Rubber Workers, Local 374

RUBBER WORKERS, LOCAL 374 United Rubber, Cork, Linoleum & Plastic Workers of America, Local 374 (Uniroyal, Inc.) and Donald Smith. Case 13-CB-4370 July 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 2, 1973, Administrative Law Judge Well- ington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 rulings, findings, and conclusions' of the Administrative Law Judge, as ex- panded herein, and to adopt his recommended Order. As described more completely in the Administra- tive Law Judge's Decision, the dispute herein arose out of the filing, processing, and settling of a griev- ance by Respondent on behalf of production employ- ee Stanley Rudnick. Through the grievance, Respondent sought to permit Rudnick to "bump" into the skilled trades division and dislodge the least senior employee therein, maintenance employee Don- ald Smith, from his job. It is admitted that no produc- tion employee has ever before bumped into the skilled trades division. Respondent sought contractual support for its grievance in article VII, section 11, of the collective- bargaining agreement-the skilled trades division (or shop) classification seniority provision. However, since this provision, by its terms, did not deal either directly or indirectly with the right of production em- ployees to bump into the skilled trades division, the grievance was ultimately settled through a "clarifica- tion" of article VII, section 11. Under the terms of the clarification, once an employee had acquired classifi- cation seniority by working in the skilled trades divi- sion, that seniority could never be lost and was retained by the employee even after transfer to a new 1 It is unnecessary to review the Administra tive Law Judge's analysis of the doctrine of "prior rights" as established in Respondent's collective-bargain- ing agreement with Uniroyal , Inc. In their briefs to the Board, both Respon- dent and the General Counsel acknowledge that the doctrine is not applicable on the facts of this case 117 classification or department. Since Rudnick had ac- quired approximately 14 years' mechanic classifica- tion seniority prior to taking a foreman's job in the production department in 1969, he was thereby per- mitted to retain this seniority and bump Smith who, at the time, had only acquired 10 years' mechanic classification seniority. When Smith subsequently filed a grievance claim- ing that Rudnick's bump into the skilled trades divi- sion violated the terms of the collective-bargaining agreement, the Company, relying on the above-de- scribed clarification of the shop seniority clause, de- nied the grievance on the ground that "[alt the time of the bump, S. Rudnick had not less than thirteen or more than seventeen years of mechanic classification seniority and D. Smith had less than ten years of me- chanic classification seniority." (Emphasis supplied.) Respondent chose not to appeal the Company's dis- position of the grievance and Smith thereafter filed the original unfair labor practice charges herein. In view of the above, it is readily apparent that both grievances were disposed of on the basis of the "clari- fication" which Respondent and the Company reached with regard to article VII, section 11, of their contract. Indeed, Respondent's current president tes- tified that but for the clarification, Rudnick would not have been permitted to bump into the skilled trades division. The Administrative Law Judge found, and we agree, that Respondent's reliance on the clarification of article VII, section 11, as justification for its con- duct is unwarranted. In permitting skilled trades divi- sion employees to perpetually retain their classification seniority even after their transfer to other departments, the clarification is contrary to the requirements of article VI, section 7A, of the contract which stipulates that only during the first month fol- lowing a transfer will an employee's seniority be maintained in his old department. We further find, and Respondent now apparently agrees, that article VII, section 11, quite apart from the validity of the clarification, does not apply to production employee Rudnick at all. As Respondent states in its brief to the Board, "Article VII, Section 11, Shop Seniority applies only to people who are presently engaged or working in the Skilled Trades or Maintenance Department and outlines the proce- dures which they shall take in the event that they are going to change jobs by bid, bumping, hiring, layoffs and recalls." Since at the time of his attempted trans- fer Rudnick was neither "presently engaged nor work- ing" in the skilled trades division, article VII, section 11, simply does not apply to him. At the hearing, Respondent for the first time argued that Rudnick was permitted to bump Smith pursuant 205 NLRB No. 28 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to that portion of article VI, section 9B, of the collec- tive-bargaining agreement-the plant seniority provi- sion-which permits production employees to bump "only the least senior employee in the plant." 