International Brotherhood of Electrical Workers, Local 1504

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1504 (Western Electric Company, Inc.) and Betty Summerlot. Case 25-CB-1818 June 14, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 29, 1974, Administrative Law Judge John F. Corbley 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,I and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, International Broth- erhood of Electrical Workers, AFL-CIO, Local Union 1504, Indianapolis, Indiana, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on February 19, 1974, at Indianapolis, Indiana, pursuant to a charge filed by Betty Summerlot, an individual (sometimes referred to herein as Summerlot or the Charging Party) on October 23, 1973, which charge was Upon the unopposed motion of counsel for the General Counsel the transcript of this proceeding is hereby corrected in certain particulars served on International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1504 (sometimes referred to herein as Respondent or the Union) by registered mail on or about the same day and pursuant to a complaint and notice of hearing issued by the Regional Director for Region 25 of the National Labor Relations Board on December 28, 1973, which was also duly served on Respondent. The complaint alleges that the Respondent, through its officers and agents, threatened to, and did, cause the Employer, Western Electric Company, Inc., to refuse the Charging Party's request for a transfer and threatened to, and did, refuse to process the grievance of the Charging Party regarding shift assignment, in each instance because the Charging Party was not a member of Respondent . By those acts, the complaint further alleges, Respondent violated, variously, Section 8(b)(1)(A) and (2) of the Act . In its answer, which was also duly filed, Respondent denied the commission of any unfair labor practices. For reasons which will appear hereinafter, I find and conclude that Respondent refused to represent the Charg- ing Party in her efforts to obtain ajob transfer because she was not a member of the Respondent, and that Respon- dent thereby violated Section 8(b)(1)(A) of the Act. I will further find that Respondent did not violate Section 2(b)(2) of the Act, as alleged in the complaint. At the hearing, the General Counsel and Respondent were represented by counsel . All parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to file briefs . The General Counsel and Respondent waived oral argument at the conclusion of the hearing. Briefs have been filed by the General Counsel and Respondent and have been duly considered. Upon the entire records in the case, including the briefs and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer, Western Electric Company, Inc., is and has been, at all times herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Indiana. At all times material herein, the Employer has main- tained its principal office and place of business at Indianapolis, Indiana, sometimes referred to herein as the plant, and various other facilities throughout the United States, and is, and has been at all times material herein, engaged at said plant in the manufacture, sale, and distribution of telephone equipment and related products. During the 12 months preceding the issuance of the complaint, a representative period, the Employer in the course and conduct of its business operations manufac- tured, sold, and distributed at said plant products valued in excess of $50,000 which were shipped from said plant directly to States other than the State of Indiana. 211 NLRB No. 76 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1504 During this same 12-month period the Employer, in the course and conduct of its business operations , purchased, transferred, and delivered to its said plant goods and materials valued in excess of $50 ,000 which were transport- ed to said plant directly from States other than the State of Indiana. The complaint alleges, the parties stipulated, and I find that the Employer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENT, THE LABOR ORGANIZATION INVOLVED; ITS AGENTS The complaint alleges, the parties stipulated , and I find that the Respondent , International Brotherhood of Electri- cal Workers, AFL-CIO, Local Union 1504, is, and has been at all times material herein , a labor organization within the meaning of Section 2 (5) of the Act. The complaint further alleges, the parties stipulated, and I find that the following named persons occupied the positions set opposite their respective names, and have been and are agents of the Respondent acting on its behalf, and are agents within the meaning of Section 2 (13) of the Act: Grace Teague, executive board member, Dean Girt, executive board member, James M. Kent, president, and Betty L. Graves, executive board member. