Local 320, Electrical Workers

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 320, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (General Electric Company) and Katherine Lalonde. Case 3-CB-1308 June 25, 1971 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND FANNING On February 5, 1970, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. The substance of the allegation in the complaint is that since June 1, 1969, the Respondent has at- tempted to cause the Company to discriminate against employee Katherine Lalonde because she was not a member of the Union, in violation of Sec- tion 8(b)(2) and, thereby, has restrained and coerced employees in violation of Section 8(b)(1)(A) of the Act. At the Company's Syracuse location are a number of job classifications in which the represented employees are grouped. Within each classification are several work assignments or jobs. Thus, employees in the mount room of the Televi- sion Components Department, doing assembly work, whether on day or incentive basis, were in the R-5 classification. Within this classification were such work assignments or jobs as flange weld- ' For many years the Company has been a party to a series of national collective-bargaining agreements with the International Union augmented by supplements negotiated with the local unions . The 1966 national agree- ment and a local supplement entered into by the Company and Local 320, the Respondent herein covering employees at the Company 's Syracuse, New York, location was in effect when the situation herein arose Neither the national agreement nor the local supplement contains special provi- ing, clip welding, and cathode tab operation. The established practice for many years has been that an employee would not be permitted to transfer laterally in the same classification from one job to another. The one exception to this practice was that, on a seniority basis, employees who were not working full time on incentive rate jobs would be permitted to transfer laterally to available jobs where they could work full time for incentive pay. This practice and the exception was the subject of an oral agreement between the Company and Respondent.' In addition, Respondent Business Agent Stanley testified that in the case of a tempo- rary upgrade, when such temporary upgrade ter- minates, the employee is put back on the same job from which he was temporarily upgraded. Lalonde, an employee at the Syracuse plant since 1957, worked in the R-5 classification on an incen- tive piecework basis except for a period from February to June 1969 during which she was tem- porarily upgraded. Her work in the R-5 classifica- tion covered a range of operations including flange welding, cathode tab, and other assembly jobs. However, for the month of January 1969, im- mediately before she was temporarily upgraded, Lalonde worked on the flange welding job almost exclusively and did not do any cathode tab work. Shortly after Lalonde was temporarily upgraded to the position of group leader,2 the amount of cathode tab work increased sufficiently to require another full-time operator. About the end of May 1969, Lalonde was informed by her foreman that she was being taken off the temporary group leader job and that she was to go back to the flange weld- ing work. Lalonde protested the flange welding as- signment, stating that she should have the cathode tab job and after meeting with Joseph Cardarelli, the Company's specialist in union relations and safety, she was put on the cathode tab operation.3 Upon learning of the placement of Lalonde in the cathode tab operation, the Respondent objected to the assignment claiming that it constituted a lateral transfer that was contrary to the established prac, tice. Protests to the Company were registered on several occasions, with Respondent asserting Lalonde had been accorded preferential treatment. The Company maintained that Lalonde 's assign. ment to the cathode tab job was not a lateral transfer but rather a realignment of an employee to fill an open job. sions covering work task assignments and lateral transfers Y The record does not support the Trial Examiner 's finding that the leader job is a supervisory position a At the time Lalonde 's temporary upgrade ended , a reduction of ap- proximately 70 employees took place because of lack of work in the mount room A cathode tab job was thereby vacated by an employee with less seniority 183 NLRB No. 107 LOCAL 320, ELECTRICAL WORKERS Lalonde concedes that there was no union dis- crimination involved in the Company's taking her off the temporary leader job.' The Respondent's at- tempt to have this assignment of Lalonde to the cathode tab job rescinded is the conduct alleged to have been discriminatory. With respect to Respondent's alleged discrimina- tory motivation, it appears that, in September 1967, Respondent filed a grievance demanding that Lalonde be disciplined for "antiunion activity" con- sisting of leaving her work station to urge em- ployees not to engage in a walkout; in February 1968 Florence Shaw, a union steward, told Lalonde that Respondent would not process a grievance over her not getting the cathode tab job beyond the first step because Lalonde was not a member of the Union; and after Lalonde joined Respondent on April 1, 1968, Helen Damas , union steward, said she could do nothing about such a grievance because Lalonde had not been a member when the job opened up. On September 28, 1968, Lalonde withdrew from the Union by a letter which con- tained a message to Business Agent Stanley com- plaining of favoritism shown by steward Damas. Other evidence shows that Respondent has regu- larly processed grievances on behalf of the non- member employees , has filed similar grievances over antiunion conduct against other employees at various times, and filed another grievance opposing the lateral transfer of another employee at the same time and won , not knowing of her nonunion status, has successfully grieved over an untimely promo- tion involving a union steward; and has not before been charged with discrimination in the per- formance of its representation obligation. The record contains conflicting testimony as to whether, during the discussions of Lalonde 's job placement, Respondent accused the Company of showing favoritism to her because