International Harvester Co.

HOUGH DIV. OF INTL. HARVESTER Hough Division, International Harvester Company and Henry C. Winslow Local 1643, United Automobile, Aerospace & Agricul- tural Implement Workers of America and Henry C. Winslow. Cases 13-CA-11795 and 13-CB-4484 March 5, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a consolidated complaint and notice of hearing, dated November 30, 1972, against Hough Division, International Harvester Company (hereinafter Respondent Em- ployer) and Local 1643, United Automobile, Aeros- pace & Agricultural Implement Workers of America (hereinafter Respondent Union). The complaint alleged that the Respondents had engaged in and were engaging in certain unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3), 8(b)(1)(A) and (2), and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, order consolidating cases, and complaint and notice of hearing were duly served upon the parties. Respondents individually filed their answers to the complaint, denying commission of unfair labor practices and requesting that the complaint be dismissed. Thereafter, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to itself for findings of fact, conclusions of law, and Order. The parties stipulated that they waived a hearing before an Administrative Law Judge, the making of findings of fact and conclusions of law by an Administrative Law Judge, and the issuance of an Administrative Law Judge's Decision, and that no oral testimony was necessary or desired by any of the parties. The parties also agreed that the charges, consolidated complaint, the answers thereto, and the stipulation of facts consti- tute the entire record in this case. On May 8, 1973, the Board issued its Order granting petition, approving stipulation, and trans- ferring the proceeding to the Board. Thereafter, the General Counsel and Respondent Union filed briefs in support of their positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the I The position of Respondent Employer was set forth in a letter by its counsel to the Board's Regional Office shortly before the complaint was 209 NLRB No. 54 357 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the stipulation, includ- ing exhibits, the briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Respondent Employer is a Delaware corporation, with its home office and principal place of business in Chicago, Illinois. It maintains a plant known as the Hough Division in Libertyville, Illinois. This division is engaged in the manufacture of road- building and general excavating heavy equipment. During the last calendar year, a representative year, Respondent Employer, in the course and conduct of its operations, purchased goods having a value in excess of $50,000 from sources located outside the State of Illinois, and caused these goods to be shipped directly from their sources to the Hough Division plant at Libertyville, Illinois. The parties have stipulated, and we find, that Respondent Employer is, and at all material times has been, an employer within the meaning of Section 2(6) and (7) of the Act. We find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties have stipulated, and we find, that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts Since some time prior to 1950, the International Union, United Automobile, Aerospace & Agricultur- al Implement Workers of America (hereinafter UAW) and various affiliated locals have represented employees of Respondent Employer at many of its plants throughout the United States. At these locations, the bargaining relations between the parties have been governed by one Production and Maintenance Main Labor Contract (hereinafter Master Agreement) executed by Respondent Em- ployer and UAW. From 1953 to June 3, 1970, the UAW and its affiliated Local 1301 represented a unit of pro- duction and maintenance employees at Respondent Employer's "Tractor Works" facility in Chicago. Other employee units at Tractor Works were repre- sented by other unions. On or about June 3, 1970, issued In all material respects, its position conforms with that of Respondent Union described in detail below 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tractor Works ceased operations. Shortly prior to and shortly after the closing of the Tractor Works facility, Respondent Employer and four unions, including UAW Local 1301, entered into separate agreements covering the transfer of their respective unit employees from Tractor Works to other Respon- dent Employer plants. The agreement between Respondent Employer and the UAW, its Local 1301, and other affiliates covering employees the UAW represented provided that all Tractor Works pro- duction and maintenance employees transferring into plants of Respondent Employer, other than its Hough Division, would be given a pegged seniority date of October 1, 1961. Employees transferring into Hough Division plant would he given a pegged seniority date of September 1, 1969.2 The agreements between Respondent Employer and the local affili- ates of the other three unions, Chicago Journeymen Plumbers Association (Plumbers), International Die Sinkers Conference (Die Sinkers), and International Brotherhood of Electrical Workers (IBEW), howev- er, specifically waived the granting of portable seniority for any of their respective employees transferring out of Tractor Works, but instead