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events A collective-bargaining agreement exists, and has existed at all times material herein, between the Respondent and the Employer, wherein the Employer recognizes Respon- dent, pursuant to a certification of the National Labor Relations Board, as the exclusive bargaining representative of all hourly rated nonsupervisory production and mainte- nance employees of the plant. This. agreement permits employees to resign their union membership; hence union membership is not made a condition of employment. The Charging Party was employed in the foregoing production and maintenance unit at all times material herein and has been employed by the Employer about 20 years. The Charging Party was a member of the Respon- dent but resigned her membership about 1962. The Charging Party was not a union member at any time material herein. This case deals with the Charging Party's efforts, beginning about May 1973, to obtain work less physically strenuous and on a different shift from that on which she was employed in May 1973. Her employment at that time was on the day shift (7 a.m. to 3:30 p.m.) in Department #441 where she had worked for about 9 years. The Charging Party was suffering from back pain at that time 2 The finding as to this date is based on the testimony of Teague who seemed more positive of it than either Chandley or Summerlot. The official date of the reassignment, September 9, 1973, was agreed to between Respondent and the Employer, although it is not disputed that there was a question as to its accuracy. 3 At this time the Charging Party was admittedly laboring under the false impression that, if she could remain in #444 for 31 days, she could claim that position as a permanent assignment . However, a section of the 581 and subsequent to the events in question-or following the Thanksgiving Holiday in November 1973-she has had back surgery. She was recuperating from this operation at the time of the hearing. In late May 1973, the Charging Party, Summerlot, spoke to Frank Chandley, the department chief of departments nos. 441 , 444, and 1221 . Summerlot requested Chandley to have her reassigned from the day shift to the midnight shift (11 p.m. to 7 a.m.) or to a different department. She explained to him that her work at that time on conveyors was, she thought, hurting her back and she felt that if she could be assigned on a different shift in her department or to another department her chances of obtaining bench work-which would be less trying on her back-would be enhanced. Also she said such a change would leave her free to take back treatments during the day. Chandley advised Summerlot that department #441 had no midnight shift but that department #444, also under his supervision, did. Chandley said that he would look around to see if there was anything available to which Summerlot could be transferred. During the course of the summer of 1973 Summerlot reminded Chandley of her request for reassignment on a number of occasions and Chandley replied that he was working on it. Sometime in late August 1973, a need arose for immediate augmentation of the work force in department # 444 and Chandley asked Summerlot if the latter was still desirous of transferring. She said that she was and he informed her that he would like her to work in department #444 for 6 to 8 weeks because the Employer was in need of parts from that department . Summerlot replied that she would give Chandley an answer the following day. The following day the Charging Party agreed to accept this reassignment to the midnight shift in department #444 and she began work there on or about the Labor Day weekend (i.e., about September 1, 1973).2 The basis of her reassignment was temporary and was considered a "loan" under the collective-bargaining arrangements in effect between Respondent and the Employer at that time. Under section 3 of the contract such loans are not to exceed 4 weeks. A week or two after the Charging Party went to work in #444, Martha Harmon, a union member, spoke to Grace Teague, a union executive board member , and informed Teague that the Charging Party had been telling other employees that when she, the Charging Party, "got her time in," she was going to "bump" from the midnight shift to the day shift in department #444.3 Since Harmon was the lowest seniority employee on the day shift in #444 she was the employee who would have been "bumped ." 4 About this same time Sandra Lowe Bright, for whom the Respondent was seeking a shift change from the day shift to midnight shift in department #444, called Teague's collective-bargaining agreement between the Company and Respondent which had provided this right had been eliminated therefrom before the events in question here. Further, the Charging Party admitted stating to Coordinator John Davis, at about this time that she wanted her "card" moved to #444 permanently since she had 30 days' service there. 4 By "bumping," a longer service employee can displace one with lesser service. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attention to the fact that the Charging Party-who had come from department #444-was then working on the third shift in department #444. Teague then spoke to Section Chief Karasinski about the matter. Karasinski referred Teague to Chandley. Chandley told Teague that the Charging Party was only on loan for 30 days. Chandley further told Teague, however, that he would like. to retain the Charging Party in department #444. To this Teague objected pointing out that there were employees with longer service than the Charging Party who desired a shift change.5 Teague subsequently spoke to Gramlin, Chandley's superior, who advised Teague to let the matter go, for he, Gramlin, would not let the Charging Party "bump" anyone. The conversation between Teague and Gramlin took place a week or two after Teague's conversation with Chandley because Teague was unable to reach Gramlin sooner. Teague also spoke to Kent, the