Machinists Local 68

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aerospace Workers, San Francisco Lodge No. 68, AFL-CIO (West Winds, Inc.) and Kaj Kling. Case 20- CB-2629 July 31, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 20, 1972, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited cross-exceptions and resubmitted its brief to the Administrative Law Judge. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent in contravention of the collective-bargaining agreement and for arbitrary, irrelevant, invidious, or unfair reasons demanded that West Winds' employee Kaj Kling, who is also a member of Respondent, re- turn to work from an Employer-granted 5-month leave of absence as a new employee, and thereby vio- lated Section 8(b)(1)(A) and (2) of the Act. For rea- sons hereinafter set forth, we disagree. The essential facts found by the Administrative Law Judge are not in dispute and can be summarized as follows: Respondent is the exclusive collective-bargaining representative of all machinists employed by West Winds, Inc., herein the Employer. At all times materi- al herein, Respondent and the Employer have been parties to a collective-bargaining agreement, the latest of which is effective from July 7, 1971, to June 30, 1974.' In June 1971, Kling, without previously con- sulting the Union, asked the Employer for a 2-month leave of absence to extend his vacation period so that he could go to Alaska to investigate the possibility of buying a partnership in the salmon fishing business. The Employer's vice president, Rybensky, granted The contract provides in relevant part "[an] employee shall lose his seniority rights for any of the following reasons voluntary termination, discharge for cause , failure to report from layoff within three working days " The contract contains no provision with regard to leaves of absence Khng's oral request but asked him to put it in writing which was done prior to Kling's departure on June 5. Shortly thereafter, Respondent's shop steward, Da- mon, stated to Rybensky that he objected to Kling's return to the job with full seniority. Rybensky dis- agreed with Damon and said that the Company ex- pected Kling to come back with his full seniority.' On or about July 20, Kling returned from Alaska and called the Employer for an extension of his leave of absence until August 15. The Employer granted his request but asked him to put his request in writing, which he did. Again, Damon questioned the Employer's authority to grant an extension of Kling's leave of absence, and the Employer again notified Respondent's financial secretary, Ferguson, about the extension.' On August 14, Kling's wife called the Em- ployer to request a second extension, which was grant- ed provided Kling submit the request in writing and be available if needed. Kling supplied a written re- quest and on September 7 the Employer separately notified Kling and the Union confirming the exten- sion to October 25. In mid-October Damon had a conversation with Respondent's business representative , Barnes, in which Damon told him that the men in the unit did not approve of Kling's leave of absence, and that he, Damon, did not believe it was right for Kling to re- ceive a leave of absence to go fishing or to buy into a fishing fleet. Thereafter Barnes and Damon met with Rybensky, and Barnes stated that Kling would have to come back to West Winds as a new employee since he had voluntarily quit his job. Rybensky dis- agreed arguing that the contract was silent on leaves of absence. In an October 22 letter to the Employer, Barnes modified his objection to Kling's return from the leave of absence with his full seniority, contending that although the original grant of the leave of ab- sence may have been proper the two extensions of the original leave of absence were improperly granted. On October 24, Kling called the Employer about returning to work the next day. Rybensky told Kling about Respondent's position and told him that he should go back to the union hall and find out "how he stood down there before he came back here and had difficulties down there." The next day Kling met with Barnes who said he would check into the matter. On October 28, Barnes notified the Employer, who in turn notified Kling, that it was all right for Kling to return to work with his full seniority. However, later in the day, Barnes called Kling at home and told him that his decision had been reversed by Respondent's 2 On June 7, the Employer, in a departure from its past practice , notified the Union that a leave of absence had been granted to Kling 3 Although Ferguson said that the Employer's extension of the leave of absence was a bad idea , he did not attempt to forbid it or state that union approval was required 205 NLRB No. 26 MACHINISTS LOCAL 68 133 business representative, Jensen. Thereafter, Respon- dent continued to maintain its position that Kling would have to return to work without his accumulated seniority, and Kling chose not to return to work as a rehire without seniority. On June 23, 1972, the Union sent a letter to the Employer stating that effective June 26 Kling could return to work with his full sen- iority. From the foregoing facts, the Aministrative Law Judge found that by informing Kling that his return to work with full seniority was subject to the Union's approval, the Employer acceded to the Union's de- mand that Kling could only return as a new hire