provided that their seniority dates would commence on the date they started work at the plant to which they transferred.3 After the closing of the Tractor Works plant, a number of its employees transferred into the Hough Division plant. Some of them were transferees from the production and maintenance unit represented by the UAW and its Local 1301. Ten employees, however, were transferees from the units represented by the other three unions. All of the transferees became part of an overall production and mainte- nance unit at the Hough Division plant, which was represented by the UAW and UAW Local 1643, Respondent Union.4 In anticipation of the Tractor Works closing, UAW, Local 1643, and Respondent Employer, on March 2, 1970, signed an agreement which provided for a pegged seniority date of September 1, 1969, for all employees transferring to Hough from Tractor Works, presumably including those 10 employees who had been in the non-UAW units there.5 At a May 1972 membership meeting, Respondent Union voted to grant an October 1, 1961, pegged seniority date to all transferees from Tractor Works. There is nothing to indicate that Respondent intended to limit the effect of this decision to employees represented by the UAW at Tractor Works. Respondent Union subsequently demanded of Respondent Employer that it take action in conformity with that decision. On August 10, 1972, UAW International Representative Paul Korman instructed Respondent Employer to exclude from the pegged seniority request the 10 members of Respon- dent Union who had transferred from the non-UAW units at Tractor Works. Since that time, Respondent Employer has complied with Korman's request and granted additional seniority only to the Tractor Works transferees who were formerly in the UAW unit. Pursuant thereto, 2 of the 10 non-UAW unit transferees, W. Feret and Louis Krolis, were subse- quently "bumped" to lower job classifications be- cause of their lack of seniority. The complaint alleges that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act in August 1972 by seeking to arrange that the employ- ees who had transferred from non-UAW units at Tractor Works receive less seniority than their fellow unit employees who had been members of the UAW unit at Tractor Works. The complaint further alleges that Respondent Employer violated Section 8(a)(3) and (1) of the Act by acquiescing in and implement- ing such arrangement. B. Contentions of the Parties Respondent Union initially asserts in its brief that it did not commit the acts complained of in that the request to exclude the 10 non-UAW unit transferees from greater seniority benefits was made by Kor- man, a UAW international representative, who could not bind Respondent Union absent the latter's ratification or cooperation. Assuming that Korman's actions were properly imputed to it, Respondent Union further argues that the denial of greater seniority to the 10 alleged discriminatees was properly motivated by its good-faith attempt to abide by the provisions of the Master Agreement which guaranteed a portable pegged seniority date of October 1, 1961, to all transferees from the UAW unit at Tractor Works.6 Since the 10 alleged discriminatees were never part of the UAW unit at 2 Although the agreement refers to all Tractor Works employees, the stipulation makes it clear that this agreement covered only employees represented by the UAW and its locals 3 The Die Sinkers contract did provide for portable seniority , but only for employees transferring into certain plants of Respondent not in issue here,, UAW and the affiliated Respondent Union had represented the employees in that unit since August 1969 5 In this regard, we have noted that par. 12 of the Stipulation of Facts has described this agreement as only bestowing the pegged 1969 seniority dates on those transferees from the UAW unit at Tractor Works. For reasons outlined below, we need not resolve this conflict in the record between the stipulation and wording of the agreement itself, attached to the stipulation as Exh. F 6 The relevant portions of art. XVI. sec. 5-Seniority-of the Master Agreement (1968-71 ) read as follows: (h) If the transfer of major operations between Works or to a new Works results in the permanent termination of employees with seniority. the Company will give preference to the application of a laid off employee having seniority in a bargaining unit covered by this contract for employment in a bargaining unit represented by the HOUGH DIV. OF INTL. HARVESTER Tractor Works, they never enjoyed the portable seniority guaranteed under the Master Agreement to those other employees represented by Respondent Union who were in that UAW unit. Therefore, the denial of the greater seniority benefits to these 10 employees was not based on their former non-UAW membership status, but on their former non-UAW unit status and hence was not violative of Section 8(b)(1)(A) and (2) or 8(a)(3) of the Act. Respondent Union finally argues that, as the 10 alleged discrimi- natees were first denied superior seniority rights when they transferred to Hough in 1970, their charges, filed in September 1972, were untimely and their complaint therefore should be dismissed on these grounds, barred by Section 10(b) of the Act. General Counsel asserts in its brief that there had been a history of uniformity of treatment of all of the