniority and whether they were entitled to and would have received another job as claimed. There is agreement that, if finding of discrimination be found and a remedy be declared as to Pritchard, we can include Thompson and Whetstme, reserving the right to the Respondent to explore and determine in compliance proceedings the loss actually suffered and the amount thereof. I find that, but for the superseniority provisions, and in the absence of any show- ing or basis for finding that other assignments could and would lawfully have been made, Pritchard, Thompson, and Whetstine would have received the assignments described and alleged in the complaint. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON LABOR The activities of the Company, set forth in section II, above, occurring in connec- tion with the operations described in section I, 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. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by enforcing, giving effect to, and applying strike superseniority provisions of its contract with the Union, and by refusing to offer the job of fiber plant operator to Pritchard, refusing to offer a temporary driving job at a higher rate of pay to Thompson, and transferring Whetstme to a rotating shift, discriminated against its employees generally and against Pritchard, Thompson, and Whetstine specifically, in respect to their hire and tenure of employ- ment, and interferred with, restrained, and coerced them, in violation of Section 8(a) (3) and (1) of the Act. I shall therefore recommend that the Company cease and desist therefrom and from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. I shall furthei recommend that the Company immediately offer to Pritchard, Thompson, and Whetstine employment which they 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would now have but for the application of the superseniority provisions, without prejudice to their and other employees' seniority according to date of employment, and other rights and privileges; and make them whole for any loss sustained by reason of the discrimination against them, with interest at 6 percent, computation to be made in the customary manner.18 I shall further recommend that the Board order the Company to preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of backpay due. As pointed out in Lundy,19 the remedy should properly reflect the background or prelimitations period. While execution and maintenance of the agreement have not been found violative, the Company will be directed to cease and desist from enforc- ing or giving effect to the superseniority provisions of its agreement with the Union. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Chemical Workers Union, Local 427, is a labor organization within the meaning of Section 2(5) of the Act. 2. By enforcing, giving effect to, and applying strike superseniority provisions of its agreement with the Union, and by otherwise discriminating in regard to the hire, tenure, and conditions of employment of Pritchard, Thompson, and Whetstine, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing employees in the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] 19 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing & Heating Co., 138 NLRB 716. 10 Footnote 16, supra, 1233-1234. Transmarine Navigation Corporation and Its Subsidiary , Inter- national Terminals, Inc. and American Federation of Guards, Local #1. Case No. 21-CA-5766. May 28, 1965 DECISION AND ORDER On November 17, 1964, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. 152 NLRB No. 107.