of her nonunion status and referred to her as a scab or whether the Com- pany during such discussions accused Respondent of pressing the grievance because of her nonunion status, or both. A credibility ruling resolving such conflict was not made. In any event, it is clear that her nonunion status was adverted to. The Trial Examiner concluded that Respondent's action was motivated by hostility against Lalonde because of her nonunion status and past antiunion conduct and, therefore, in violation of Section 8(b)(2) and 8(b)(1)(A) of the Act. We agree with the Trial Examiner that whether the work assign- ment of Lalonde was a lateral transfer contrary to 'The record does not support the Trial Examiner's statement that Lalonde testified her supervisor , Larry Lavine, told her that the Union ob- jected to her getting a tab weldingjob 1087 established practice is not determinative and a deci- sion on that question need not be made, for the issue is not whether Lalonde was entitled to the cathode tab work, but rather whether the Respon- dent sought to deprive her of such work for a dis- criminatory reason. However, we disagree with her conclusion that the evidence establishes a dis- criminatory motivation. The Trial Examiner's find- ing of discriminatory motivation is based in sub- stantial part on her conclusion that no useful union purpose could be served by the no-lateral transfer policy. Thus, in so holding, she described the Respondent's grivance based on this policy as "perhaps most glaringly point[ing] to a discriminato- ry motivation" because in her view, the no-lateral transfer policy served no "apparent Union pur- pose" or "any possible Union interest." Therefore, she concluded that "the inference is inescapable that [the Union's] conduct was discriminatorily motivated against Lalonde." Reliance on such matter is misplaced.5 The desirability of lateral transfers is an issue for determination by the parties at the bargaining table and not by the Board. Here the parties have worked out an established practice on lateral transfers. The fact that the Respondent may prefer an arrangement other than the established practice does not change that practice. Certainly Respondent cannot be faulted for seeking adherence to that practice. We agree with the Trial Examiner that a credi- bility resolution relating to the only evidence ad- duced to support the alleged discriminatory motiva- tion other than that introduced for background pur- poses need not be made, as both versions of the testimony show that in discussing Lalonde's job placement her nonunion status was brought into the open. Either version would establish no more than that one party to the grievance accused and suspected the other of discriminatory motivation, and not the existence of such a motivation. We find, contrary to the Trial Examiner, that Respondent's conduct in the handling of the Hanley situation has probative value in refuting any sug- gestion of discrimination contained in the background evidence. Thus, about the same time or just prior to the Lalonde affair, a similar situation arose involving employee Hanley. The Company granted her request for a transfer to another job which was a lateral transfer. Upon learning of this transfer, the Respondent complained to the Com- pany and Hanley was returned to her former job. At that time Respondent did not know whether or ' it is not within the province of the Board to "pass upon the desirability of the substantive terms of labor agreements " N L R B v American Na- tional Insurance Company, 343 US 395, 408-409 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not Hanley was a member of the Union-6 Of similar significance , the record shows that when employee Ray Rose, a union official, was improperly up- graded, the Respondent protested this improper ac- tion without regard to his status as a union official Finally, a discriminatory motive is further negated by Respondent Business Agent Stanley's testimony that the requested the Company to furnish him with Lalonde's vouchers for the period immediately preceding her temporary upgrade in order to determine whether she in fact did not have full piecework opportunities. If she did not, Stanley stated that there would be no opposition to the Company's placement of Lalonde in the cathode tab job since her placement would then be in com- pliance with the exception to the established prac- tice against lateral transfers. The Company did not contradict this testimony, nor did it furnish the Respondent with the necessary information so as to resolve this matter Accordingly, we conclude that the record fails to establish that Respondent attempted to cause the Company to refuse to assign the cathode tab job to employee Lalonde because she was not a member of the Union, in violation of Section 8(b)(2) and 8(b)( I )(A) of the Act. We shall therefore dismiss the complaint in its entirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed ' In considering the Hanley transfer , the Trial Examiner noted that Respondent had filed grievances on behalf of two employees seeking job transfers The Company denied these transfers claiming that they would be lateral transfers These grievances , the most recent being filed about 2 years before the Lalonde incident , were introduced into evidence to show company acknowledgment of the existence of the lateral transfer policy As the question of whether a transfer was lateral , contrary to the policy, must be made on the facts surrounding each, we can place no significance on the fact that in one situation the Union might request a transfer and in another feel compelled to grieve over such a transfer We note that 10 other lateral transfers were made about the time of Lalonde, yet apparently accorded with policy because they were the result of application of layoff-seniority provisions which no one contested TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN , Trial Examiner: This proceeding was heard in Syracuse , New York, on November 19 and 20, 1969,1 on a complaint issued against Local 320, International Union of Electri- cal, Radio and Machine Workers, AFL-CIO-CLC (General Electric Company ), on September 17, pursuant to a charge and an amended charge filed on July 22 and September 10, respectively, by Katherine Lalonde . At the hearing the