with- out seniority. He concluded that this action constituted a constructive discharge caused by the Union in violation of Section 8(b)(2) and 8(b)(1)(A). Respondent contends that its action was not arbitrary and that there is no evidence of animosity, threats, or coercion. We agree with Respondent's contention. Initially, we note that Respondent's position to- ward Kling's leave of absence and the two extensions thereof is not inherently unreasonable, since a union has a legitimate concern in protecting the relative sen- iority and job security of unit employees who remain on the job during a fellow employees' protracted leave of absence. In collective bargaining, unions frequent- ly demand joint consultation and/or agreement be- tween the company and the union on an initial grant of personal leaves of absence and on any extension thereof.4 The reason a union seeks to limit leaves of absence is that any employee on leave retains an abso- lute right to return to his old job and also often accu- mulates, during the leave, seniority and other job rights. When he returns to the unit, usually to his own job, he bumps out the employee who has been tempo- rarily assigned to his job during his leave; also, he has been accumulating seniority and thus acquiring supe- rior rights to other employees who may have been hired during his leave and been actively at work while he was out on personal business. Thus, a too liberal policy of granting or extending leaves of absence for personal reasons infringes to a degree on the job rights of other working unit employees in terms of their relative seniority and job security. In this case the contract is silent as to the granting of leaves of absence, thus leaving for ad hoc resolution any disputes with respect to such leaves. When the Employer continued to extend Kling's leave of ab- sence without prior consultation with the Union, the Union, not unreasonably, protested the decision since the Employer, by unilaterally continuing to extend such leaves, was, at least arguably, adversely affecting the conditions of employment of the unit employees who had remained at work. By the time Kling re- turned to his job he had been gone for 5 months. He had never personally notified the Union as to his whereabouts or as to his intentions to return to his job. In these circumstances the Union's noncoercive exhi- bition of concern over the Employer's unilateral ex- tensions of Kling's leave of absence was not an arbitrary or frivolous position for it to takes In the absence of evidence of improper motivation, there- fore, we can only conclude that Respondent was act- ing out of a legitimate concern for the other unit employees and that its action in taking its position was not arbitrary, irrelevant, or invidious. Therefore, as we find that the Respondent's demand that Kling return to work as a new hire at the bottom of the seniority list was motivated by legitimate consider- ations, we conclude that Respondent has not violated Section 8(b)(1)(A) and (2) of the Act. Accordingly, 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 Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 4 In fact some of Respondent 's other waterfront agreements require prior notice to the Union 5 In that regard, we note that the Union did not threaten or take any coercive action towards enforcing its asserted position DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed by Kai Kling on March 14, 1972, the com- plaint herein was issued on June 27, 1972. The complaint alleges that International Association of Machinists and Aerospace Workers, San Francisco Lodge No. 68, AFL- CIO, hereinafter referred to as the Union or Respondent, violated Section 8(b)(2) and (1)(A) of the Act. Respondent, by its answer,' denies that it committed the unfair labor practice alleged in said complaint. Pursuant to notice a hearing was held in San Francisco, California, on September 26, 1972, before me duly designat- ed as Administrative Law Judge. Appearances were entered on behalf of the General Counsel and Respondent, and briefs were received from said parties on November 8, 1972. Upon the entire record in this case and from my observa- tion of the witnesses as they testified, I find the following: 1 Respondent was permitted to amend its answer to allege as an affirmative defense that Kling "had not exhausted his internal remedies " It appears from the record that the remedies referred to were those provided under the grievance procedure set forth in the collective-bargaining agreement. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER INVOLVED left on his leave of absence in early June, he was serving as a leadman and held top seniority at West Winds, except for the job steward. Shortly before he was granted his leave of absence, he informed his superiors, Robert Rybensky, vice president and operation manager of West Winds, and Jo- seph Brewster, president and general manager of said Com- pany, that he wanted to go to Alaska for approximately 2 months to investigate the possibility of buying a partnership in the salmon fishing business and, since he had only 3 weeks vacation due him, he was told that he could have a leave of absence for that period. He was asked by Brewster to put his request in writing which he did, and his last day of work before he left on his leave was June 5. On June 7, Rybensky notified the Union by letter ad- dressed to William Ferguson, financial