Respondent's president, about the matter in early October 1973 but Kent told Teague not to bother with it because, said Kent, since the Charging Party was only on loan in #444, she would be unable to "bump" anyone in #444. Kent said if the Charging Party desired to "bump" this would have to be done by the Charging Party in the latter's own department (#441, from which Summerlot was on loan). In the meantime, by late September 1973, several other employees were assigned from department #441 to #444 and this came to the Charging Party's attention. She then called Chandley to inquire about her own situation. Chandley told her he was working on a permanent transfer for her but that she would stay in #444 until he told her to go back. In early October 1973, shortly before October 7, 1973, Chandley was again approached by Grace Teague and also by Respondent's chief steward, J. C. Howard, who inquired what Chandley was going to do in connection with the Charging Party's status in department #444. Chandley told these union officials that he proposed to return the Charging Party to #441 since her 30 day "loan" period, which began officially on September 9, 1973, was due to expire. He further told them, however, that after 1 day in #441, he was going to reassign the Charging Party back to #444 for another 30 day "loan." Chandley also informed these Respondent officials that he would like to transfer the Charging Party to #444 permanently. They objected to this procedure, however, stating that it was in violation of the contract. Grace Teague also repeated that there were other people with longer service than the Charging Party who desired a shift change. In this same conversation the union officials also mentioned to Chand- ley that the Charging Party was not a union members On or about October 7, 1973, Chandley assigned the S Teague testified she objected because the contract permitted transfers of only 30 days duration (as I will find infra, I conclude that Teague was speaking of a separate conversation with Chandley). Chandley, however, testified as I have found, supra. I credit Chandley because his version is more consistent with the course of action taken by Teague particularly after speaking to Lowe, who, of course, already worked in #444 and, as will appear, thus had a greater claim that the Charging Party to work on that department's third shift. 6 The findings as to this conversation are based on the credible testimony of Chandley in this regard and were not essentially disputed by the Charging Party back to #441 for 1 day, as he had told the Union officials he would do. Then on the following day he reassigned her to #444 for another 30-day loan period. After the Charging Party returned to #444 the second time, Chandley spoke to Hooker, the Employer's section chief of labor relations, and asked Hooker if an informal agreement could be arranged whereby Summerlot could be transferred permanently to the third shift in #444. Hooker told Chandley he would get back to Chandley on the matter. By this time the Charging Party had learned that the employees who moved from #441 to #444 in late September 1973 had been transferred to #444 permanent- ly. It should be mentioned, at this juncture, however, that the instant transfers were of short-service employees who had been declared "surplus" in #441. Under the collec- tive-bargaining agreement between Respondent and the Employer "surplus" employees have first call on job vacancies.? The Charging Party, with around 21 years' service, was of about middle seniority in #441 (which then had a complement of about 140 employees). With her middle seniority, the Charging Party had not been declared "surplus" in #441.8 In any event, after learning that these employees had obtained permanent transfers to #444, the Charging Party about mid-October 1973 called Chandley and complained to him, telling the latter that she thought she should receive the permanent transfer because she was already on the job and knew how to do the work. Chandley then told the Charging Party that the Respondent had made an "informal grievance" about Chandley's assignment of the Charging Party to #444. Chandley continued, however, that the Charging Party would remain in #444 on a loan basis as long as she was needed and that he, Chandley, would continue to seek a permanent transfer for the Charging Party to #444. Upon hearing that the Respondent had become involved in the transfer matter, the Charging Party put in a telephone call to Kent, the union president. She did not reach Kent on this occasion but left a message to return her call. Kent then referred the call to Dean Girt, a Respondent executive board member and an admitted agent of Respondent, who telephoned the Charging Party. Girt did not previously know the Charging Party. In this telephone conversation the Charging Party began by telling Girt of her efforts to obtain a transfer. There is a sharp conflict however in the testimony as to what was said in the remainder of this conversation. Based on my resolution of credibility, I conclude that Girt told the Charging Party that there was no way she could be moved from one department to another. In response to the. Charging Party's repeated assertions that if she were a testimony of Teague . While Teague testified that she only spoke to Chandley once about the Summerlot matter I credit Chandley's recollection over that of Teague . Teague's recollection that she told Chandley that a permanent transfer would violate the contract jibes with Chandley's recollection of what was said in this second conversation by the Union officials to Chandley. Howard did not testify. ° See art. 28, Secs. 2 and 3 ofthat agreement (G.C. Exh. 3). 