Charging Party appeared pro se and the General Counsel and the Respondent Union were represented by coun- sel. All parties were afforded full opportunity to be heard and to examine and cross-examine witnesses. Oral argument was waived. A brief has since been filed by Respondent. Upon the entire record, consideration of Respon- dent's brief, and observation of the witnesses, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. PRELIMINARY FINDINGS A. The General Electric Company ( GE), a New York corporation with its principal office in New York City, is engaged in the manufacture, sale, and distribution of electrical motors, appliances , equip- ment, and related products . GE's plant located at Electronics Park , Syracuse , New York , is the only plant involved in this proceeding. During the past year , a representative period, GE, in the course and conduct of its business operations , purchased , transferred, and delivered to its Syracuse plant goods and materials valued in ex- cess of $50 ,000, of which goods and materials valued in excess of $50 ,000 were transported to said plant directly from points outside the State of New York. During the same period GE, in the course and conduct of its business operations, manufactured , sold, and distributed products in ex- cess of $50 ,000, of which products valued in excess of $50 ,000 were shipped from said plant directly to points outside the State of New York. GE is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2 B. Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. II. THE UNFAIR LABOR PRACTICE A. The Issue The Union attempted to prevent the employer from giving an employee the work assignment she desired. The complaint alleges that the Union took this action "because said employee was not a mem- ber" and thus violated Section 8(b)(I)(A) and 8(b)(2). The Union, on the other hand , maintains that its conduct was motivated solely by a desire to prevent preferential treatment to the employee in question, thus maintaining uniformity of treatment among employees in pursuance of its duty of fair representation. B. The Facts Katherine Lalonde, the Charging Party, has been employed in GE's Television Components Depart- Unless otherwise stated, all dates herein are in 1969 r National Labor Relations Act, as amended ( 6I Stat 136, 73 Stat 519, 29USC Sec 151,etseq) LOCAL 320, ELECTRICAL WORKERS ment (TCD) since 1957. For an undisclosed, though apparently extended, period of time prior to February 1, 1959, she had been working full time at operations paid on an incentive (piecework) basis Her principal assignment was an operation known as flange welding, but, since that operation was not constantly required on a full-time basis, she also worked at other jobs, all of which were in the same classification and paid at an incentive rate. The in- centive rates are the same on all operations within a classification so that theoretically any employee would realize the same earnings regardless of the specific operation being performed. In Lalonde's division, there was one full-time position in an operation known as "cathode tab" or "cathode tab welding." However, there was often need for a second cathode tab welder on a part- time basis. Lalonde did that overflow cathode tab welding. At one time, she worked full-time at cathode tabbing for 2 weeks, during the vacation of Krasnewich, who then was the regular full-time cathode tab operator. Lalonde believed she could realize higher earnings at cathode tabbing than at flange welding' In the early part of 1968, she had unsuccessfully at- tempted to secure cathode tab work on a full-time basis. (See details infra.) During the month of January 1969 there was no overflow cathode tab welding to be done. Ac- cordingly, during that month, Lalonde did primarily flange welding, with some time spent at other operations, all in the R-5 classification and all at in- centive pay.4 On February 1, Lalonde was temporarily up- graded to a supervisory position. According to White's uncontradicted testimony, shortly thereafter-around February or March-the amount of cathode tab welding work increased suf- ficiently to require two full-time employees. Em- ployee Lee Brock was assigned to the new full-time cathode tab job. Sometime in May the Company decided to fill existing supervisory jobs on a permanent basis, with the result that Lalonde's temporary upgrade was to end on or about June 1.5 About the same time, a reduction in force in TCD was scheduled, with about 70 employees to be laid off on or about June 1. Although these two events occurred at the same time, there is no indication that they were interre- lated. The reduction in force was to be effectuated ' Charles M White, manager of union relations at TCD, indicated that which of the various jobs yielded the higher earnings depended primarily on the specific dexterity and talents of individual employees There was no substantial evidence that employees generally found cathode tab welding more remunerative than other operations Although no specifics were provided, it appear that during that month she had received some pay at the hourly rate However, it appears to have been for "down-time" rather than pursuant to regular assignment ' There was no contention that Lalonde was entitled to the supervisory position on a permanent basis Lalonde indicated that the Union had in- sisted on permanent appointments to the supervisory position because they were then being temporarily held, in large part, by nonunion members while union members had sufficient seniority for permanent promotions However, it is not alleged that the termination of Lalonde's temporary 1089 on a seniority basis, with employees hired after April 3, 1967, being laid off and senior employees whose jobs were being eliminated moved to con- tinuing jobs made vacant by the layoff of junior em- ployees One of the junior persons to be laid off was Lee Brock, leaving a full-time cathode tab job to be filled. Sometime in May, Larry Lavine, who was then Lalonde's foreman, told her that on June 1, at the end of her temporary promotion, she was to return to flange welding She objected, saying she wanted cathode tab work According to Lalonde, Lavine (who did not testify) told her that the Union ob- jected to her getting a tab welding job. Lalonde requested and