2 Re- spondent contends that since Smith was admittedly the least senior employee in the plant, and since the above-quoted bumping privilege for production em- ployees is not limited by excluding skilled trades em- ployees from its scope, Rudnick had a right to Smith's job even though it meant permitting a production employee to bump into the skilled trades division. It is unnecessary for us to determine the merit of Respondent's argument. Even assuming that the con- tract theory now advanced is meritorious,' it is not the theory which was actually utilized by Respondent and the Company in disposing of the grievances and therefore cannot possibly be the real reason behind Respondent's efforts to have Smith bumped by Rud- nick. We agree, instead, with the Administrative Law Judge that the real reason behind Respondent's con- duct lies in the expressed desire of certain of its offi- cials-President Richard Lewis and Shop Steward Tom Rosier in particular-to "get" Smith for actions which he had taken while serving a 2-year term as Respondent's president. While in office, Smith ex- pelled Lewis from attendance at union meetings for a period of 3 months following Lewis' disruption of a prior meeting, and on another occasion Smith bumped Rosier from his job pursuant to the supersen- iority which Smith acquired by virtue of his position as union president. Such actions, all of which consti- tuted protected union activities, engendered in Lewis and Rosier a feeling of hostility towards Smith which found expression in numerous statements to other employees, the essence of which was that Smith would have to go. In view of the open hostility against Smith harbored by certain union officials, the admitted absence of any past occasions in which production employees have been permitted to bump into the skilled trades divi- sion, and the lack of a reasonable contractual basis for the grievance, we find that Respondent's filing and processing of Rudnick's grievance was motivated by a desire to "get" Smith for engaging in protected 2 While it is true that the Company's answer to Smith 's grievance, ac- quiesced in by Respondent, mentioned that both art Vii, sec I I (skilled trades seniority), and art VI, sec 9, B (plant seniority ), provided for bumping the least senior employee in the plant, it is clear from the portion of the Company's answer quoted above that the denial of Smith 's grievance was predicated exclusively upon his lack of sufficient mechanic classification seniority under the skilled trades seniority provision 3 While we specifically refrain from reaching this issue , it is nevertheless to be noted that in over 20 years no production employee has ever bumped into the skilled trades division, nor is there any evidence to indicate that the plant seniority provision now relied upon by Respondent has ever been interpreted so as to permit such transfers in appropriate circumstances union activities and accordingly violated Section 8(b)(1)(A) of the Act. In addition, Respondent's set- tlement of Rudnick's grievance on a basis which re- quired the Company to discriminate against Smith violated Section 8(b)(2) of the Act. Cf. United Steel- workers of America (Miami Copper Co.), 190 NLRB 43. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, United Rubber, Cork, Lino- leum & Plastic Workers of America, Local 374, Chica- go, Illinois, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. CHAIRMAN MILLER, dissenting: And now what? The majority has set aside a grievance settlement, pursuant to which Rudnick, an admittedly more sen- ior employee than Smith, was permitted to bump Smith, the least senior man in the plant. Now what of union member Rudick's rights? Shall he now file a grievance, complaining that his contract rights have been adversely affected? And if the Union fails to process his grievance to arbitration, what if he now files a grievance alleging a lack of fair representation, because his Union is now refusing to assert on his behalf an interpretation of the agreement to which the Company has acquiesced? And in broader perspective-does the least senior man in the plant acquire, by our fiat, some kind of superseniority if he has engaged in internal political battles and thus incurred some degree of ill will by the union leaders he has opposed? Must the Union under those circumstances carry any grievance filed by him to arbitration, even though to do so would be to assert a position contrary to the terms of a settlement en- tered into on behalf of a senior employee who, pre- sumably, was also entitled to fair representation? The majority has entered treacherous waters. Seniority disputes of the type present here are not easy for unions to resolve. Had the union leadership refused vigorously to prosecute the grievance filed by Rudnick, a long-time employee and, presumably, a long-time union member, and taken the position that he had no right to bump the least senior employee in the plant, he might well have been the charging party here, alleging that the Union was showing favoritism to a former union president. Union leaders have no easy task in reconciling con- flicting claims within their own ranks in these com- RUBBER WORKERS, LOCAL 374 plex seniority disputes. In my view, we should go very slowly in sustaining charges in these cases. And de- spite some evidence of hostility toward the Charging Party, I believe the Union and the Company were on the horns of a dilemma when Rudnick filed his griev- ance. I cannot say that the manner of resolving it was so arbitrary, invidious, and unfair that Section 8(b)(1) was violated. I therefore dissent. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on January 5, 1973, at Chicago, Illinois, and is based on a charge filed on June 5, 1972, by Donald Smith, an individual, upon the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against United Rubber, Cork, Linoleum & Plastic Workers of America, Local 374, hereinafter referred to as the Respondent or the Union, alleging violations of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by Respondent denying the commission of any unfair labor practices. All parties were represented by counsel and were afford- ed full opportunity. to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Timely briefs were filed by counsel for General Counsel and for Respondent. Upon the entire record in this case, and from my observa- tions of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testi- mony" (Universal Camera Corp. v. N.L.R.B., 304 U.S. 474, 496 (1951) ), I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Uniroyal, Inc., a New Jersey corporation, licensed to do business in Illinois, is engaged in the manufacture of auto- mobile tires and other rubber goods . It operates plants or facilities in a number of States, one of which is located in Chicago, Illinois, the only facility involved in this proceed- ing. During the calendar year immediately preceding the issuance of complaint , the Company purchased goods hav- ing a value in excess of $50 ,000 and caused said goods to be shipped from sources located outside the State of Illinois directly to its facility in Chicago , Illinois. The parties admit, and I find, that Uniroyal , Inc., is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 11 THE RESPONDENT LABOR ORGANIZATION The parties admit, and I find, that United Rubber, Cork, Linoleum & Plastic Workers of America, Local 374, is a 119 labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Whether, in filing and processing a grievance on behalf of employee Stanley Rudnik, who was about to be laid off, by which Rudnik was granted greater seniority resulting in the bumping and layoff of the Charging Party, Donald Smith, the Respondent did so because of its hostility toward Smith in violation of Section 8(b)(2) and (1)(A) of the Act. B. The Facts Donald Smith, the alleged discriminatee in this proceed- ing, was hired in November 1962, by the employer involved herein, Uniroyal, Inc., as a maintenance employee in its skilled trades division, commonly referred to as the "shop." I Smith was continuously employed in this capacity from 1962 until the first of June 1972, when he was laid off as the result of a bump by another employee, Stanley Rud- nik, who had greater plant seniority than Smith? During this period, Smith was active as a union leader, serving as departmental steward in 1964 and 1965, as secretary in 1968 and 1969 and, upon election in November 1969, as president during 1970 and 1971. In November 1971, he was defeated by Richard Lewis, the current president. While carrying out his functions as president during his 2-year term, certain actions by Smith gave rise to strong feelings against him by those who came to succeed him in the union official hierarchy. In August 1970, Lewis filed an unfair labor practice charge with the Board, naming Smith as the union official to contact, asserting that the union officers had refused to process his grievance relative to over- time for arbitrary, discriminatory, and invidious reasons. In May 1971, another unfair labor practice charge was filed by Lewis, again naming Smith as the union official to contact, alleging the failure of the union officers to process a griev- ance by Lewis. Both charges were subsequently dismissed by the Board. In July 1971, while Smith was presiding over a union meeting, Lewis became unruly and repeatedly refused to abide by Smith's ruling that he was out of order. When Smith attempted to expel Lewis from the meeting, Lewis refused to leave, resulting in a heated argument between the two. Pursuant to his authority under the Union's Constitu- tion, Smith, by letter of July 19, 1971, suspended Lewis from attending all union meetings for a period of 3 months. Lew- is, although abiding by the mandate, filed an appeal with the International, which, in turn, upheld Smith's action.3 1 The Company's operations involved two sections, the production area where the bulk of the employee complement is employed, and the skilled trades division or "shop," which houses the plant maintenance employees 2 The real question posed is whether, under the collective-bargaining con- tract, an employee with seniority in the production area could transfer that seniority to the skilled trades division and bump a man employed in skilled trades 3 I credit Smith's testimony, over Lewis' denial, that an appeal was taken on Smith's suspension of Lewis 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In late 1970, during the course of exercising his supersen- iority granted him by the collective-bargaining contract as president of the Union, Smith bumped employee Tom Rosi- er, one of nine he bumped during his 2-year term of office. Rosier, bitter about Smith's action, vowed while on layoff that if he ever got the chance he would even the score. On