8 Only about 14 employees were transferred at this time to #444. All were surplus in #441 or other departments at the plant. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1504 583 union member, Respondent would help her, Girt told Summerlot that this had nothing to do with the matter .9 ''ife'Charging'PArty then' telephoned Chandley to advise him what Respondent had told her. In this conversation Chandley told the Charging Party that Grace Teague was one of the union officials who had spoken to him about the Charging Party's presence in department #444.10 Teague and the Charging Party already knew each other. The Charging Party then telephoned Teague that same day but was unable to reach Teague. The Charging Party did, however, reach Teague the following day. The Charging Party's husband, Don Summerlot, listened in on the conversation. The Charging Party informed Teague that she had heard Teague was the union official opposing the Charging Party's transfer, which Teague admitted. Teague also told the Charging Party that Respondent would not represent her or get her the transfer because the Charging Party was not a union member and did not pay union dues. The Charging Party then threatened to take the matter to the Labor Board. To this Teague responded that maybe the Board would make Respondent represent her but any grievance the Charging Party would file would go to "the bottom of the stack" where it would stay because Respondent would process the grievances of union members first and never get to the Charging Party's. The conversation then degenerated into an argument over the Charging Party's failure to join the Union and pay dues, Teague stating at one point that if no one paid dues there wouldn't be a union. After the Charging Party started using "unpleasant words," her husband called a halt to the conversation and directed her to hang up, which she did.11 About the same time as this last conversation took place (about mid-October 1973) the Charging Party asked her husband to place a call for her to Jim Kent, the union president, at the union hall. Mr. Summerlot did so, but being unable to reach Kent he left word for Kent to can back.12 Also at about this same time but before he returned the Charging Party's call, as will appear, Union President Kent also received telephone calls from Sandra Lowe Bright and Martha Harmon. When Kent returned Bright's call, Bright complained to Kent that she, Bright, could not understand why her, Bright's, change from an earlier shift to the midnight shift in #444 could not be effected when the Charging Party (who had come from a different depart- ment) was already working on the instant shift in #444.13 Kent also returned Harmon's call and Harmon made the same complaint to Kent that Harmon had previously made to Teague about Summerlot. Kent then called Hooker, the Employer's section chief of labor relations, and told Hooker that the Charging Party would have to be sent back to #441 because her continued presence in #444 was in violation of the contract. Hooker agreed.t4 Hooker then called Chandley back and told Chandley that the Charging Party could not remain m #444 without violating the contract. Kent returned the Charging Party's call in the early part of the week of October 21, 1973, and spoke to her at that time.15 9 The Charging Party asserted that Girt at first told her that the Union was wrong in blocking her transfer but, when Summerlot said she was not a union member, Girt stated that this put a different light on the matter. He then said, according to the Charging Party, that he would put the transfer through "if she would promise to sign a union card." Girt denied that he made this offer and also denied that he had the authority to make it. I credit Girt who appeared to me to testify in a sincere and straightforward manner . Moreover, it seems to me unlikely that Girt would make such a statement over the telephone to a person he did not know. Further, I find no basis in this record to support the conclusion that Girt, as a union representative, could "put a transfer through." Finally, I note that the Charging Party, in her ensuing conversation with Chandley, did not mention any such offer by Girt. I found the Charging Party to be a somewhat emotional and contentious witness, who testified with tsars glistening in her eyes . Hence, in the main, I have only credited her on conflicting matters where her testimony has been corroborated by other witnesses. 10 Chandley did not recall giving the Charging Party Teague's name. However, since Teague, in fact, had spoken to Chandley and since the Charging Party promptly called Teague to pursue the matter, as will appear, I conclude that Chandley was the source of the Charging Party's information regarding Teague's involvement. 11 These findings are based on the credible testimony of the Charging Party as essentially corroborated by her husband and in part admitted by Teague. Specifically, Teague admitted asking the Charging Party in this conversation why the latter did not join the Union-a question Teague said she had raised with the Charging Party many times. And Teague admitted telling the Charging Party that if no one paid dues there would be no union. Teague also admitted that-in answer to the Charging Party's query, "For me not to be a union member, would that make any difference?"