secretary of the Re- spondent, that a leave of absence had been granted to Kling. Shortly after Kling went on leave, the shop steward, George Damon, stated to Rybensky that he objected to Kling's return to the job with seniority. It is not clear whether his objection prompted the notification to the Union on June 7. It further appears that at the time Damon voiced his objection to Kling's returning with seniority from leave, Rybensky told him that he disagreed with him and that the Company expected Kling to come back to his job with full seniority. Kling returned from Alaska on about July 20 or 22 and called West Winds to obtain an extension of his leave of absence until August 15 which request was granted. He was, however, told to put his request in writing. It appears that, at about this time, Damon again questioned the Company's authority to grant an extension of Kling's leave and Brew- ster asked Damon to show him where the agreement provid- ed that he did not have the right to grant leave, which Damon was unable to do. It is noted at this point that there is no provision in the agreement with respect to the matter of the Employer's authority to grant leave or the Union's authority to approve or disapprove it, but rather the agree- ment is devoid of any reference to leaves of absence. On August 14, Kling's wife called West Winds to request a second extension of Kling's leave which request was grant- ed with the provision that he be available if needed. It was required, however, that he put the request in writing which he did by letter dated August 16. A second letter to West Winds requesting the extension of leave was sent on August 20 at the suggestion of West Winds. After the letter of August 16 was received, Rybensky notified Ferguson by telephone of the second extension and Ferguson requested that he send the Union a letter with respect to granting Kling the second extension which Rybensky did by letter dated September 7. Also on September 7, Rybensky sent Kling a letter approving his extension until October 25. Except for the objections of Damon, the job steward, the Respondent made no objection to the leave and extensions granted Kling until the middle of October. In the middle of October, Joseph Barnes, business representative of Respon- dent, had a conversation with Damon in which Damon told him that the men did not approve of Kling's leave of ab- sence, that he did not believe it was right for Kling to receive a leave of absence "to go fishing or to buy into a fishing fleet." Barnes then met with Brewster, Rybensky, and Da- mon and at the meeting he stated that Kling would have to West Winds, Inc., a California corporation with a place of business in San Francisco, California, has at all times material herein been engaged in the business of repairing marine and industrial products. During the year preceding the issuance of the complaint, it, in the course and conduct of its business operations, provided services in excess of $50,000 directly to customers located outside the State of California. As is admitted by Respondent, West Winds is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, it is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICE The following allegations have been admitted by the Re- spondent and it is found as follows: At all times material herein, Respondent has been the exclusive representative, for the purposes of collec- tive bargaining, of all inside and outside machinists, machinists helpers, and apprentices, including machin- ist leadmen, employed at West's San Francisco facility; but excluding all other employees, guards, watchmen, professional employees, office and clerical employees, quartermen, assistant foremen, ship superintendents, and all other supervisors as defined in the Act. At all times material herein, Respondent and West have been parties to a collective bargaining agreement, the latest of which is effective by its terms from July 7, 1971 through June 30, 1974, covering all employees in the unit described above. The unfair labor practice alleged in the complaint is that Respondent "for arbitrary, irrelevant, invidious or unfair reasons, has failed, and is failing, in its duty of fair represen- tation of employees" in the above-described unit, of which Kling is a member, "by demanding that Kling be denied his seniority rights in contravention of the collective bargaining agreement" applicable to the aforesaid bargaining unit. Respondent's conduct with regard to his seniority rights arose as a result of his having been granted a leave and two extensions thereof by his employer, West Winds. There is no dispute as to the material facts in this proceed- ing and the findings hereinbelow are based upon uncon- tradicted and credited testimony as well as the exhibits received in evidence. Kling was employed by West Winds as a machinists from February 1961 until about October 25, 1971, at which time he was to report back to work from leave. At the time Kling MACHINISTS LOCAL 68 return to West Winds as a "new employee" on the basis that "he had to be considered a voluntary quit." Rybensky re- plied that it was the Company's position that Kling could return with full seniority. By letter dated October 22, Barnes wrote to West Winds as follows: I am writing this to inform you of the IAM & AW Lodge 68's position in the matter of re-hiring of Brother Kaj Kling. We find that on June 7, 1971 you sent a letter, ad- dressed