a number of occasions subsequent to this layoff, Rosier repeated his threat to Smith, a threat well-known to shop employees and management alike. Following a union meet- ing in February 1972, at which time Smith was out as the union head and Rosier held a union position as shop stew- ard under Union President Lewis, Rosier again let Smith know that he had not forgotten the incident, and that, as Smith had allowed the Company to lay him off illegally, "he was going to do everything in his power to force the Compa- ny to get rid of me." That both Rosier and Lewis were known to have made statements against Smith is apparent from the record. Ed- win Knorr, maintenance employee with 22 years with the Company, testified that on a number of occasions in front of a group of employees he heard Rosier say that "he would get Mr. Smith out of his job in any way he could." Manuel Crank, a long-time production employee, testified that on one occasion in February 1972, while sitting with Lewis at a table in the plant cafeteria, as Smith passed by, Lewis said, "that boy's got to go." 4 Another employee with 20 years' service with the Em- ployer, electrician Charles Hudson, testified that on two or three occasions, as late as April 1972, in front of a number of employees, he heard Rosier say that "we must get Don Smith out of the plant, he must go." 5 In May 1972, Grievance No. 186 was filed on behalf of Stanley Rudnik, seeking to allow Rudnik, a production and maintenance employee, to bump Smith, a skilled trades di- vision employee. As against Smith's 10-year tenure, 1962 to 1972, in the latter division, Rudnik was hired by the Compa- ny in September 1955 as a production employee. He re- mained in production until 1966 when he was given a maintenance job in the skilled trades division. Rudnik worked in this division until the latter part of 1969, when he was laid off due to a cutback. After a 2-week layoff, he took a former job in production, and then, almost immediately, claimed the production job as slitter under his "prior rights," a job from which he had been laid off before going in to the maintenance shop. At that time, Rudnik was told by the Company that, under the contract, if he claimed any job under "prior rights," including the slitter's job, he would be giving up all other "prior rights." Thus, with notice, Rudnik at this point gave up any prior rights to his job in the skilled trade division. A month or two later, Rudnik was laid off from the slitter's job and he bumped the low man in the production department and took a jeep job. Subsequently, the slitter's job opened up and Rudnik went back to it, where he worked until April 1972 when the job was discontinued. He then bumped a quality control technician in the same depart- ment. While he was in training for this job, the Union filed Grievance No. 186, alleging that Rudnik should have the right to bump Smith, assertedly the least senior employee in the plant, but who held down a job in the skilled trades division. Grievance No. 186 was taken up at an interim meeting in Miami where company officials met with officers of local unions. Lewis and Jim Estes, Respondent's vice president, were present at this meeting. An agreement was reached, subject to union approval, which, by a special clarification of the contract, permitted a production employee to bump into the skilled trades division. At a May 28, 1972, union meeting, with Smith present, and Lewis presiding, upon a motion by Rosier, it was voted to instruct the vice president to allow Rudnik to bump Smith the following Monday. Smith objected on the ground that the action on the settle- ment of Grievance No. 186 was illegal because the interpre- tation encompassed in the settlement of this grievance violated the contract.6 As a result of this action, Smith was bumped on May 31, 1972, and was laid off. As Smith was putting his tools away on this day, Smith told Rosier that he felt that the action taken on Grievance No. 186 was a violation of the contract and that he wanted a grievance filed on his behalf. Rosier replied that Smith did not have a grievance and that he got what he deserved. Thereafter, on June 18, 1972, Smith filed his own written Grievance No. 194, asserting in effect that the prior action resulting in his being bumped constituted a violation of the terms of the collective-bargaining contract. This grievance was filed at the second step by divisional steward, E. Bagley. The Company, on June 28, 1972, rendered its answer to the grievance, interpreting the contract provisions against the position asserted by Smith. Subsequently, the Company's position on the grievance was accepted by the union com- mittee as being settled, and, with Union President Lewis so noting on the Company's answer by date of July 2, 1972, Smith was advised of the fact that his Grievance No. 194 was settled against him. According to counsel for the Re- spondent, because it appeared that the Company's answer giving rise to the settlement in Smith's grievance was ren- dered pursuant to, and based on the same principle as, the earlier settlement of Rudnik's grievance, the Union decided not to process Smith's grievance further and, accordingly, refused to go to arbitration. Analysis and Conclusions The General Counsel contends that the Union's