Dresser Industries Inc.

DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV. Dresser Industrial Valve & Instrument Division, Dresser Industries Incorporated and Beulah M. Gay. Case 9-CA-4917 August 29, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN AND ZAGORIA On April 1, 1969, Trial Examiner Ivar H. Peterson issued his Decision and on April 16, 1969, an erratum thereto, 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 Decision The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to 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. 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found, and we agree that this is not an appropriate case in which to defer to the grievance-arbitration procedures included in the contractual agreement between the Union and the Respondent.' The Trial Examiner found that Respondent transferred and subsequently discharged Mrs. Gay in violation of Section 8(a)(3). The Respondent excepts, contending that the record considered as a whole does not support the Trial Examiner's findings. We find merit in the Respondent's exceptions. As more fully set forth in the Trial Examiner's Decision the incident which gave rise to this proceeding took place on May 15, 1968' when Mrs. Gay, the union steward in her department on the 'in so finding, however, we do not adopt the Trial Examiner's statement that "the earlier cases such as Consolidated Aircraft. 47 NLRB 694, enfd 141 F 2d 785 (C A 9), have in effect been overruled Nor do we find it necessary to adopt the Trial Examiner's remarks concerning waiver (fn 12 of Trial Examiner's Decision)" In addition, Member Zagoria does not adopt the Trial Examiner's reliance on Unit Drop Forge Division. 171 NLRB No 73 He regards that case, which involved an alleged violation of Sec 8(a)(5) as inapposite to the alleged 8(a)(3) violations involved herein 317 day shift, motioned superintendent Steffen over to her machine to present two written grievances about which she had spoken to Steffen on the previous day. Since Steffen did not want to accept the grievances Mrs. Gay put them in his shirt pocket as he was leaving. Shortly thereafter, (Mrs. Gay testified about 5 minutes; Steffen testified half an hour;)' Steffen returned and told Mrs. Gay she would have to go on the night shift. Mrs. Gay testified she told Steffen she could not work nights and would bring in a doctor's certificate to that effect. Steffen testified the only reason Mrs. Gay gave for refusing to work on the night shift was a transportation problem In any event, Mrs. Gay did not go on the night shift, but worked on her regular job as solderer for the remainder of the week. On May 17, Mrs. Gay accompanied by Union President White presented a doctor's statement4 to Steffen along with a grievance against him; the grievance among other things alleged that Steffen had tried to bribe Mrs. Gays and had transferred her because she had submitted the May 15, grievances. On Friday, May 18, Steffen told Mrs. Gay that she would go on the FX assembly line on the day shift the following Monday. The FX job paid 6 cents per hour less and required that she give up her position as union steward in the soldering department (the department to which she was being transferred had a union steward). On May 23, Mrs. Gay along with Arnold, an international representative of the Union, met with Steffen and works manager Buda. Buda asked her why she had not bid on the jobs that had been posted after her transfer; Mrs. Gay gave various reasons for not bidding on those jobs and asked for her old job back. On June 7, Mrs. Gay obtained another statement from her doctor, which indicated that due to dislocated ribs (suffered in her February automobile accident) she was unable to perform work which put her in a straining position; she gave this statement to Union President White. White testified he thought that he had turned it over to the Respondent. On June 12, a meeting under the fourth step of the grievance procedure was held to discuss Mrs. Gay's grievance, particularly that part of it alleging 'Unless otherwise indicated all dates refer to the year 1968 it should be noted that the Trial Examiner credited all of the witnesses He stated that " the various witnesses on the whole, aside from one incident involving Mrs Gay, conducted themselves in a manner inspiring confidence in their essential integrity." And he subsequently stated, " my assessment of Mrs Gay and the several other witnesses who appeared before me is that each of them sincerely attempted to tell the truth `The doctor's statement read as follows Beulah Gay has not completely recovered from injuries suffered in an accident February 1968 In my opinion she is not physically able to work at night. Upon her return to work in April she had presented a doctor's statement which said only that she would be "physically able to return to work April 1, 1968 " 'The Trial Examiner dismissed 8(a)(1) allegations based on this conduct There is no exception 178 NLRB No. 51 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that her transfer resulted from the fact that she had presented two grievances to Steffen. The meeting was attended by Respondent's director of industrial relations Hoekenga and Union International representative Arnold. As in the earlier steps of the grievance procedure, it was concluded that Mrs Gay's transfer was in accordance with a prior decision of management made prior to her notifying management she intended to file two grievances.` Mrs. Gay last worked on June 15, the following work day she sent word by her daughter that she would not be returning to work. Thereafter, she received a letter dated June 17, from works manager Buda which stated that since May 21 she had been offered several positions on the first shift; the jobs offered were enumerated in the letter. The letter concluded If you cannot perform any of the duties associated with these positions, you may apply for a leave of Absence ... . If you refuse to accept any of the positions offered and do not apply for a leave of absence, you will be terminated Mrs. Gay did not reply to this letter. The Trial Examiner found that Steffen's transfer of Mrs. Gay was "inseparably related to Mrs Gay's insistent presentation of the two grievances" and violative of Section 8(a)(3) and (1) of the Act That the decision to transfer a day shift solderer to nights was made several days prior to Mrs Gay's transfer was established by Steffen's uncontradicted testimony and corroborated by foreman Mullins and group leader Barbara Alexander (group leader is a nonsupervisory position) And quite significantly, on May 15, prior to Steffen's informing Mrs. Gay of her transfer to the night shift, Buda had asked Steffen whether he had transferred a solderer to nights pursuant to Buda's earlier instructions. Upon Steffen's reply that he had not, Buda said, "All right. I'm telling you now. Let's move ►t today." It having been established that a solderer was to be transferred, the question remains as to whether the Respondent discriminatorily chose Mrs Gay for transfer According to the collective-bargaining agreement such determinations are to be made on the basis of seniority. The record establishes, and the Trial Examiner in fact found, that Mrs. Gay was the junior solderer on the day shift in the soldering department. As such she was subject to transfer unless she enjoyed "bumping rights" with respect to classifications other than solderer within the soldering department. The Trial Examiner found that according to the literal provisions of the contract, inasmuch as no layoff was involved, Mrs. Gay did not enjoy bumping rights within her department. Likewise the record reveals that Mrs. Gay was told by both Steffen and Union president White that she could not "bump" in these 'At the third step of the grievance procedure it had been concluded that Mrs Gay had been transferred with due regard for the rules of seniority circumstances. Nevertheless, the Trial Examiner, relying on certain testimony of Hoekenga, Respondent's director of industrial relations, found, in effect, that Mrs. Gay should have been allowed "bumping rights" with respect to other more junior employees within different classifications in her department; he noted that there were three such junior employees However, the Trial Examiner apparently neglected to consider a subsequent colloquy between himself and Hoekenga' wherein Hoekenga clarified his earlier testimony and made it quite clear that in the instant situation Mrs Gay did not enjoy bumping rights. It