Tractor Works transferees by Respondent Union, as evidenced by the March 1970 agreement between Respondent Union and Respondent Employer, and the Respondent Union's May 1972 request that all transferees from Tractor Works be granted a pegged 1961 seniority date. Korman's request in August 1972, that the 10 former non-UAW unit employees of Tractor Works be excluded from the May 1972 request and Respondent Employer's agreement, amounted to unlawful coercion of these 10 employ- ees and discrimination against them because of their non-UAW membership status at Tractor Works. General Counsel also argues that, while Korman was a UAW international representative and not an official spokesman for Respondent Union, his request was ratified by the Union in that it did not object to Korman's initial request, or subsequent "bumping" of employees Feret and Krolis. General Counsel acknowledges that the Master Agreement gives superior rights to ex-UAW unit employees at Tractor Works, but contends that this agreement was superseded by the subsequent March 1970 agreement between Respondent Employer and Respondent Union which gave equal seniority rights to all ex- Tractor Works employees. C. Conclusions The seniority status -of employees transferring into an already existing plant unit represented by an incumbent union has always posed difficult prob- lems, especially where the transferees have come Union to which the work is transferred . (c) When employed, such employee will have the status of a probationary employee in the new Works . Upon completion of the probationary period. semonty will date back to October 1, 1961, or his seniority date, whichever is later The successor Master Agreement (1971 to date) does not differ in any material aspect 359 from a plant unit which was either represented by another union or was unrepresented altogether.7 In the instant case, however, we note that the usual dilemma of how to dovetail the seniority of the employees transferring to the Hough Division from the various employee units of Tractor Works was not only contemplated, but a specific resolution was provided therefor by all the interested parties, the Plumbers, Die Sinkers, and IBEW, as well as the UAW, their affiliated locals, and Respondent Em- ployer. The UAW-Employer Master Agreement, and a supplemental transfer agreement between Local 1301, UAW, and Employer provided, in effect, portable seniority for all UAW unit employees transferring from Tractor Works to Hough. The other three unions also negotiated transfer rights on behalf of their respective employees, but specifically waived portable seniority. Given such an arrange- ment by Respondent Employer and the bargaining representatives of all the employees concerned, we cannot now hold that in effectuating such an arrangement and granting portable seniority only to the transferees from the UAW unit at Tractor Works, Respondent Union and Respondent Employ- er violated Section 8(b)(1)(A) and (2) and 8(a)(3) of the Act. The General Counsel relies on the March 1970 agreement between the Respondents, wherein they contracted to treat all the Tractor Works transferees in a uniform manner regarding seniority, as the linchpin of his case. By subsequently taking away the seniority rights of the 10 non-UAW unit transferees, argues General Counsel, the Respondents unlawfully discriminated against them. Respondent Union counters with the contention that the March 1970 agreement between Respondents was intended to cover only transferees from the UAW unit at Tractor Works, and the parties in this proceeding stipulated to such coverage in the stipulation of facts. We are thus faced with a conflict in the record between the March 1970 agreement itself, which on its face accords pegged seniority dates to all transferees from Tractor Works, including the 10 alleged discrimina- tees, and the stipulation, which interprets the agreement in such a way that these 10 alleged discriminatees are not to be accorded such seniority dates. However, we need not resolve this conflict in the evidence since a resolution in favor of the General Counsel would not cause us to change our 7 See International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, Local Union No 17 (Colorado Transfer & Storage, Inc), 198 NLRB No 42; International Photographers of the Motion Picture Industries, Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (MPO-TV of California, Inc, Y-A Productions, Inc), 197 NLRB 1187. Compare Fleet Carrier Corporation, 201 NLRB 227 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion that Respondents did not violate the Act as alleged in the complaint. Given the 1970 agree- ment as construed by the General Counsel, such an agreement would be a clear departure, most likely inadvertent, from the Master Agreement, under which the benefits of portable seniority accrued only to those employees covered by it. The subsequent reversal of policy and refusal to grant portable seniority to the 10 non-UAW unit transferees would represent nothing more than an attempt to bring the dealings between Respondent Union and Respon- dent Employer back within the framework of the Master Agreement and, for that matter, the effects- of-transfer agreements negotiated by the other three unions. In sum, we perceive nothing coercive or discrimi- natory about the way Respondents treated the 10 non-UAW unit