pro- cessing of Grievance No. 186 was discriminatonly motivat- ed and that it used the grievance as a vehicle to get rid of Smith. In support thereof, the General Counsel, relying on the rationale, but not the result, of United Steel Workers of America (Miami Copper Co.), 190 NLRB 43, argues that the record shows ( 1) animosity of Union President Lewis, and ' Smith testified that four voted in favor, three of them union officials, one 4 Lewis, while admitting that it was possible that he sat at a table with voted against (Smith), and nine abstained. Lewis testified that 13 voted for, Crank, denied making the statement I do not credit his denial. only one voting against Contrary to Smith, Lewis testified that the motion 5 Rosier, although present at the hearing, did not take the witness stand by Rosier involved the acceptance of the settlement In either case, the effect Thus, the testimony of Smith, Knorr, and Hudson, as to these matters, was the same Again, as I was impressed with Smith's candor while testifying, remains unrefuted and is credited more so than that of Lewis, I credit Smith as to this matter. RUBBER WORKERS , LOCAL 374 Union Steward Rosier towards Smith; (2) the complete de- parture from past practice in allowing, and seeking to allow, an employee from the production and maintenance area to bump into the skilled trades division; and (3) the apparent violation of the collective-bargaining agreement in allowing such to take place. The Respondent generally denies that the grievance filed on behalf of Rudnik was in any way perpetrated by the Union or its officers in any manner which would be discriminatorily applied towards Smith. In the Miami Copper case, an employee who had become disenchanted with the union lost his job through the griev- ance procedure to another employee with greater seniority. In reversing the Administrative Law Judge's finding that the union's actions were unlawful, the Board held that the Ad- ministrative Law Judge was not entitled to draw inferences in the absence of evidence of hostility on the part of the union officers, and specifically found that there was no evidence of a deviation from past practice and no evidence of contract violations. I agree with Counsel for the General Counsel that the instant case appears to be the converse of Miami Copper and that the evidence which the Board found lacking therein is here present. First, the record amply demonstrates that both Lewis and Rosier had sought Smith's demise for some period of time, that Lewis had held it against Smith, while president, for not processing his grievances, even to the extent of filing unfair labor practice charges in an attempt to rectify the situation. Smith's 3-month suspension of Lewis from attendance at union meetings and his use of his supersenionty to bump Rosier gave rise to subsequent threats by both union offi- cials to get rid of Smith. That these actions by Smith engen- dered hostility toward him by these union officials as reflected in their threats is apparent. As to the second point, it is not disputed that no employee had ever been allowed to bump from the production and maintenance area into the skilled trades division. Further, Lewis admitted, and it is generally conceded, that, but for the new interpretation placed upon the seniority provisions of the contract in the settlement of Grievance No. 186 filed by the Union on behalf of Rudnik, Rudnik would not have been able to bump Smith. Thus, it is uncontroverted that the resolution of Grievance No. 186 was a complete departure from past practice. Thirdly, with respect to the assertion that the settlement of Grievance No. 186 violated the existing collective-bar- gaining contract,' it appears that under article VI, section 7A, of the contract, within a month after Rudnik was given ajob in maintenance in 1966, his 11 years of seniority accu- mulated while working in production shifted to his new job, crediting him with 1 I years seniority in the skilled trades division. He then worked 3 more years in skilled trades, giving him a total of 14 years' seniority, when, in 1969, he took a voluntary layoff, which he was entitled to do under the "Shop" seniority provisions of article VII, section 11, 3, of the contract. 7 The main problem here concerning contract interpretation arises from the fact that there are two separate seniority provisions in the collective- bargaining agreement, one for the production area employees, part of which is also applicable to the skilled trades employees, and one for the skilled trades department only 121 When, however, within the following few weeks he claimed a slitter's job back in production under his "prior rights," Rudnik lost any prior rights to any other job, in- cluding his old job in the skilled trades department, a fact, made known to him at the time.8 Further, again under arti- cle VI, section 7, A, the seniority transfer provision, within I month of his return to production, Rudnik's 14-year sen- ionty was transferred to his new slitter's job in production. Thus, when in April 1972 Rudnik was faced with a layoff, he had no prior rights to his old maintenance job in the skilled trades department, nor did he have any seniority in the skilled trades department, for he had transferred that back in 1969 when he left that