was granted an interview with Joseph Cardarelli, specialist in union relations and safety at TCD. Cardarelli then consulted supervisory person- nel familiar with the situation and thereupon as- signed Lalonde to full-time cathode tab welding as of June 1. The Union objected to Lalonde's assignment to full-time cathode tab welding as "preferential treat- ment." According to the Union, since she was not affected by the layoff, she should have been returned to flange welding, which had been her principal, if not sole, work in January. The Union claimed that the assignment to cathode tab welding constituted a "lateral transfer," contrary to the Company's established practice. Union representa- tives registered their protest to company represen- tatives on several occasions According to Car- darelli, Business Agent John Stanley indicated that the Company's continued refusal to place Lalonde back at the flange welding job would cause "a lot of trouble," possibly including an areawide strike. On June 19, the Union filed 115 mimeographed grievances protesting the Lalonde placement. Each grievance purported to be a request by an in- dividual employee for a job transfer. The Company refused to entertain any of the grievances, main- taining that they amounted to sheer harassment.' The Company maintained that Lalonde's assign- ment to the cathode tab job was not a "lateral transfer," but rather a "realignment" of an em- ployee to fill an open job. The Company stood its ground and did not move her back to the flange welding job. The dispute ended, at least temporari- ly, on June 30, when Lalonde became ill. She was still on sick leave at the time of the present hearing. promotion was violative of the Act s The mimeographed text of the grievance read Due to the recent K Lalonde decision by Union Relations in Build- ing 6, TCD, which in the Union's eye appears to mean that job picking is legal, I hereby request to be moved to job in area Relief Requested That I be allowed to make this move toute-de- suite Written answer requested within 24 hours after receipt of grievance Two were introduced into evidence with a stipulation that they were representative In one of those two, the employee requested a transfer to "Chairman of the Board of Directors New York City Ist shift " In its brief, Respondent says that these grievances "were submitted to emphasize the absurdity of the Company's position " 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discussion and Conclusion The relevant provisions of the governing collec- tive-bargaining agreement read: Article XI, section 1, of the National Agree- ment: Whenever there is a reduction in the work- ing force or employees are laid off from their regular jobs, total length of continuous service, applied on a plant, department, or other basis negotiated locally, shall be the major factor determining the employees to be laid off or transferred (exclusive of upgrading or transfers to higher rated jobs.) However, ability will be given consideration. Article I, section 2, of the Local 320 Supple- ment: (a) Employees who are removed from a group because of lack of work in accordance with the provisions of the GE-IUE (AFL-CIO) National Agreement will be able to displace the shortest service employees on the same or similar work of the type for which they would normally be hired (but not on higher rated jobs) where no training beyond a rasonable breaking-in time will be required. Such transfers will be made as soon as the necessary openings can be created by remov- ing the shorter-service employees. The parties agree that the contract does not itself prescribe the mechanism for effectuating layoffs or resolve the question of Lalonde's placement upon the end of her temporary upgrade The parties have developed certain practices to implement the contractual provision for having seniority govern reduction in force. While these practices were not described in detail, it appears that the Company generally prepares "bump sheets," which set forth the relative rights of vari- ous employees to retain employment Union Finan- cial Secretary Kyram Phelan , who was also assistant chief steward in TCD on June 1, 1969, testified that he had examined the "bump sheet" used in connec- tion with the layoff on that date. GE representa- tives, however, maintained that no "bump sheet" had been prepared for this reduction. The Trial Ex- aminer gained the impression that the disagreement between the parties on this point was a matter more of verbal fencing than of substance. Whether or not there was a document called a "bump sheet," there is no disagreement that junior employees were laid r The evidence is confused as to the precise mechanism of "bumping " However, the record does show that 10 employees ( in addition to Lalonde) were reassigned within their established classifications So far as appears, off and senior employees whose jobs were being eliminated replaced those laid-off employees whose jobs were not eliminated.7 Union Business Agent John Stanley testified that the Company had always maintained a policy against permitting lateral transfers , i.e., transfers between jobs within the same classification, and the Union had generally acquiesced in this policy. How- ever, sometime in 1956 or 1957, Stanley, for the Union, and a Mr. O'Brien, then acting for GE, had reached an understanding that , on a seniority basis, employees who were not working full time on in- centive-rate jobs would be permitted to transfer laterally (i.e., within the same job classification) to available jobs where they could work full time for incentive pay." With this exception, the company policy against lateral transfers has been maintained. While no GE representative testified specifically concerning any "understanding" between Stanley and O'Brien, they did agree that, generally speak- ing, the company's policy was as outlined by Stan- ley. Cardarelli testified that some exceptions to the no-lateral-transfer rule had been made in the past but he provided no specifics. Stanley said he knew of no previous lateral transfers. For the purpose of this Decision, the Trial Examiner will assume, as maintained by Respondent Union, that the policy had been uniformily adhered to. Stanley also testified that it had been "resolved over the years" that at the end of any