thus appears not only that the decision to transfer a solderer was made several days prior to the alleged discriminatory transfer, but that Mrs. Gay as junior solderer was subject to transfer and not entitled to bump other employees in her department. In these circumstances, we do not believe that Respondent was obliged to alter the existing seniority rules in Mrs. Gay's favor, and thereby discriminate against other employees. In our opinion the only factor (and the fact on which the Trial Examiner apparently relied) which tends to support to an 8(a)(3) finding is the timing of Mrs Gay's transfer. And while we agree that the circumstances of her transfer and particularly the timing are suspect, more than suspicion is required to find an 8(a)(3) violation.' Accordingly, we are unable to find the transfer of Mrs. Gay violative of Section 8(a)(3). With respect to Mrs. Gay's termination the Trial Examiner stated. Since I have found that the transfer of Mrs. Gay was tainted by discriminatory considerations, and inasmuch as it fairly appears that the jobs thereafter assigned her involved severe physical discomfort for her, a fact known to Management, I think it logically follows that her quitting her job on June 15 must be viewed as a constructive discharge induced by similar discriminatory 'Q (By Mr Murphy) With regards to these bumping rights and in particular with regards to Mrs Gay , when she was notified of her transfer to the night shift, is it your testimony that she could then displace someone on the first shift`? A No Normally, the junior person in the classification , if they need to equalize the shift, would automatically go to second shift TRIALEXAMINER Let me pose this so that I have it clearly in mind as to what your testimony is Assuming that Mrs Gay at that time had seniority over at least one solderer and the need was for the movement of one solderer to the second shift, Mrs Gay would have stayed on the first shift , is that correct`? THE WITNESS Yes TRIAL EXAMINER In other words , the most junior person in the soldering classification would have gone to the second shift'? THE WITNESS Yes TRIALEXAMINER Assuming that she was the junior solderer on the first shift but she held seniority over some people on the first shift in that department who were performing other work but work which she was qualified to perform , what would have happened? THE WITNESS She would have gone on second shift TRIAL EXAMINER She would have had no bumping rights'? THE WITNESS Right 'See Technical Maintenance, Inc 172 NLRB No 60, G H Hicks and Sons. Inc, 141 NLRB 1272 DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV. motives on the part of' the Respondent. I so find, and accordingly conclude that Mrs Gay's termination of employment was violative of Section 8(a)(3) and (1) of the Act. The Trial Examiner's finding that Mrs. Gay was constructively discharged is thus predicated on his finding that her transfer was discriminatorily motivated Because we do not agree that Mrs. Gay's transfer was discriminatorily motivated, we are unable to find that she was constructively discharged in violation of 8(a)(3) In conclusion, since we find neither the transfer of Mrs. Gay nor her purportedly constructive discharge violative of' the Act, we shall dismiss the complaint in its entirety ORDER Pursuant to Section 10(c) of' the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER BROWN, concurring The underlying dispute in this case, namely, alleged discriminatory conduct respecting union steward Beulah Gay, was taken up under the settlement procedures of' the parties' operative agreement upon a grievance filed by Mrs. Gay. The matter was finally resolved by responsible representatives of' the contracting parties at the fourth stage of the dispute procedures outlined in their agreement, without having to go to arbitration. So far as the record establishes, the Union prosecuted the matter diligently and fairly, and the record discloses no basis for impugning either the manner or the reasonableness of the Union's handling of the grievance. Having invoked the contractual procedures and lost, Mrs. Gay now seeks the same relief through the charge filed by her in the present case. To entertain this charge and the General Counsel's consequent complaint undercuts in effect the agreed upon procedures of the parties, and, in my opinion upon consideration of all attending circumstances, does not effectuate declared national policy in this area ' I accordingly loin my colleagues in dismissing the complaint, but do so without reaching the merits of the dispute 10 'Steelworkers v Enterprise Wheel & Car Corp , 363 U S 593 "See my separate opinions in Thor Power Tool Co , 148 NLRB 1379, 1381-83, Cloverleaf Division of Adams Dairv Co , 147 NLRB 1410, 1420-25 TRIAL EXAMINER'S DECISION STATFMI NT o1 THE CASE IvAR H PETI RSON, Trial Examiner This case was tried before me at Berea, Kentucky on February 6 and 7, 1969 It was initiated by a charge filed on October 15, 1968, and a complaint issued on December 5, 1968, alleging that the 319 Respondent, Dresser Industrial Valve & Instrument Division, Dresser Industries, Inc., had violated Section 8(a)(1) and (3) of the Act by the transfer and constructive discharge of the Charging Party, Mrs Beulah M. Gay, on or about May 15 and June 24, 1968, respectively ' At the commencement of the hearing, the Respondent filed a motion to dismiss the complaint on the ground, inter alga, that the issues involved should have been allowed to be handled by the grievance procedure provided in the existing collective-bargaining agreement which the Respondent had with Local 399, International Union, Allied Industrial Workers of America, AFL-CIO, herein called the Union This motion was denied, without prejudice to the Respondent's right to renew it later At the conclusion of the General Counsel's case, the Respondent renewed the motion and, in addition, orally moved that the balance of the allegations in the complaint be dismissed for failure to make a prima facie case I denied both motions. Subsequent to the hearing, the General Counsel and the Respondent on March 20 filed helpful briefs which have been carefully considered. In its brief the Respondent renewed its motion to dismiss. For the reasons hereinafter stated, the motion is denied Upon the entire record in this proceeding and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, is engaged at its Berea, Kentucky, plant in the manufacture of industrial valves This plant is the only one involved in this proceeding. During the 12 months preceding issuance of the complaint, a representative period, the Respondent sold and shipped products valued in excess of $50,000 from its Berea plant directly to points outside the State of Kentucky The Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act It. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find, that Local 399, International Union , Allied Industrial Workers of America , AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act III. THE UNFAIR LABOR PRACTICES A. Preliminary Statement and Issues At all times here material the Respondent and the Union were parties to a collective-bargaining agreement which, among other things, provided (section 5, article II) that "There shall be no discrimination against employees because of legitimate Union activity," and, in Section 1 of Article V provided [s]hould any dispute or difference arise between the employees and the Company as to the meaning, application or operation of any of the provisions of this Agreement, such dispute or difference shall within fourteen (14) working days following the alleged 'Unless otherwise indicated all dates refer to the year 1968 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incident or dispute be submitted to the grievance procedure. This procedure, consisting of four steps, further provided that any unresolved grievance, after having progressed through the fourth step, could be submitted by either party to final and binding arbitration. The Charging Party, Mrs. Gay, had been employed for about 2 years and at the time in question was a union steward in the soldering department. On May 15, Mrs. Gay submitted to Darrell Steffen, the plant superintendent, two written grievances involving two employees, Sarah Parker and Lorene McClure. Within a matter of about 5 minutes after submitting the grievances Mrs. Gay was notified by Superintendent Steffen that she was being transferred from the day shift to the night shift. She protested this action, for reasons which will