transferees. They never had any vested portable seniority rights at the time of transfer which could later be unlawfully denied them by either Respondent Union or Respondent Employer. We therefore are unable to conclude that Respon- dent Union and Respondent Employer violated the Act as alleged in the complaints , CONCLUSIONS OF LAW 1. The Respondent Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Hough Division, International Harvester Com- pany, did not violate Section 8(a)(3) and (1) of the Act. 4. Local 1643, United Automobile, Aerospace & Agricultural Implement Workers of America, did not violate Section 8(b)(1)(A) and (2) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER KENNEDY, dissenting: Equal treatment of employees in establishing a new seniority date was agreed to by both the Respondent Union and the Respondent Employer for those employees who transferred to the Hough Division 8 By so finding, we need not dispose of Respondents' defenses of lack of agency and untimeliness of the charges 9 My colleagues point to a conflict between the wording of the agreement and the recitation of what the agreement was in par 12 of the stipulation of facts My colleagues find it unnecessary to resolve the conflict because in any event they reach the same conclusion to dismiss the complaint I disagree and would resolve the conflict in favor of the clear and -plant as a result of the closing of the Tractor Works plant. Notwithstanding that specific agreement, unequal treatment subsequently was accorded to those same employees long after their transfer to the Hough Division plant. The sole basis used for the disparate treatment of these employees was whether in past years the employees had been represented by the UAW in the Tractor Works. If the employees had been represent- ed previously by the UAW, then the UAW request- ed, and the Employer acquiesced, in giving those employees a superior seniority date of October 1, 1961. If the employees had not been represented previously by UAW in the Tractor Works, then they were denied that early seniority date. In my view, this belated reversal of the specific agreement to equal treatment of transferring employees and the resulting disparity of treatment based solely on prior UAW representation in the Tractor Works violated the Act as alleged by the General Counsel. On March 2, 1970, in anticipation of the closing of the Tractor Works plant, the Respondent Employer and both the International Union of UAW and its affiliated Local Union 1643 entered into an agree- ment whereby a pegged seniority date of September 1, 1969, was agreed to for "any Tractor Works employee who may be transferred to the Local 1643 bargaining unit at Hough Works as a result of the Tractor Works closing." This clear and express intent of the parties is made plain in paragraph 2 of that agreement and is repeated in unequivocal language in paragraph 4 of the agreement .9 The agreement provides: THIS AGREEMENT is entered into this 2nd day of March, 1970, by and between INTERNATIONAL HARVESTER COMPANY (hereinafter called the Com- pany) and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and its affiliat- ed Local Union 1643 (hereinafter collectively called the Union). WHEREAS, the Company has been advised that the members of Local 1643 have voted to provide a pegged seniority date of September 1, 1969, at Hough Works of the Company, to any Tractor Works employee who may be transferred to the Local 1643 bargaining unit at Hough Works as a result of the Tractor Works closing, and WHEREAS, the Union has requested the Compa- unambiguous language of the document itself There is no need to look beyond the document for interpretation of its precise reference to "any Tractor Works employee" which is stated not once, but twice , in the four short paragraphs of the agreement Moreover , the language of the document is consistent with par 14 of the stipulation concerning the action taken in the May 1972 union meeting concerning a pegged seniority date for "all transferees from Tractor Works " HOUGH DIV. OF INTL. HARVESTER ny to enter into an agreement in accordance therewith; NOW THEREFORE, the Company and the Union do hereby agree, notwithstanding anything to the contrary appearing in any Master Labor Con- tract, supplemental letter agreements or local seniority supplement agreements entered into between the Company and the Union, that for purposes of seniority, any Tractor Works employ- ee who, as a result of the Tractor Works closing, is transferred to the Local 1643 bargaining unit at the Company's Hough Works will be credited with a pegged seniority date in the Local 1643 bargaining unit of September 1, 1969. Dated this 2nd day of March, 1970 FOR THE COMPANY FOR THE UNION /s/ T. F. Logan /s/ Frank C. Muse Hough Works Local 1643 /s/ Robert F. Crowel /s/ S. Kahan International Union Furthermore, the agreement expressly provided that the parties entered into it "notwithstanding anything to the contrary appearing in any Master Labor Contract, supplemental letter agreements on local seniority supplement agreements entered into between the Company and the Union." Thus, the parties expressly waived whatever contrary provi- sions existed in other agreements in favor of equal treatment for all employees transferring from the Tractor Works plant. Thus, as of March 2, 1970, the International Union of UAW, its Local 1643 at the Hough Division, and the Employer were in complete agreement as to granting a uniform seniority date of September 1, 1969, to those employees transferring from the Tractor Works plant which subsequently ceased operations on June 3, 1970. That agreement re- mained unchanged for over 2 years. 