temporary upgrade the employee is returned to the "very same job" he was on when temporarily upgraded. This testimony was not denied. However, it should be pointed out that there was no evidence that any temporarily upgraded employees had ever requested reassignment to jobs other than the ones from which they had been promoted. Further, there was no indication that there had ever previously been a situation like the present, in which the end of a senior employee's temporary assignment coin- cided with a general layoff or other circumstance creating an "open" job. On the present record, the Trial Examiner would be hard put to decide whether the assignment of Lalonde to the cathode tab job on June 1 was a "lateral transfer" contrary to any established policy or practice, as the Union contends. Fortunately, that question need not be answered. See Local 282, Teamsters (Lizza & Sons), 165 NLRB 997, enfd 412 F.2d 334 (C.A. 2), cert. denied 396 U.S. 1038. In that case, an employee who had been promoted to a supervisory position later sought to return to the status of a rank-and-file employee. The em- ployer referred him to the union to secure restora- tion of his seniority. The collective-bargaining agreement did not contain any relevant provisions but the established practice of the parties had been for the union to make all seniority determinations. Lalonde 's assignment was the only subject of complaint by the Union "There are both day -rate and incentive -rate operations within the same classification LOCAL 320, ELECTRICAL WORKERS The union's executive committee at first voted to restore the employee's seniority but reversed its position when other employees objected because of his antiunion conduct as a supervisor. In holding that the union had violated Section 8(b)(I)(A) and 8(b)(2), the Board said: ... The issue in the case is not whether [em- ployee] Melillo is entitled to seniority, but rather whether the Union revoked his seniority for a discriminatory reason. . . . Thus the question of Melillo's right to restoration of seniority ... is not really dispositive of the is- sue. For the Union has undertaken to judge seniority, and, accordingly, we must look to the Union to see if that power was exercised lawfully. In enforcing the Board's order, the Court of Ap- peals for the Second Circuit expressly approved the Board's having pretermitted the question of Melil- lo's seniority rights. The court said that the question was "whether a union which had assumed the task of determining an employee's seniority per- formed this task in a discriminatory fashion. If the union so discriminated it violated the Act, even in the absence of an independent Labor Board deter- mination of the employee's actual seniority status." 412 F.2d at 336. Whether or not Lalonde was "entitled" to the cathode tab job, the Union's attempts to deprive her of it were violative of the Act if her nonunion status or "anti-union activities played at least some part in the union's final determination." Ibid. 412 F.2d at 336. The record in the present case leaves no reasonable doubt that the Union was motivated, at least in substantial part, by animus against Lalonde because of her past and present relation- ship to the Union. In September 1967,9 the Union filed a grievance demanding that Lalonde be disciplined for her al- leged antiunion activity.10 The Company rejected the grievance for lack of evidence warranting disciplinary action." That grievance apparently did not proceed beyond the second level of the grievance procedure. Lalonde testified that she first learned of a full- time opening in cathode tabbing on August 7, 1967, but, according to her foreman, it was being given to employee Krasnewich, who, though junior to Lalonde, had had previous experience in that ' It does not appear whether Lalonde was a member of the Union at that time Although there was no direct testimony to this effect, the record in- dicates that she had previously belonged to the Union but had resigned at an unspecified time before February 1968 " 0 The text of the grievance reads "Union demands that Kate Lalonde be reprimanded for urging employees not to exercise their rights to walk out on Tuesday, September 12, 1967 on an exhausted grievance Mrs Lalonde left her work station during working hours for the purpose of urging employees not to participate in the walk- out We assume this was done without the permission of her foreman A steward, for this type of action, would have received disciplinary action Will this be done in the case of Mrs Lalonde, a foreman's wife'? Union requests that Mrs Lalonde be disciplined and told to mind her own busi- ness as she always is meddling in other people 's affairs " 1091 operation. In February 1968 Lalonde asked Union Steward Florence Shaw to file a grievance on her behalf, seeking the cathode tab job. According to Lalonde, Shaw said that the Union would not process such a grievance beyond the first step because Lalonde was not a member of the Union. Lalonde thereupon joined12 the Union on April 1, 1968, and then spoke to Helen Damas, a steward, about the matter. Damas said she could do nothing about it because Lalonde had not been a member of the Union when the job opened up " Because of Shaw's and Damas' statements, Lalonde took no action and no grievances were filed. As neither Shaw nor Damas testified, there was no direct con- tradiction of Lalonde's testimony in this connec- tion. Nor did Respondent offer any affirmative ex- planation of why no assistance was afforded Lalonde in her attempt to secure the cathode tab job in February and April 1968. Lalonde impressed the Trial Examiner as an honest and conscientious witness entitled to belief. Accordingly, the Trial Ex- aminer credits her testimony summarized above. On September 28, 1968, Lalonde withdrew from the Union, in a typewritten letter sent in duplicate originals to the Union and the GE payroll depart- ment. On the bottom of the one sent to the Union, she penned the following note: To John Stanley: I had intended to stay in the union when I rejoined April 1st 1968. But with section stewards like Helen Dumas[14] who only does things for favorite ones it is my best bet to get out. I ask Helen if she would check on something for me. The first question she asked me was if I were in the union