appear, and, on May 17, filed with Steffen a detailed grievance on her own behalf complaining about a variety of things including an alleged attempt by Steffen to bribe her in connection with her union duties. Mrs. Gay was transferred to other work on the day shift and thereafter, on June 15, she quit her employment for the stated reason that, due to serious physical injuries she had sustained in February as a result of an automobile accident, she could not perform the duties to which she had been assigned. Mrs. Gay's grievance progressed through the grievance procedure, culminating in a decision on June 12 by the Director of Industrial Relations, Thomas Hoekenga and J. B. Arnold, International representative of the Union. The matter involved in Mrs. Gay's grievance concerned her transfer as well as the other allegations of misconduct on the part of Superintendent Steffen. Hoekenga and Arnold concurred in a finding that there was no discrimination against Mrs. Gay and that her transfer had been ordered in accordance with a decision made by Works Manager Buda prior to May 15 for reasons wholly concerned with the proper management of the plant. Although Mrs. Gay urged the Union to pursue the grievance further by taking it to arbitration, the Union determined not to do so. The issues thus presented are twofold: (a) the factual one, whether Mrs. Gay's transfer and subsequent termination of employment were discriminatorily motivated; and (b) the legal question whether under the Board's decisions in this area I should defer to the grievance-arbitration machinery provided by the collective-bargaining agreement and, in consequence thereof, refuse to pass upon whether or not Mrs. Gay's transfer was discriminatorily motivated. Counsel for the Respondent very ably argues that, in harmony with the underlying policy of the Act and the applicable Board and Court decisions I should defer to the private machinery provided for the settlement of industrial disputes. On the other hand, counsel for the General Counsel urges that the principles established by the Board for deferring to the grievance-arbitration machinery are inapplicable in the present circumstances particularly because what is here involved is the exercise of a statutory right by the Charging Party which, absent a clear and unmistakable waiver, must be vindicated in an unfair labor practice proceeding. For the reasons hereafter stated, I am persuaded that this is not an appropriate instance for deferring to the machinery provided by the private parties for the settlement of differences or disputes. B. The Applicable Deferral Principles It is, of course, clear that the Board's jurisdiction over unfair labor practices is exclusive. Section 10(a) of the Act provides that the Board's power to prevent any person from engaging in unfair labor practices "shall not be affected by any other means of adjustment or prevention that had been . . . established by agreement, law, or otherwise." However, consistent with the Congressional policy to encourage utilization of agreements to arbitrate grievance disputes,' the Board, in the exercise of its discretion, will under appropriate circumstances withhold its processes in deference to an arbitration procedure. As early as 1943,' the Board had occasion to consider whether it should defer to the grievance-arbitration procedure provided by the parties' collective-bargaining agreement. In that case, the Board concluded that it would not pass upon certain allegations of violations of Section 8(5) of the Wagner Act by reason of unilateral acts and Section 8(3) by reason of the discharge of certain employees, stating. We are of the opinion, however, that it will not effectuate the statutory policy of "encouraging the practice and procedure of collective bargaining" for the Board to assume the role of policing collective contracts between employers and labor organizations by attempting to decide whether disputes as to the meaning and administration of such contracts constitute unfair labor practices under the Act. On the contrary, we believe that parties to collective contracts would thereby be encouraged to abandon their efforts to dispose of disputes under the contracts through collective bargaining or through the settlement procedures mutually agreed upon by them, and to remit the interpretation and administration of their contracts to the Board. We therefore do not deem it wise to exercise our jurisdiction in such a case, where the parties have not exhausted their rights and remedies under the contract as to which the dispute has arisen. It should be noted that in the cited case, as here, the arbitration procedure had not been utilized. In Speilberg,' the Board, faced with a contention that a complaint should not have been issued and no findings of unfair labor practices should be made in the face of an arbitration award dismissing the matter involved in the unfair labor practice charge, stated that where "the [arbitration] proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act," the Board believed "that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the arbitrators' award" and, accordingly, dismissed the complaint in its entirety. The problem here, as I conceive it, is when and under what circumstances it is appropriate to defer to the grievance, arbitration procedure that has been provided by the parties for the settlement of disputes, whether or not the dispute involves matters clearly within the scope of the rights guaranteed employees by Section 7 of the Act. As I read the cases, the invocation of the deferral principle is not controlled by whether or not the private machinery has been invoked, although the Board's more recent expressions appear to confine the principle to instances where arbitration has in fact been used. Thus, in. For example, Textile Workers Union v Lincoln Mills , 353 U.S. 448, United Steelworkers v. Warrior & Gulf Navigation Co. 363 U S 574, 578-581. 'Consolidated Aircraft Corporation , 47 NLRB 694, 706, enfd. 141 F 2d 785 (C.A. 9). 'Speilberg Manufacturing Company, 112 NLRB 1080, 1082. DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV. Consolidated Aircraft, supra, it is clear that the parties had not processed the matters on which the Board deferred exercising its jurisdiction through any step of the grievance-arbitration provisions' As recently as 1965 the Board, in American Oil Company," adopted without comment a Trial Examiner's Decision dismissing the complaint in its entirety on the ground that there existed grievance-settlement machinery as provided in the contract of the parties. In that case, a panel majority, with Chairman McCulloch concurring, apparently adopted the Trial Examiner's ultimate recommendation that the complaint be dismissed, which was bottomed upon the Board's language in Crown Zellerback (95 NLRB 753), where the Board stated that it was reluctant to issue any remedial order in a situation where "the parties have failed to utilize the contractual procedures established for bargaining concerning the interpretation and administration of their contract "' Here the parties have established a detailed grievance procedure which was utilized to consider the problems raised by Mrs Gay as well as her transfer from the soldering department to the FX assembly line This procedure, had it been pursued beyond the fourth step where it ended, would have resulted in final and binding arbitration I note that in Article Ill of the contract, dealing with management rights, the parties have agreed that the right to hire, discharge for proper cause, "promote or transfer employees from one class of work to another," and to determine and change production methods, departments, facilities, equipment and schedules and the work to be performed "is vested exclusively in the Company, but shall not he inconsistent with the Terms of this Agreement " It seems evident, therefore, that the several grievances raised by Mrs Gay, as well as her transfer, were cognizable not only under the grievance but also the arbitration provisions of their collective agreement Mrs Gay's grievance covered a variety of accusations The first item, however, was fairly specific in that it alleged that Steffen notified her 5 minutes after she gave him the Parker and McClure grievances that she would have to go on the night shift In processing the grievance management noted, at the second step, that the "decision to transfer a day shift soldering department employee to the second shift was made to balance the work force and was originated by the Works