department and went back into production. Article VII, section 11, entitled "Shop Sen- iority" (the skilled trades division seniority provision),9 ex- pressly provides that skilled trades bidding and bumping will be handled exclusively under a "shop" classification seniority basis, and not under the normal plant seniority rules of article VI, section 9, B.10 Thus, the way that Rudnik could claim "shop" seniority in the skilled trades division in order to bump Smith, who had but 10 years seniority, all spent in that division, was through special interpretation "clarifying" article VII, sec- t The contract provision related to prior rights provides as follows No 5-Concerning Job Rights To clarify local interpretation of Article VI, Section 7 of the Local Supplement Agreement the following examples illustrate the rights of an employee to a former job or jobs An employee may, because of a succession of bumps, have rights to several different jobs at the same time He will continue to have rights to those jobs until such time as he exercises his rights to one of those jobs The exercise of his rights on one job will cancel his rights to any other job he has held, including the one he leaves at that time. 9 Art VII, sec It, provides as follows. Shop Seniority-Seniorityfor the Skilled Trades employees will be handled under a shop classification plan for placing by bid, bump, hiring, layoffs and recalls, instead of language in Article VI, Section 9 B All other portions of Article VI shall apply Shop Seniority shall be considered as seniority attained in classification A senior employee laid off due to a cutback may I Bump the least senior employee in the classification 2 Bump the least senior employee in the plant 3 Take a voluntary layoff 10 Art VI, sec. 9 B, reads as follows B. When layoffs become necessary the following procedure will be fol- lowed- I Employees whose jobs are eliminated will be listed according to their plant-wide seniority from most senior to least senior. 2 Employees will be given the options listed below in line with their seniority- a Job and classification option A senior employee affected may bump the least senior employee in his job or classification on his shift or in his department. b Shift option A senior employee affected may bump the least senior employee on his shift in his department c Division option A senior employee affected may bump the least senior employee in his division on the shift of his choice d Plant option A senior employee affected may bump only the least senior employee in the plant e The least senior employees referred to in a, b, c, d, above are the least senior employees at the time option is given. I Voluntary lay-off option A senior employee whose job has been eliminated or who has been bumped from his job may elect to go on layoff out of line of seniority. g All options are subject to the conditions established in Article VI, Section 9 c 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 11, which is what was done in the settlement of Gnev- ance No. 186, wherein the Union and Company agreed that under said article, "classification seniority once attained cannot be lost by bid, bump or by exercising option or prior rights. Any further moves will be made with this under- standing." Thus, by special interpretation of article VII, section 11, Rudnik was permitted to keep his 14 years of shop seniority in skilled trades department, even though he had transferred out of that department in 1969. It is readily apparent that such "clarification" is contrary to the seniority transfer provision of article VI, section 7, A." Equally important, however, if not more so, is the fact that, in so "clarifying" article VII, section 11, permitting Rudnik to bump into the Skilled Trades Division, the Re- spondent and the Company applied the layoff and bumping procedure under article VI, section 9, B, notwithstanding that article VII, section 11 specifically provides that said provision shall not apply. It holds that "seniority for the Skilled Trades will be handled under a shop classification plan for placing by bid, bump, hiring, layoffs and recalls, instead of language in article VI, section 9, B. (Emphasis supplied.) Thus, it cannot be said, as the Board was able to do in Miami Copper, that the construction of the contract as encompassed in the grievance settlement was a reasonable one, for, as pointed out, on its face it appears to be contrary to the provisions of the contract. Under these circumstances, I find that the Respondent's action in filing, processing, and settling Grievance No. 186 so as to accord Stanley Rudnik greater seniority in the skilled trades division than that held by Donald Smith, and thereby allowing Rudnik to bump Smith from his mainte- nance job, was unlawfully motivated by the present union leadership's demonstrated hostility toward Smith, growing out of the latter's earlier protected activities while serving as president of the Union. Accordingly, by such conduct, re- sulting in Smith's unlawfully being laid off from a job to which he was entitled, I find that the Respondent attempted to cause and did cause the Employer to discriminate against Donald Smith in violation of Section 8(a)(3) of the Act, thereby violating Section 8(b)(2) of the Act. I further find that, by such