when it happened. I said no & she said she couldn't help me. If that's the way the union plays the game, I'll play it my way & be $4.75 richer each month. There is no question that the Union received this letter. However, Stanley testified that the Union's bookkeeper handles all withdrawals from the Union and that he personally had never seen or heard of Lalonde's note until he received a subpoena duces tecum to produce it at the present hearing. Stanley did not provide any further elucidation of the method in which resignations are normally handled. The bookkeeper was not called as a witness. On " "There is no evidence of harassment or of the individual leaving her work station without the foreman's permission 12 Apparently for the second time The stenographic transcript of Lalonde's testimony at this point reads 1 went to her and asked her if she would find out why I wasn't asked for that job The first thing she asked me was if I was in the job at the time the job was opened and I said no She said that she was sorry that she could not help me " ( Emphasis supplied ) The Trial Examiner's recollection, the context, and other evidence indicate that the word "union" was used in place of the italicized "job " The transcript is hereby corrected ac- cordingly 14 The testimony indicates that the correct spelling of this name is "Damas " 427-258 O-LT - 74 - 70 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cross-examination by Respondent's counsel, Lalonde testified that she "had reports" that her having sent Stanley "a nasty letter" was mentioned at one of the grievance meetings in April or May which Stanley had attended. is Stanley's denial that he knew of Lalonde's resignation message of September 28, 1968, does not coincide with probability. Lalonde obviously was something of a cause celebre, as demonstrated by the previous grievance in which she was accused of antiunion conduct and "always . . meddling in other people's affairs." It seems unlikely that, under the circumstances, a minor union employee would take it upon herself to withhold from Stanley the note which Lalonde had addressed to him per- sonally. Finally, the Trial Examiner's impression of Stanley's demeanor as a witness was not entirely favorable. He seemed more interested in justifying action against Lalonde than in illuminating the Union's conduct. On all the evidence, the Trial Examiner finds that when Stanley aggressively opposed Lalonde's hav- ing the cathode tab job she wanted, he knew of her prior resignation from the Union and her accusa- tion of favoritism practiced by the Union. The factor which perhaps most glaringly points to a discriminatory motivation is the total absence of any possible union interest to be served by the "no- lateral-transfer" policy which the Union claims was violated by the Lalonde assignment. Indeed, Stan- ley made it clear that the policy was imposed by the Company and somewhat reluctantly acquiesced in by the Union. On direct examination, he testified: ... the company appreciated the fact that the union understood that individuals could not select their jobs. I think it would be completely untenable and the company could not operate if every individual on seniority would indicate another job on piece-work just because he had the seniority. It would be impractical and cause chaos. [16] On subsequent questioning by the Trial Examiner, Stanley reinforced the basic fact that in the Lalonde matter he was undertaking to assure en- forcement of a company policy which was basically 15 While this testimony is clearly hearsay , counsel did not object Indeed, he pursued the matter after the hearsay nature of the testimony became ap- parent 0 You really don't know whether Mr Stanley ever saw it or not, do you9 A I had reports it was brought up at a second level meeting, yes Q At which second level meeting9 A At one of the meetings at General Electric it was brought up that I had sent him a nasty letter Q When was that A Atone of the meetings in April or May "It is a matter of common knowledge that employee job preferences are often honored, even in large units For example , the National Agreement between General Motors and the United Auto Workers contains such a undesirable to the Union. He testified as follows: ... if it were possible, certainly the union would like the longer service employee to have preferential jobs as such. But the union recog- nizes-the company made the complaint to the union-and the union recognizes in practice it would be impossible to carry out. TRIAL EXAMINER: Why? I'm trying to figure out why it would be difficult for the union. THE WITNESS: It would be-not, be difficult for the union, but it would present a problem to the extent that the company would not do it. If the company would allow this, yes, the union would be in favor of having longer service em- ployees get what is considered to be a preferential job. if the company agrees, we'll be willing to negotiate and the union will be happy to pro- vide longer service employees preferential jobs, but it's the company that will not agree to this. The Union has no objection to allowing longer service employees to take jobs which are preferential. The instant case thus presents the odd spectacle of a union attempting to compel an employer to en- force a policy which the Union basically opposes and to deny an employee a privilege which the Union favors in principle. In the present case, all considerations of adminis- trative practicality favored the Company's action. A cathode tab job was being opened by the layoff; Lalonde, who had had experience in that operation, was being made available by the termination of her temporary upgrade.11 As a result, two problems would be met by the single act of assigning Lalonde to the cathode tab job. The Union's position, how- ever, would involve complications. According to the Union, Lalonde should have gone to flange welding, displacing the employee who was then oc- cupying the job. The union witnesses did not make provision, as follows It is the policy of Management to cooperate in every practical way with employees who desire transfers to new positions or vacancies in their department Accordingly, such employees who make application to their foremen or the Personnel Department stating their desires, qualifications and experience, will