Manager several days before this complaint." Further, the decision at this step noted that Mrs Gay was transferred with due regard for the rule of seniority since she was the least senior employee in the soldering department However, it further noted that since the transfer imposed a hardship upon Mrs Gay, by reason of her physical condition, she was offered a job on the first shift At the third step Works Accountant Sculley, on May 30, 1968, concluded, as is indicated in the grievance file, that Works Manager Buda had ordered 'In McDonnell Aircraft Corporation, 109 NLRB 930, 934-935, the Union specifically refused to take the matter to arbitration In The Borden Company , 110 NLRB 802 - 805, and Crown Zellerback Corporation, 95 NLRB 753, although no step of the grievance-arbitration machinery had been utilized the Board nonetheless expressed the view that it would effectuate the policies of the Act to defer thereto '152 NLRB 492 'I am aware, however, that in several cases decided shortly before American Oil members of the Board expressed some divergence of thought concerning the application of the deferral principle See Cloverleaf Division of Adams Dairy Co , 147 NLRB 1410, Dubo Manufacturing Corporation , 142 NLRB 431, Thor Power Tool Company , 148 NLRB 1379 See also Producers Grain Corporation , 169 NLRB No 68 321 Superintendent Steffen to make this transfer "several days before this complaint " In passing, however, I note that Sculley did not negate the clear implication in Mrs Gay's grievance that the transfer was occasioned by her presentation of two grievances At the fourth step, which occurred on June 12 at a meeting between the director of industrial relations, Hoekenga, and International Representative Arnold, the answer given by them was that the transfer was in accordance with a prior decision of management and, respecting the "other allegations set forth," the answer was that they "will be investigated and the appropriate action taken " Hoekenga testified that a substantial part of the meeting on June 12 was devoted to a consideration of Mrs Gay's grievance. He and Arnold, as well as the bargaining committee of the Union, were assured that Buda had made a previous decision to effect a transfer of a soldering department employee from the first to the second shift, that this had been made "many days prior" to May 15 when Mrs Gay was notified, but that Steffen "had been lax in carrying it out." With respect to the various allegations of discrimination and bribery, the parties on June 12 concluded that these would be investigated to ascertain whether any cause therefor existed Hoekenga testified credibly and without contradiction that these were discussed with Superintendent Steffen and, "after thorough investigation," it was decided that no grounds for these allegations existed This decision was communicated to Arnold and to Union President White' Mrs Gay was not interviewed by Hoekenga and Arnold, so far as the record indicates; however, it does appear that Works Manager Buda conferred with her regarding the allegations she made against Steffen I credit Mrs Gay's testimony that she urged President White of the Union to pursue the grievance further but that he declined to do so In Cloverleaf Division of Adams Dairy (147 NLRB 1410, at 1415-16), the Board considered whether it was appropriate to defer to the arbitration process. The Board there concluded that none of the conditions that in the past had impelled the Board to defer was present, observing In the instant case, it does not appear that there is already in existence an arbitration award passing on matters that bear on the ultimate issue we must decide, and to which we are asked to give weight or effect Indeed, it affirmatively appears that neither party has even so much as sought to invoke arbitration. Nor is this a case involving an alleged unfair labor practice, the existence of which turns primarily on an interpretation of specific contractual provisions, unquestionably encompassed by the contract's arbitration provisions, and coming to us in a context that makes it reasonably probable that arbitration settlement of the contract dispute would also put at rest the unfair labor practice controversy in a manner sufficient to effectuate the policies of the Act. On the contrary, it is highly conjectural that arbitration in this case, even if resorted to by the Union, could have effectively disposed of the basic issue in this case - whether Respondent acted lawfully in engaging in the unilateral actions to which the instant complaint is addressed Under all the circumstances, therefore, we are unable to agree with the conclusion of the Trial Examiner that even though Respondent's unilateral 'Works Manager Buda did not testify, it clearly appearing that he is in extremely poor health and as a result could not be called as a witness 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action provides a statutory basis for doing so, the Board ought not in this case exercise its power to remedy Respondent's unfair labor practice. Rather, we believe that for us to dismiss this complaint on the ground he states would be an unwarranted abuse of our statutory responsibilities. More recently in the Unit Drop Forge case,' which involved unilateral action with respect to changing methods of operation and compensation, the Board majority declined to defer to the contractual grievance-arbitration procedure. It said. Contrary to our dissenting colleagues, who concedes that the availability of grievance-arbitration procedures does not preclude the Board from exercising its undoubted authority to assert jurisdiction over the unfair labor practices herein, we find ample reason for doing so in the instant proceeding. The Board is the forum chosen to decide the issue of, and to remedy, the asserted violation of employees' statutory rights. The controversy is not one that is beyond our competence to resolve, and as long as it is unresolved it may have a continuing impact on the bargaining relationship. The Board's remedial authority is likewise clear and adequate. The parties have litigated the matter fully, and it is over a year since the events giving rise to the dispute occurred. We are unwilling, therefore, to withhold our determination in these circumstances and to send the parties away empty-handed to seek their resolution elsewhere. As the Court of Appeals for the Eighth Circuit stated in its Huttig opinion, it is desirable "to avoid delay either in the courts or in the arbitration process; to emphasize and protect in cases of doubt, and to give priority to, statutorily declared rights; to regard as no more than secondary any contract interpretation aspect of what is regarded as basically an unfair labor practice dispute . .; to take a broad, and not a narrow or technical, approach to the Act .; and not to close the door upon Board expertise when such restraint is clearly not violative of congressional mandate." The principle which appears to emerge from these more recent cases, is that, in general, the Board will decline to make a finding of an unfair labor practice violation and will defer to arbitration where the parties have already obtained an arbitrator's decision, or are in the process of obtaining such a decision, and where it is "reasonably probable that an arbitrated settlement of the contract dispute would also put at rest the unfair labor practice controversy in a manner sufficient to effectuate the policies of the Act."'