10 The 10(b) issue raised as a defense by the Respondent Union is not ruled upon by the majority My Colleagues reach the merits of the case and find that the complaint lacks merit, so they abstain from deciding the issue of whether Sec. 10(b) of the Act bars such consideration of the merits In the vernacular, this is "putting the cart before the horse " In my opinion, it is necessary first to decide whether the unfair labor practice charges are timely filed within the scope of Sec 10(b) I would do so here and conclude that the finding of an unfair labor practice is not barred by Sec 10(b) because the discrimination occurred in August 1972 when the 10 employees were denied the 1961 seniority date Since the original charges were filed on September 18, 1972, the allegations of the complaint clearly occured within 6 months of the filing and service of the charges as required by Sec 10(b) li The defense that the Respondent Union should not be held responsible for the acts of the international representative of UAW was also not ruled upon by the majority. I would find that the Respondent Union is liable for the international representative's action in requesting the Employer to deny a 1961 seniority date to employees not represented by the UAW at Tractor Works The International Union and its affiliated Local 361 Then in May 1972 the members of UAW Local 1643 voted to grant a seniority date of October 1, 1961, to "all transferees from Tractor Works to International Harvester." The Union made written requests to the Employer to this effect . However, on August 10, 1972, an international representative of UAW requested the Employer not to grant the 1961 seniority date to employees "who had not been employed in the production and maintenance unit or the other units represented by UAW at the time of their departure from Tractor Works." Instead of the equal and uniform treatment which the parties had previously agreed to, the Employer denied 10 employees a 1961 seniority date solely because they had not been represented for collective bargaining by UAW at the Tractor Works plant. That was the only basis for treating those 10 employees in a disparate manner from the rest of the transferees. In my view, this discrimination in August 1972 violated the Act.10 The majority concludes that the Union's request" in August 1972 was a "reversal of policy" and "nothing more than an attempt to bring the dealings between Respondent Union and Respondent Em- ployer back within the framework of the Master Agreement." Thus, the justification for the disparate treatment of the 10 transferees not previously represented by UAW is grounded on the terms of a contract which all parties had expressly waived in the March 2, 1970, agreement. We should heed the teachings of the Ninth Circuit in the Menasco Manufacturing Company case 12 at 765: But while the latitude necessary to allow a union and an employer to negotiate an agreement must as a practical matter be broad enough to permit them to draw distinctions between differ- ent classes of employees, still this latitude is plainly limited by the public policy, expressed in the Act itself, which forbids either union or employer to discriminate against an employee so 1643 jointly represent the unit employees at the Hough Division. The International Union jointly signed the March 2, 1970, agreement with the Employer concerning the equal and uniform treatment to be accorded transferring employees in establishing a common seniority date It was the Local Union in May 1972, which initiated the request to extend the seniority date back to 1961 and the international representative's action followed thereafter Furthermore, the Employer took the action requested by the international representative to the detriment of the 10 employees. There is no showing on this record that the Local Union protested that action or in any way showed that it did not acquiesce in and ratify the action of its International Union In these circumstances , I would find the Local Union to be responsible for causing the discrimination against these 10 employees in the unit which the Local Union jointly represents with its international is N.LR B v. International Association of Machinists, Aeronautical industrial District Lodge 727 and Local Lodge 758, AFL-CIO [Menarco Manufacturing Company], 279 F 2d 761 (1960), cert. denied 364 U S 890 (1960) 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to encourage or discourage his membership in a union. It is clear as well that this policy would forbid seniority status being used as a basis for perpetuating any discrimination against employ- ees in violation of the Act. [Citations omitted.] they had previously been represented by UAW at another plant and the contemporaneous denial of such an early seniority date to transferees who were not previously represented by the Union is clearly discriminatory within the meaning of the Act and I would so find. In my view, the granting of superior seniority all the way back to 1961 to transferees solely because