conduct, the Respondent restrained and coerced employees of the Employer in the exercise of their rights granted them under Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, United Rubber, Cork , Linoleum & Plastic Workers of America, Local 374, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. Uniroyal, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By causing, and attempting to cause, Uniroyal, Inc., to discriminatorily deprive Donald Smith of his maintenance ii The second sentence of that provision holds that only during the first month after transfer will an employee's seniority be maintained in his old department. job in the skilled trades division the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operation of Uni- royal, Inc., as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirma- tive action which is necessary to effectuate the policies of the Act. It having been found that the Respondent discriminatori- ly caused Donald Smith to be bumped from his mainte- nance job in the Employer's skilled trades division on or about the first of June 1972, it is recommended that the Respondent make Smith whole for any loss of pay he may have suffered as a result of its having caused Smith to be deprived of his job by making payment to him of a sum of money plus interest equal to that which he would have earned but for the discrimination against him, in accor- dance with the principles enunciated by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It is also recommended that the Respondent rescind its approval of the agreement by which Donald Smith was bumped from his job in the skilled trades division, and that the Respondent be ordered to cease and desist from causing or attempting to cause Uniroyal, Inc., or any other employ- er, to deprive employees of their jobs to which they are entitled on a seniority basis and for which said employees are qualified, except in accordance of the provisions of Sec- tion 8(a)(3) of the Act. Upon the foregoing facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER i2 Respondent, United Rubber, Cork, Linoleum & Plastic Workers of America, Local 374, its officers, agents, and representatives, shall: ii In the event no exceptions are filed as provided by Sec 102 .46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes RUBBER WORKERS, LOCAL 374 1. Cease and desist from: (a) Restraining or coercing employees of Uniroyal, Inc., or any other employer, in violation of Section 7 and Section 8(b)(1)(A) of the Act. (b) Discriminatorily causing and attempting to cause Uniroyal, Inc., to deprive Donald Smith, or any other em- ployee, of his job to which he is entitled and for which he is qualified. (c) In any like or related manner restraining or coercing employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make whole Donald Smith for losses he sustained, if any, as the result of Respondent's discrimination against him, computing the amount due in the manner set forth in the section of this Decision entitled, "The Remedy." (b) Rescind its approval of the agreement by which Smith was allowed to be bumped from his maintenance job in the Employer's skilled trades division. (c) Notify immediately Uniroyal, Inc., and Donald Smith, in writing, that it has no objection to Smith's employ- ment in the maintenance job he formerly held in the skilled trades division, and request that he be offered this, or an equivalent, job. (d) Post at its business offices in Chicago, Illinois, its meeting hall, and all other places where notices to members are customarily posted, a copy of the attached notice marked "Appendix." 13 Copies of the notice, on forms pro- vided by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecu- tive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, de- faced, or covered by any other material. (e) Promptly, upon receipt of copies of said notice from the Regional Director, return to him signed copies for post- ing by Uniroyal, Inc., it being willing, at the Company's Chicago, Illinois, plant and office. (f) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 123 WE WILL NOT cause or attempt to cause Uniroyal, Inc., to deprive Donald Smith, or any employee, of his job to which he is entitled because of his experience of the rights guaranteed him in Section 7 of the National Labor Relations Act in violation of Section 8(b)(2) of the Act. WE WILL NOT restrain or coerce the employees of Uni- royal, Inc., or of any other employer, in violation of Section 8(b)(1)(A) of the Act. WE WILL rescind our approval of the agreement by which Donald Smith was allowed to be bumped from his maintenance job in the Employer's skilled trades division. WE WILL pay Donald Smith any moneys he may have lost as a result of his having been unlawfully bumped from his maintenance job in the Employer's skilled trades division. WE WILL notify, in writing, Uniroyal, Inc., and Don- ald Smith that we have no objection to the employment of Smith in his former maintenance job in the skilled trades division, and that we request that he be offered this, or an equivalent, job. UNITED RUBBER, CORK, LINOLE- UM & PLASTIC WORKERS OF AMERICA, LOCAL 374 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Everett McKinley Dirksen Build- ing, Room 881, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.