° It seems apparent, although the Board has not expressly done so, that the earlier cases such as Consolidated Aircraft have in effect been overruled or at the least confined to their particular facts'' 'Unit Drop Forge Division, 171 NLRB No 73. "Adams Dairy, supra, at p. 1416. "The penetrating observation of Justice Douglas, dissenting in N.L.R B v Strong, 393 U S 337, may have some pertinency here, especially when we consider the Board's disinclination to defer to the grievance, in contrast to arbitration, procedures established by collective bargaining in conjunction with the agency's increased case load and consequent alleged decisional delay "The jurisdiction of any agency or branch of government has a built-in impetus for growth and expansion Seldom does a department restrict its powers narrowly and assume a self -denying attitude The tendency is to construe express powers broadly. The organism grows by subtle and little-noticed extensions of authority To students of government this phenomenon is as predictable as the operation of other so-called 'laws "' In harmony with the Board's principles, and controlling court decisions, as I understand them, I conclude that this is not an appropriate case in which to defer to the grievance-arbitration procedures contained in the contractual arrangement between the parties.12 C. The Transfer and Termination of Mrs. Gay 1. The transfer Beulah M. Gay went to work for the Respondent in September 1966 and continued until she quit on June 15, 1968. She worked on a number of jobs but from about the first of January 1967 she was a solderer on the first shift in the soldering department. In November 1967 she underwent major surgery and was off approximately 2 months on that account. Early in February 1968, after she had returned to work for about 4 weeks, she was seriously injured in an automobile accident which required that she be hospitalized for about 2 months. She returned to work early in April." Shortly after she returned in April Mrs. Gay was elected union steward by the other employees in her department. As steward, it was her duty to attempt to adjust grievances and, failing that, to assist employees in preparing written grievances. Thereafter her responsibility in the grievance procedure came to an end. On April 19, Mrs. Gay prepared a written grievance involving an employee named Hazel Gadd. This grievance asserted that Foreman Herbert Mullins, of the soldering department, had given Mrs. Gadd a written warning for leaving the "Perhaps it would be unnecessary in this case to reach a consideration of the deferral principle in view of the fact that the parties ' contract appears not to contain a clear and unmistakable waiver of assertion of statutory rights guaranteed by Section 7 of the Act. However, in view of the vigor and earnestness with which the Respondent has argued the deferral principle, it has appeared to me advisable to deal with it rather than to dispose of this aspect of the case on the narrow ground of lack of clear and unmistakable waiver. But the management rights provision, quoted above, cannot be regarded as an express waiver of the right to pursue statutory remedies rather than the grievance machinery. Moreover, it is clear, perhaps contrary to earlier Board decisions previously cited , that the "mere existence" of a grievance machinery terminating in arbitration is not to be construed as a waiver of the Union's statutory right to invoke the Act. It is settled law that a waiver of statutory rights will not be inferred , but must be clear and unmistakable . See e.g., N L.R B v. Perkins Machine Co., 326 F.2d 488 (C A. 1); Timken Roller Bearing Co v. N.L R B.. 325 F 2d 746, 751 (C.A 6), cert denied 376 U S. 97I; N.L,R B v. Item Co . 220 F 2d 956, 958-959 (C A 5), cert. denied 350 U.S. 836, N L R B. v . Yarmen & Erbe Mfg Co, 187 F.2d 947, 949 (C A. 2); and Fafner Bearing Co v. N.L R B., 362 F.2d 716, 722 (C.A. 2) See N L.R B v . Acme Industrial Co.. 385 U.S. 432, where the Supreme Court dealt with this problem . There the Court, reversing the judgment below, pointed out that the Steelworkers Trilogy, upon which the court below relied , "dealt with the relationship of courts to arbitrators when an arbitration award is under review or when the employer 's agreement to arbitrate is in question," a situation in which the "arbitrator's greater institutional competency , which was so vital to those decisions, must be evaluated in that context." On the other hand , the "relationship of the Board to the arbitration process is of a quite different order." The Court further noted that the Board's action in asserting jurisdiction did not constitute an intrusion "upon the preserve of the arbitrator" but "was in aid of the arbitral process," since "if all claims [had] to be processed through to arbitration" then the system would be woefully overburdened- a condition which was precisely what the Respondent 's restricted view would require as it would "force the Union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claims." "Her doctor's statement said that she would be "physically able to return to work April 1, 1968 " The statement contained no restrictions, as the Respondent points out in its brief. DRESSER INDUSTRIAL VALVE &INSTRUMENT DIV plant without notice The answer, given by Plant Superintendent Steffen, stated that Mrs Gadd had not been given a written warning but only a verbal reprimand and that if her attendance remained good the verbal warning would not operate to her prejudice. On May 15, Mrs Gay wrote out two additional grievances involving Foreman Mullins, one concerning Sarah Parker and the other Lorene McClure Both grievances involved the assignment of overtime on Saturday, May 4, and both were eventually processed through the fourth step of the grievance procedure Mrs Gay testified that before filing these grievances she discussed them with Foreman Mullins and also with Superintendent Steffen and Alvin White, president of the Union It is her testimony that during the 10-day interval before she filed grievances she went over the substance of them with Foreman Mullins, claiming that Mrs. Parker and Mrs McClure should have worked the overtime on Saturday, May 4, rather than two other employees. According to Mrs. Gay she told Mullins that the girls "had a hard feeling" because of the fact that "two of the other girls who didn't have the seniority" worked the Saturday overtime. She testified that Foreman Mullins admitted that he was in the wrong and stated that he would give Parker and McClure the next overtime. Mrs Gay also testified that she told Steffen about the grievances and that he told her that "seniority didn't count " However, subsequently Steffen "admitted that he was in the wrong," and stated that Parker and McClure would be given the next overtime However, they did not get it. According to Mrs Gay, the employees were not satisfied with Steffen's promise since they felt that they should be compensated for the overtime that rightfully should have been worked by them Steffen, in the conversation with Mrs. Gay, told her that by the end of the year the overtime in the soldering department would be equalized and all employees would have had a fair and equitable distribution of overtime Mrs Gay testified that on May 14 she informed Steffen, who was near her machine, that she was going to have to write up the grievances involving Parker and McClure According to her, Steffen "then bent over my right shoulder and put his head almost against my head and he says, `Now, Beulah, forget about the grievances and forget about the Union."' Mrs. Gay replied that she could not do that but he continued to press her to forget about the grievances and forget about the Union, adding if she would do as he suggested "you and I will get along fine " Mrs Gay remained adamant and the next day filed the written grievances It is her testimony that on May 15 she motioned to Steffen and he came over to her machine She then told him that she had the grievances but he said that he would not accept them Thereupon she "stuck them in his shirt pocket" and told him that he would have to accept them Five minutes after having given Steffen the grievances he returned to her machine and the following then transpired. Q. Did you have any further conversations that day with Mr Steffen" A Five minutes later he came back and he says, "Beulah, you'll have to go on night shift " TRIAL EXAMINER. What time of the day was that? THE WITNESS: That was before noon. TRIAL EXAMINER: Go ahead. THE WITNESS. He said, "You'll have to go on night shift You'll have your bumping rights and [in] your classification " 323 I said, "I can't go on night shift. I'll bring in a doctor's statement " He said, "You'll have to go on night shift." So I said, "Well, I'll take it to the Union President and to the Company," and I got up and left. I went to the Union President. Q Did he say when you were to report on night shift') A He didn't say and he didn't say what my duties would be. On or about May 16 Mrs. Gay called on her doctor, Dr S G. Marcum, who gave her a handwritten statement reading as follows: May 16, 1968 Beulah Gay has not completely recovered from injuries suffered in an accident Feb., 1968. In my opinion she is not physically able to work at night. (Signed) S G. Marcum On the morning of May 17 she brought this statement to work and conferred with Union President White concerning it. The two of them then went to see Steffen, and the following ensued Q What transpired at this meeting? This meeting with you, Mr. White and Mr. Steffen" A I gave him the doctor's statement and