to William Ferguson, stating that Brother Kaj Kling had been granted a leave of four to six weeks. We believe that up to this point, this was proper. However, we find that after Brother Kai Kling had completed his business, he asked for an extension of this leave of absence to complete another project, which had nothing to do with the first instance. Also, no notice of such an extension was sent to or approved by Lodge 68, IAM & A W, as provided in the Agreement covering leaves of absence.2 Therefore, Brother Kaj Kling overstayed his original leave of absence 3 and if re-hired, must go to the bottom of the seniority list. [Emphasis supplied.] On about October 24, Kling called Rybensky to de- termine whether he was to return to work on October 25 since he thought that October 25 was a holiday. Rybensky informed him that the 25th was not a holiday at West Winds, but that he had received a letter from the Union objecting to Kling's return to work with full seniority (the above-quoted letter of October 22). This was the first notifi- cation received by Kling that the Union objected to either his original leave of absence or the two extensions thereof. Rybensky told Kling "that he should go to the union hall and find out how he stood down there before he came back here and had difficulties down there." Either in his conver- sation with Kling on October 24 or on the following day, October 25, Rybensky told Kling "to come back [to work at West Winds] once he's cleared with the union hall, that whatever they said would be right, or subject to their approval. " [Emphasis supplied.] On October 25, Kling went to the union hall to see if he could get the matter of his seniority straightened out and had a conversation with Barnes, who told him that he would check into the matter. On October 28, Kling received a call from West Winds informing him that it had been notified by Barnes that Kling could return to work with full seniority rights. Later in the day, however, Kling received a call from Barnes, who told him that he could not go back to work with 2 As noted hereinabove, there is no such provision 3 This appears to be the first time the issue that Kling overstayed his original leave was raised by the Respondent and it appears that the claim that Kling overstayed his original leave is predicated on lack of notice to, or approval by, the Union of the extension of his original leave. As set forth hereinbelow, the Union later claimed he overstayed his original leave because he did not request an extension before his original leave expired. 135 full seniority rights, that his earlier decision to permit him to do so had been reversed by Stanley Jensen, the directing business representative of the Union. Within the next few days Kling met with Barnes and Jensen at which meetings he was unable to persuade the Union to reverse its position that he could not return to work with full seniority. On November 1, West Winds replied to the above-men- tioned letter it received from Barnes (dated October 22) in which West Winds informed the Union that it "expects Mr. K. Kling's return with full seniority rights." By letter (signed by Barnes) dated November 2, the Union replied to West Winds' letter as follows: Brother Kling was in our office this morning meeting with Stanley Jensen and myself. We are in agreement on the original leave of absence, which was granted from June 1, covering from four to six weeks, which would have expired approximately around July 15th. The period from July 15th to August 20th is the period we are in disagreement. We feel that Brother Kling should have reported back to work at the end of the six week period and since he failed to do so, he jeopardized his seniority stand [sic] by failing to request an extension of his original leave of absence before it expired 4 It appears that Kling refused to return to work as a "re- hire" without his previous seniority and it was not until June 23, 1972, that the Union sent a letter to West Winds stating that, effective on June 26, 1972, Kling could return to work with his full seniority rights. Kling testified, without contra- diction, and his testimony is credited, that because of the work assignment practice at West Winds his loss of seniority would have made a difference in his earnings of from $6,000 to $10,000 a year. Obviously the loss of seniority would have also affected Kling's job security under the contract with respect to layoffs. There is no evidence of any area practice of control by the Union over leaves of absence which would have been applicable to West Winds and its employees. As stated here- inabove, the contract between the Union and West Winds was completely silent on the subject matter of leaves. Fur- ther, the record discloses that it had not been the practice for West Winds to consult with the Union about the grant- ing of leaves and it appears that Kling's situation is the only one in which the Union has taken the position that it has the authority to approve or disapprove leaves granted to employees covered by the Water Front Agreement (includ- ing West Winds' employees). It further appears that Kling did not know, nor could he reasonably have known, that the Union had any authority over granting leave or that there was any requirement it be notified of his taking a leave. It also appears that West Winds did not believe, nor did it The record will not support a finding that Kling failed to request an extension before his original leave expired Kling's testimony is credited that he was granted leave for 2 months. It appears that the "six week period" referred to the length of the fishing season mentioned in his letter requesting leave and not to the period of his leave It appears that West Winds did not consider that he had overstayed his leave. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have any reasonable grounds for believing, it was required to obtain the Union's approval of leaves it granted or exten- sions thereof. It is found that by informing Kling that his return to work with full seniority was subject to the Union's approval West Winds acceded to the Union's insistence that he could only return to work as a "new hire" without seniority. In view of the circumstances, this, in my opinion, constituted a con- structive discharge (or a discharge with only a conditional offer of reinstatement) which was caused by the Union in violation of Section 8(b)(2) and (1)(A) of the Act. Miranda Fuel Company, Inc., 140 NLRB 181.5 With respect to the affirmative defense raised by Respon- dent, it is, as construed from statements made by Respondent's representative and its brief, that the Board should defer to the grievance procedure provided in the collective-bargaining agreement between West Winds and itself. In its brief, Respondent refers to the "Collyer doc- trine" 6 as the basis of its said defense. Said doctrine has been applied primarily to Section 8(a)(5) violations and in some limited cases to discriminations under Section 8(a)(3) of the Act. However, said doctrine is not applied in cases such as the instant case where the position and interests of the Union are diametrically opposed to those of the discri- 5In the cited case (in which the facts are very similar to the facts in the instant proceeding) the repondent union therein sought to reduce the seniori- ty of an employee, a member of the bargaining unit represented by the union, for a reason not authorized by the applicable collective-bargaining agree- ment In its Decision the Board stated Moreover, apart from the invalidity under the Act of the Union's exercise of an arbitrary power against an employee to affect his employ- ment status, the Union's actions herein may also, in our opinion, be considered as differing little if at all from a union's enforcement of its own rules Thus, as there was nothing in the contract which compelled a loss of seniority for an early departure, the Union's insistence can be taken, in the circumstances, as nothing more than an arbitrary imposi- tion of an ex post facto rule of its own making, and its alleged breach by [the employee] resulted in a discriminatory reduction of his seniority status not sanctioned by Section 8(a)(3) of the Act [Footnote omitted] Id at 188, 189 Accordingly, because the Union caused Miranda to discriminate against [the employee], and the discrimination had a foreseeable effect of encouraging union membership within the meaning of the Supreme Court's Radio Officers decision, and because such discrimina- tion was in violation of the outstanding contract and was otherwise arbitrary and without legitimate purpose, we find that the Union thereby violated Section 8(b)(l)(A) and (2) of the Act and that Miranda thereby violated Section 8(a)(I) and (3) [Footnote omitted ] Id at 190 Inasmuch as West Winds was not made a Respondent herein there is no finding against it that it violated Section 8 (a)(3) and (1) of the Act 6 Collyer Insulated Wire, 192 NLRB 837 minatee. Kansas Meat Packers, 198 NLRB No. 2. Thus, there is no merit to the affirmative defense raised by Re- spondent. If the Board were to defer to the grievance proce- dure under the contract, the Union could not be expected to fairly represent Kling To do so it would be required to maintain a position that its conduct with respect to Kling was not justified, and West Winds, as Kling's employer, would be under no obligation to represent Kling in the grievance procedure. IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice of Respondent set forth in sec- tion III, above, occurring in connection with the operations of the employer, described in section I, above, has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several states, and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY It having been found that the Respondent has engaged in an unfair labor practice, it will be recommended that Re- spondent be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. It having been found that Respondent caused West Winds to constructively discharge Kai Kling, it will be rec- ommended that Respondent be ordered to make him whole for any loss of pay he may have suffered as a result of his aforesaid discharge in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, 291-293, together with 6 percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716.7 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. West Winds, Inc., is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(b)(2) and (1)(A) of the Act by causing the constructive discharge of Kai Kling on October 25, 1971 [Recommended Order omitted from publication.] 7 There is no provision recommended that Respondent be ordered to in- form West Winds that it can restore Kling to his former job with his former seniority, since, as noted hereinabove, the Respondent has already done so by letter dated June 23, 1972