be given preference for openings in their department provided they are capable of doing the job In case the opening is in an equal or lower rated classification and there is more than one applicant capable of doing the job, the applicant with the longest seniority will he given preference Any claim of personal prejudice or any claim of discrimination for Union activity in connection with transfers may be taken up as a grievance CCH, Union Contracts, Arbitration, par 59, 905 22, page 85,004 " White testified that Lalonde had been given the cathode tab job because of her experience and seniority He said that, had she not been in a temporary upgrade, she would have been given the cathode tab job "[w]hen it became a full-time piece-work job " LOCAL 320, ELECTRICAL WORKERS it entirely clear where that employee would be moved but at one time Stanley said that she would have been placed in the cathode tab job. There is no evidence that that employee, who had been em- ployed by GE only a little over 2 years, had any cathode tab experience or that she had any interest in securing any. It certainly is strange to see a union insisting that several moves should be made, with the end result that an employee with 2 years' ser- vice gets the job desired by an employee with over 12 years' service and experience on the particular job, while the employer wants to make one simple assignment which meets the preference of the senior employee. Absent any apparent union pur- pose to be served, the inference is inescapable that its conduct was discriminatorily motivated against Lalonde. 19 Respondent maintains that the absence of dis- crimination against Lalonde is demonstrated by its having filed a grievance protesting the "lateral transfer" of another employee, Rose Hanley. The entire evidence concerning the Hanley matter is less than one page of testimony by Stanley. So far as appears, Hanley requested and the Company granted her a lateral transfer to a "job which ap- parently is an easier job" than the one she was doing. When the Union complained, Hanley was returned to her earlier job. On direct examination, Stanley's testimony in this connection concluded: Q. Did you know at the time the [protest19] was put in whether Mrs. Hanley was a union member or not? A. No. Q. Did you find out subsequently whether she was or not? A. I think we did find out that she was not a member. From the meager information provided, it cannot be said that the Hanley and Lalonde cases were comparable. There is no suggestion that Hanley was at the time scheduled to be moved from one job to another, as was Lalonde from her temporary up- grade. On the other hand, Respondent itself established that on March 18, 1966, and July 20, 1967, it had filed grievances seeking to secure "lateral transfers" for employees Mary Jane Holihan and Hazel Kessler, respectively. 20 Respon- dent advanced no reason for favoring those requests while opposing Hanley's and Lalonde's. The Union also points to the case of Ray Rose to demonstrate its lack of discrimination between members and nonmembers. Ray Rose, a union steward, was granted a promotion for which he was not qualified by seniority, experience , or ability. 1s Cf International Typographical Union, Columbus Typographical Union No 5, AFL-CIO, 177 NLRB 855, cited by Respondent . There the Board found that denial of a particular job to an employee was not violative of the Act because the union was seeking to enforce an established shop rule which served the legitimate interests of the union and there was no "evidence that the rule was arbitrarily applied to [the employee], that [she] was otherwise singled out for discriminatory treatment , or that the action taken against her was related to her union or other concerted activi- 1093 The Union protested and the promotion was rescinded. Cross-examination of Stanley developed the fact that the Union had taken action in the Rose matter upon the vociferous protests of several employees, including, primarily, a Mr. LaFram- boise, who was entitled to and eventually got the job to which Rose had been improperly promoted. Again, the Rose matter bears no resemblance to the Lalonde incident. Respondent's representatives testified that at seminars for stewards and at stewards' regular meetings instructions were frequently given that grievances were to be processed with regard to the union membership or nonmembership of the griev- ing employees. Additionally, there was testimony that over the years the Union had filed and processed many grievances on behalf of nonmem- bers, who generally comprise around 20 percent of the unit employees. Accepted at its face value, this evidence does not tend to establish the absence of discriminatory motivation for the affirmative action which Respondent's representatives admittedly took to thwart Lalonde's reasonable desire. The Trial Examiner concludes that the Union's conduct was motivated by hostility against Lalonde for her nonunion membership and allegedly antiu- nion conduct in the past. The Union thus violated Section 8(b)(1)(A). The Union apparently argues that its conduct could not in any event be violative of Section 8(b)(2) because it was designed to secure uniform treatment and to prevent or undo allegedly preferential treatment by the Employer. In its brief, Respondent argues: ... we are faced ironically with an inchoate 8(a)(3) charge being transmuted into an actual 8(b)(1)(A) and (2) charge when the Union protested the blatant preferential treatment of a particular employee. On the present record, there is no evidence that GE's assigning Lalonde to the cathode tab job was in any part motivated by her nonunion membership and/or antiunion activity. No 8(a)(3) charge was ever filed against GE. The 115 grievances filed by the Union do not allege unlawfully discriminatory action. GE's representatives White and Cardarelli testified that, in discussing the matter, union representatives several times referred to Lalonde as a "scab." The union representatives, however, maintained that the company officials had adverted to Lalonde's nonunion status, stating their opinion that Stanley was pressing the matter so vigorously only because she was not a member of the Union. ties, or her failure to engage in such activities , or that it was for the purpose of encouraging