laid it on the desk and he refused it He said he wasn't going to have it I said, "You can take it or leave it " He said, "Why didn't you bring it in sooner9" I said, "Mr. Steffen, why didn't you tell me sooner I was going to have to change shifts " He got angry . I forgot the exact words he said and I said, "Here's some grievances that I have written out against you " At the meeting on May 17 Mrs. Gay apprised Steffen verbally of a series of grievances she had prepared concerning him. The following then transpired. A He glanced down at the grievances and kind of thumbed through them and he turned all colors and jumped up and, real loud, said "I am not going to stay here and take accusations TRIAL BCAMINER : Was Mr. White there? THE WITNESS: Mr White was there all the time. He was just sitting there. Q (By Mr Murphy) Go on? A. He said, "I'm going to have witnesses to this." I said, "All right. Bring in the whole shop and I'll tell them exactly how it happened." Steffen stated that he wanted a witness and thereupon brought in an office employee. After Mrs. Gay had recited her complaints against Steffen, the latter told White that he would give him (White) 10 minutes to "try and talk some sense in her head." White asked Mrs. Gay what she wanted and she replied that she wanted to operate the soldering machine that she had previously operated, claiming that it had been working that morning. After the conference in Steffen's office had gone on for some time, Works Manager Buda entered, claiming that he had received a telephone call at his home to the effect that some female employee was shouting at the superintendent. Mrs. Gay apologized for inconveniencing Buda and asserted that both she and Steffen had raised their voices. Mrs. Gay continued working at her regular job the balance of the week. During the afternoon of May 17 Mrs. Gay asked Steffen "about her bumping rights" during which Steffen in effect stated that seniority did not 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD count. According to Mrs. Gay there were several employees in the soldering department who had less seniority than she, mentioning specifically Kathy Morgan, Gladys Cates and Jesse Smith. During the course of the discussion with Steffen, when she mentioned that her rights were protected by the contract, Steffen replied that "the contract didn't mean anything to him." On Friday, May 18, Steffen told Mrs. Gay that she would go on the FX assembly line on Monday, May 20, on the first shift. This job paid 6 cents less per hour and, in addition, required Mrs. Gay to give up her position as steward in the soldering department. Mrs. Gay testified she did not report to work on Monday as she was involved in taking a variety of shots at the, doctor's office .14 On Tuesday, May 21, she came to work and started operating a machine called a seamer. She complained to White, president of the Union, to the effect that she did not think the Company had a right to take her out of the soldering department and thereby deprive her of her position as union steward. Mrs. Gay described the FX assembly job as involving considerable bending, twisting and sitting in a cramped position The latter, in particular, caused her to have difficulty breathing. She told the group leader, Ruby Thacker, of her discomfort and stated that she could not do the job. According to Mrs. Gay, Thacker replied, "They knew that when they sent you back here." On June 7 Mrs. Gay went to her doctor and he gave her a note referring to the fact that one of her injuries was a dislocated rib which prevented her from performing work that involved placing herself in a strained position. The doctor added that because of the pain she was experiencing she would have to be considered "disabled for such work for the present." Mrs. Gay gave this statement to Union President White and asked him to deliver it to Steffen. On May 21 Mrs. Gay complained to President White about her job assignment and on May 23 Mr. Arnold, the international representative of the Union, came and she, Arnold and the bargaining committee met with Works Manager Buda and Superintendent Steffen on that day. During this conference Buda referred to certain jobs that bad been posted following her transfer from the soldering department. Mrs. Gay testified that she gave various reasons why she could not successfully perform these fobs, principally because of her injuries. She asked for her old machine back several times and expressed a willingness to do anything else when it was not running. She was told that before she was taken off the machine a decision had been made to discontinue it. She then stated in substance that if she had been told of her transfer 5 minutes before, rather than 5 minutes after she had presented the Parker and McClure grievances "I would not have [had] any hard feelings." Nothing definite was decided at this conference regarding future assignments for Mrs. Gay. A few days thereafter Steffen came to her work station and showed her some yellow sheets of paper which he described as containing his answers to her grievances filed with him on May 17. Mrs Gay turned the answers over to White. 2. Mrs. Gay's termination Mrs. Gay's last day of work was June 15." Thereafter she received a letter, dated June 17, from Works Manager Buda which listed several jobs he claimed had been available prior to her quitting and which were still available. Mrs. Gay testified that the first job, an "However, the parties stipulated she worked on Monday , May 20. assembler in the FX department, was the job she "was offered that I couldn't do." The other position, assembler, ring and glass, she testified was usually a man's job since it involved lifting, twisting, turning and bending. She described it as "a real hard job to do." The third job, assembler, apply Bardahl to movements, was a temporary position on the first shift. According to Mrs. Gay, management did not explain the job to her but in any case she was not interested in a temporary job. According to Mrs. Gay the last day she worked was June 15, Saturday, and the following work day sent word by her daughter Linda that she would not be coming back. She related that prior to her quitting she had several times told the group leader, Ruby Thacker, that she "would just have to quit if I had to keep that job. I just couldn't do it. I told her several times." 3. Analysis and conclusions The General Counsel's theory is that Superintendent Steffen, piqued over Mrs. Gay's handing him the Parker and McClure grievances, which he felt were unmeritorious, decided and announced to her that she would be transferred to the second shift. The Respondent, on the other hand, asserts that there was need to equalize the number of solderers as between the first and second shift and that Mrs. Gay, being the junior in that classification, was told that she would be transferred to the night shift. The Respondent further contends that the decision to equalize the number of solderers on the two shifts had been made well in advance of May 14 when Mrs. Gay spoke about the grievances with Superintendent Steffen, but that the latter had been lax in implementing Mr. Buda's decision and acted on May 15 in response to Buda's admonishment that he, Steffen, proceed to effect the change that had been decided upon. The General Counsel further argues that having been discriminatorily transferred, Mrs. Gay was assigned jobs which the Respondent knew she could not physically perform because of her injuries; also, General Counsel urges that she was offered jobs that either did not exist or which she could not perform and that the Respondent well knew that she could not, by reason of transportation problems and her injuries, work on the second shift. Therefore, the theory goes, the Respondent in substance and in fact constructively discharged her because of her pressing her own and other grievances. At the outset in this attempt to discover where the basic truths lie, it seems appropriate to remark that this case was tried with dispatch on both sides and the various witnesses on the whole, aside from one incident involving Mrs. Gay, conducted themselves in a manner inspiring confidence in their essential integrity. To be sure, as is inevitable in adversary proceedings, differences emerge, sometimes more in the nature of nuances or perhaps mannerisms than in real content. This is not to say that decision has been made easier. The litmus paper of verity has yet to be perfected. Mrs. Gay impressed me as a person who, still suffering from major surgery and a subsequent serious automobile accident, all experienced in the 6 months before she appeared before me as a witness, would not knowingly prevaricate. Her ability to recount the details of what occurred in the shop more than 6 months before she testified seemed to me initially an exercise in memory; but "The parties stipulated that Mrs. Gay was absent on May 27, 29, 30, and June I. DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV. as the hearing went on I became convinced that Mrs. Gay had excellent recall.16 Contrary to the suggestion of counsel, I do not believe that should not be credited or that she harbored a feeling of resentment against Superintendent Steffen or anyone in the Respondent's hierarchy. In short, my assessment of Mrs. Gay and the several other witnesses who appeared before me is that each of them sincerely attempted to tell the truth. We start, then, with the circumstances attending Mrs. Gay's transfer from the soldering department. The evidence establishes that she was the junior solderer in that department and that the contractual arrangement limited the exercise of seniority rights to job classifications and was not department-wide." The record is further clear that seniority did not operate by shifts, with the result that employees in a particular classification were considered as a single group regardless of which shift they worked on. Much of the Respondent's case, doubtless not by arrangement, appeared self-serving. The failure to call Works Manager Buda was satisfactorily explained by counsel on the basis of serious illness. On the other hand, International Representative Arnold - who to my knowledge and observation was in attendance at the hearing-was not called as a witness. This surprised me, particularly since he and the Respondent's director of industrial relations, Hoekenga, together passed on Mrs. Gay's grievance against Steffen and the two grievances she filed on behalf of Mrs. Parker and Mrs. McClure. Although Union President White appeared as a witness at the Respondent's request, he was not examined in any detail regarding what transpired during the day-long meeting between management and the union bargaining committee and Arnold, nor were any of the other members of the bargaining committee called to relate their version of this important occurrence. While Mrs. Gay's detailed grievance against Steffen is rather loosely worded, it nonetheless goes into considerable detail about past events and would appear to call for something more than an interview with Steffen in order to warrant being considered as having been given a complete investigation. However, so far as appears Hoekenga did nothing more than talk with Steffen and obtain his version of the matters contained in Mrs. Gay's grievance. It does not appear that Hoekenga interviewed Mrs. Gay or, for that matter, any other employee in the plant. I think it fair to say that this falls considerably short of being a thorough investigation of serious allegations by an employee and "One somewhat distressing incident should be reported. When cross-examination of Mrs Gay began, Respondent's counsel noted that Mrs. Gay had some writing on the palm of her left hand. Upon inquiry as to its purposeanduse - it proved indecipherable-Mrs.Gay stated she had written some numbers there while sitting in the car before the hearing opened. No one, including the Trial Examiner , was able to say that she had at any point during her testimony referred to the writing Counsel for the General Counsel disclaimed all knowledge of the writing After I admonished Mrs. Gay, the hearing proceeded. While I view her conduct in this regard as ill-advised , on balance I exonerate her of any deliberate misconduct or intention surreptitiously to rely on a memory aid "Article VI provides that seniority "shall be established on a plantwide basis." Seniority applies "in all cases of layoff, recall, transfers, shift preference, filling of new jobs or vacancies, provided the employee is capable of performing the work available " In the case of layoffs the employees having the least plant seniority shall be laid off first providing the remaining employees can perform the work available. Similarly, when decreasing the work force in any classification , the employee with the least plantwide seniority in the classification shall be displaced . The displaced employee will be laid off in accordance with the layoff procedure or shall be entitled to displace the employee with the least plantwide seniority in the classification of his choice if he can perform the work available 325 union official against the second-ranking member of management in the plant. Steffen's testimony is uncontradicted, and I have no basis on which to discredit it, that Works Manager Buda and he, several days before May 14, concluded that a day shift solderer should be moved to the night shift. Why Steffen delayed implementing this decision for a number of days is not explained, other than by the rather lame excuse that he was lax. Nor does the manner in which he announced the transfer of Mrs. Gay, moments after she had presented him with two very unwelcome grievances, have the hallmarks of routine managerial action. Although Steffen testified that he had earlier made inquiry of Foreman Mullins who was the junior employee in the soldering classification on the day shift, it does not appear that the matter had been discussed with Union President White (except an inquiry by Steffen of White as to the correct procedure) or the bargaining committee and little, if any, thought appears to have been given to Mrs. Gay's personal convenience involved in any rearrangement of her work schedule from days to nights or the possibility of someone volunterring for the night shift. I think it fair to conclude, as I do, that Steffen acted more out of pique than in a deliberate and impersonal fashion. This is not to say that he was necessarily motivated by discriminatory considerations. However, when we examine and weigh all the circumstances, his action seems to be closely and inseparably related to Mrs. Gay's insistent presentation of the two grievances. That her action in so doing was protected activity, is too plain to require citation of authority. But it further seems plain that the hasty nature of Steffen's action is further indicated by the fact that he failed to inform Mrs. Gay on what day the transfer was to be effective, in view of his knowledge of her transportation and other problems. Considering all the circumstances, I come to the conclusion that Steffen announced the transfer to Mrs. Gay, when he did, for the reason that she had annoyed him by presenting two grievances which he thought were totally lacking in merit, thus putting him to the trouble of formally answering them. I thus believe that this action on the part of Steffen was prompted by her protected activity and, therefore, was violative of Section 8(a)(3) and (1) of the Act. Concerning the Parker and McClure grievances, considerable record time was spent in examining into their merits under the applicable contract provisions. It seems unnecessary for the purposes of determining the issues here involved to indulge in a discussion of that subject, since it is perfectly plain that whether or not they had merit Mrs. Gay was engaged in a protected activity as a union steward in discussing these grievances with management and in preparing and presenting them. Parenthetically, I think it fair to observe that Mrs. Gay probably had an erroneous notion regarding the operation of the overtime agreement attached to the contract and, in consequence, the disposition of these grievances made at the fourth step meeting on June 12 appears to be entirely correct. There can be no doubt that Mrs. Gay was the junior solderer in the soldering department. Moreover, while other employees working under the jurisdiction of Foreman Mullins may have had less seniority than Mrs. Gay, I think it is correct to observe, in agreement with the Respondent, that these junior employees had classifications different from soldering. Therefore, according to the literal provisions of the contract, inasmuch as no layoff was involved Mrs. Gay did not enjoy bumping rights. However, the Respondent's director 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of industrial relations, Mr Hoekenga, testified that while classifications go by job responsibility and not by level of pay, when there is an equalization in the work force as was involved in Mrs Gay's case, employees do in fact enjoy bumping