or discouraging union activities." "The stenographic transcript contains the word "process" in place of protest " "Protest," however, coincides with the Trial Examiner's recollection and is clearly indicated by the context d1 Steward Shaw, who discouraged Lalonde in February 1968 (see supra), filed Kessler's grievance 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner finds it unnecessary to deter- mine which of these versions is correct-they might well both be true. The salient fact, shown by the testimony of both sides, is that Lalonde's nonunion status was brought into the open as a consideration. Thus, the "Company knew-or, at the very least, had some reasonable basis for belief-that Respon- dent Union was seeking" to deprive Lalonde of the cathode tab job for impermissible reasons. Parisian Bakeries, Inc., 169 NLRB 1047. It is established that a transfer without change in pay or classifica- tion can constitute unlawful discrimination . Monroe Auto Equipment Company, 169 NLRB 142, enfd. 420 F.2d 861 (C.A. 5). Thus, had GE transferred Lalonde from the cathode tab to the flange weld job because of the Union's discriminatory demand, it would have violated Section 8(a)(3). Ac- cordingly, Respondent violated Section 8(b)(2) by attempting to keep the cathode tab job from her. CONCLUSIONS OF LAW 1. General Electric Company is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 320 , International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is, and all material times has been , a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By seeking to prevent employee Katherine Lalonde from securing and retaining assignment to full-time work as a cathode tab welder in the Television Components Department of the General Electric Company plant in Syracuse, New York, Respondent has restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By attempting to cause General Electric Com- pany to discriminate against Katherine Lalonde with respect to her work assignment in violation of Section 8(a)(3) of the Act, Respondent has en- gaged in and is engaging in an unfair labor practice within the meaning of Section 8(b)(2) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce and constitute unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 21 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event THE REMEDY It will be recommended that Respondent cease and desist from the unfair labor practices it has committed. Affirmatively, it will be recommended that Respondent notify the Employer that Respon- dent has no objection to the assignment of Katherine Lalonde to full-time cathode tab welding. Posting of notices in the manner customary in such cases will also be recommended. RECOMMENDED ORDER Upon the entire record , and pursuant to Section 10(c) of the Act, the Trial Examiner recommends that Respondent, Local 320, International Union of Electrical , Radio and Machine Workers, AFL-CIO-CLC, its officers, agents , and represen- tatives , shall: 1. Cease and desist from: (a) Failing , while acting as exclusive bargaining agent for employees at the Syracuse , New York, plant of General Electric Company, to represent all such employees in a fair and impartial manner. (b) Causing or attempting to cause the above- named Company to discriminate against Katherine Lalonde , or any other employee, with regard to hire , tenure of employment , or any other term or condition of employment, including job assign- ments, in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing employees in the exercise of rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action , which it is found will effectuate the policies of the Act: (a) Notify the appropriate representatives of General Electric Company's Television Com- ponents Department in Syracuse , New York, that Respondent has no objection to the assignment of Katherine Lalonde to full-time work as a cathode tab welder. (b) Post at its business office and meeting halls, if any, and on bulletin boards, if any, maintained by Respondent on company premises , copies of the at- tached notice marked "Appendix."2' Copies of said notice , on forms provided by the Regional Director for Region 3, after being duly signed by Respon- dent's authorized representative, shall be posted by it immediately upon receipt thereof , and be main- that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " LOCAL 320, ELECTRICAL WORKERS tained 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 by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Mail to the Regional Director for Region 3 signed copies of the "Appendix" for posting by General Electric Company, the latter being willing. Copies of said notice , on forms provided by the Re- gional Director , shall, after being duly signed by the Respondent 's representative , be returned forthwith to the Regional Director for such posting. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.22 M In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the law and has ordered us to post this notice telling our mem- bers what we have been ordered to do and not to do in the future. The Board has ordered us to tell you that WE WILL: Inform the Television Components Depart- ment of the General Electric Company in Syracuse, New York, that we have no objec- tion to the assignment of Katherine Lalonde to 1095 full-time work as a cathode tab welder. The Board has ordered us to tell you that WE WILL NOT: Attempt to cause the above-named Com- pany to withhold from Katherine Lalonde full- time work as a cathode tab welder. Make any attempt to cause the above-named Company to discriminate against Katherine Lalonde or any other employee in the exercise of rights guaranteed in Section 7 of the Act (except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act). In any like or related manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act (except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment, as authorized in Sec- tion 8(a)(3) of the Act). Dated LOCAL 320, INTERNATIONAL UNION OF ELECTRICAL , RADIO AND MACHINE WORKERS, AFL-CIO-CLC (Labor Organization) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced , or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office, 4th Floor, The 120 Building, 120 Delaware Avenue , Buffalo, New York 14212, Telephone 716-842-3112. By