rights Thus he testified that in Mrs Gay's case, "due to the fact that it was a second shift job that she would have had to go to, then we allow them to stay on the first shift if they have qualifications to bump on other jobs They can stay on the first shift if they want to " Concerning Section 8 of Article VI, governing seniority, which provides that when "decreasing work force in any classification, the employee with the least plantwide seniority in the classification shall be displaced" and the "employee displaced will be laid off or shall displace the employee with the least plantwide seniority in the classification of his choice if he can perform the work available " Hoekenga testified that this pertained to or was intended to cover situations involving job elimination, not work equalization. Since no job elimination was involved in connection with Mrs Gay's proposed transfer, it appears that Hoekenga was not mistaken in testifying that during the June 12 conference Mrs Gay's bumping rights were discussed and it was concluded that "she could bump other jobs on the first shift or take open jobs as they occurred or go to the second shift " In short, employees working on the first shift could, in conjunction with a work equalization transfer, exercise seniority rights in connection with other job classifications on the first shift, contrary to Steffen's reading and announced application of the contract which necessitated Mrs Gay, as the junior solderer in the department regardless of shift, to move to the second shift as a solderer or take a job opening in another classification on the first shift, namely, the FX assembler job An examination of the seniority roster for the week ending May 12 shows that Mrs Gay was the most junior solderer on the day shift At that time there were 10 solderers on the day shift and 3 on the night shift However, Mrs Gay had seniority over three employees (Jesse Smith, Gladys Cates and Lorene McClure) who worked as leak testers in the soldering department on the day shift, she also enjoyed seniority user Kathy Morgan who worked as an assembler - FX gauge roll-out--on the day shift The seniority roster for the week ending May 19 discloses that there were 10 solderers, including Mrs Gay, on the day shift and 3 on the night shift Mrs Gay again was the most junior solderer in the entire group However, there were the same three employees engaged as leak testers on the day shift with less seniority than she and, in addition, Kathy Morgan was still on the same assembler job and she had less seniority than Mrs Gay The Respondent's records show that Mrs Gay was transferred to assembler on May 21 and that her job as a solderer was posted on May 16 However, the successful bidder on her job, Ballinger, did not actually transfer to the job of solderer on the night shift until May 2718 Steffen explained the reason for this delay by testifying that the job from which Ballinger was transferring needed to be filled before he assumed the job of solderer, he had been the ring and glass assembler, a job generally filled by a male and a vital function in the assembly process. Since I have found that the transfer of Mrs Gay was tainted by discriminatory considerations, and inasmuch as it fairly appears that the jobs thereafter assigned her "As counsel for the General Counsel points out in his brief, the number of solderers on the night shift was at the level of five from May 27 to August It, when it reverted to four involved severe physical discomfort for her, a fact known to management, I think it logically follows that her quitting her job on June 15 must be viewed as a constructive discharge induced by similar discriminatory motives on the part of the Respondent I so find, and accordingly conclude that Mrs Gay's termination of employment was violative of Section 8(a)(3) and (1) of the Act 19 Paragraph 5 of the complaint alleged that Superintendent Steffen violated Section 8(a)(1) of the Act by the following conduct (a) on or about May 14 offering improved benefits to an employee in return for a promise to withdraw a grievance, (b) on or about May 15 stating to an employee that the agreement between the Respondent and the Union did not mean a thing to him, (c) on or about June 10 stating to an employee that the seniority provisions of the contract between the parties need not be observed, and (d) on or about May 2 promising an employee that if the employee withdrew a grievance the employee's job would be changed as requested In addition, the complaint alleged that Works Manager Buda violated Section 8(a)(I) by on or about May 16 threatening an employee with disciplinary action because of that employee's processing of a grievance No evidence was adduced concerning the incident attributed to Buda, and it will therefore be dismissed. There is no evidence that on or about May 2 Superintendent Steffen promised an employee that it a grievance were withdrawn the employee's job would be changed in the manner requested Nor do I find any substance to the remaining three allegations relating to Superintendent Steffen, although there is some testimony pertaining thereto It will be recalled that Mrs Gay alleged in her grievance and also testified that when she was discussing the Parker and McClure grievances with Steffen he told her that she should forget about the grievances and about the Union and, if she did so, she and he would get along fine Mrs Gay construed this as a "bribe " I find nothing of that nature in Steffen's remark I think the most that can be made of it is that Steffen, being of the definite view that the Parker and McClure grievances were lacking in merit, attempted to prevail upon Mrs Gay as steward to refrain from writing up the grievances and causing them to be processed, and, in pursuit of that endeavor, may have made some remark to the effect that she should forget about them and the literal language of the contract As to the remaining allegation, that he stated the contract between the Respondent and the Union meant nothing to him, on its face this seems but an expression of opinion I think it fairly appears from Mrs Gay's testimony that a remark substantially to that effect was made by Steffen when they were discussing the grievances but, contrary to Mrs Gay, the purport of it was to convey that in the particular situation the contract had no application Upon the entire record, I find that in the respects alleged in the complaint the Respondent has not independently violated Section 8(a)(1) of the Act Accordingly, it will be recommended that the complaint be dismissed in these respects "This is by no means an open and shut case The able brief of Respondent's counsel has given me considerable pause in arriving at my conclusions After careful consideration I am, however , persuaded that counsel for the General Counsel has sustained his burden of proof both as to the transfer and the constructive discharge of Mrs Gay DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that the Respondent cease and desist therefrom and take appropriate affirmative action in order to effectuate the policies of the Act. Since I have found that the Respondent discriminatorily transferred and constructively discharged Beulah M. Gay, I shall recommend that the Respondent offer her immediate and full reinstatement to her former or substantially equivalent position , without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered from the date of the discriminatory discharge to the date of the Respondent's offer of reinstatement. The backpay shall be computed in accordance with the formula approved in F W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum , as provided in Isis 327 Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that the Respondent preserve and upon request , make available to the Board, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the, Respondent are of a character striking at the root of employee rights safeguarded by the Act , I shall recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Dresser Industrial Valve & Instrument Division, Dresser Industries Incorporated , is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 399, International Union , Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by transferring Beulah M. Gay on May 21, 1968, and by constructively discharging her on June 15, 1968. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5 In other respects alleged in the complaint, the Respondent has not engaged in unfair labor practices. [Recommended Order omitted from publication.]