-she, Teague, responded "Well, it would help." Consequently I do not credit Teague's inconsistent and gratuitous-testimony that she never refused to represent anyone nor her somewhat contrary version of the conversation. Her further denial that she told the Charging Party that she would get the latter's transfer through if she would sign a union card does not precisely contradict the testimony of the Charging Party which I have credited. 12 Mr. Summerlot credibly so testified. There is a conflict whether the message was for Kent to call Mr. or Mrs. Summerlot but since Kent did return the call and spoke to the Charging Party I find it unnecessary to resolve this conflict. 13 Bright denied that she called Kent about this matter I do not credit this denial. Bright had already brought the matter to the attention of Teague and from Bright's other testimony it is clear that Bright wanted the Union to take action to have her shift assignment changed. Further I found Bright to be very defensive-and consequently other than straightforward-in her testimony when she was asked if she had made any complaints about the Charging Party, who had been helpful to Bright in the past Harmon did not testify. 14 Kent at first thought that he so informed Chandley rather than Hooker but upon being refreshed with his affidavit, Kent recalled that it was Hooker. Chandley did not recall any conversations with union officials at this point in the events in question. 15 The precise date of this telephone call is not certain There is also a conflict whether it occurred before or after Kent asked the Employer to return the Charging Party to #441 . Kent testified that the Charging Party called to complain about the prior decision to move her back to #441. The Charging Party and her husband (who listened in on the conversation) said that Kent stated in Kent's conversation with the Charging Party during this call that he would immediately seek to have the Company put her back in department #441 on the day shift. But the versions of the Summerlots are not corroborative. Thus, the Charging Party said that Kent so stated at the beginning of the conversation after which Kent changed his approach and sought to have her agree to sign a union card if he would ask to have her transferred. Mr. Summerlot said that the conversation closed with such a statement by Kent after the Charging Party had refused to sign a card. I conclude that the call took place after Kent had spoken to Hooker but before the Charging Party was informed she was being returned to #441, as will appear. I reach this conclusion not only because the Summerlots failed to corroborate each other on this point but also because it would explain Kent's belief that the Charging Party was calling to complain about going back to #441. I further note that according to Mr. Summerlot there was a lapse of about a week before Kent returned the call after it had originally (Continued) 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is a sharp conflict in the testimony of the Charging Party and her husband (who listened in), on the one hand, and Kent, on the other, as to what was said in this conversation. For reasons set forth below I essentially credit the Charging Party and her husband over that of Kent. The Charging Party began the conversation by starting to explain the situation in respect to her efforts to obtain a permanent transfer. Kent cut her off telling her he had already spoken to Teague and knew about it. Kent then inquired whether the Charging Party would sign a union card if he, Kent, would work on her transfer. The Charging Party refused, asserting that this was "blackmail." The Charging Party then inquired whether or not there was a requirement in the contract or in the law to the effect that the Union had to represent union members and nonmem- bers on an equal basis. Kent replied that if there were such a requirement he would resign his post. Kent also, admittedly, berated the Charging Party about her nonunion status at some length during this conversation. The Charging Party, being disgruntled by what Kent was saying to her, told Kent that her husband was listening in on the conversation. With this Kent hung up.16 About October 22 or 23, 1973, the Charging Party was informed by her supervisor, "Scottie," that she would be returned to #441 the following Monday (October 29, 1973). The next day after Summerlot received this information from Scottie, she called Chandley. Chandley confirmed that the Charging Party was being sent back to #441 and also stated that he had incorrectly told her previously that the Union was trying to stop her transfer. He averred that he should have said it was "the company, the contract, was stopping" her. He further told her she could remain another week in # 444 if she so desired.17 The Charging Party returned to #441 on October 29, 1973. She worked in that department for about 3 or 4 weeks until Thanksgiving 1973 when she took leave to have her back operation. She was still on leave convalescing from this operation at the time of the hearing. B. Concluding Findings Notwithstanding Respondent's inimical attitude towards the nonunion status of the Charging Party, there is no probative evidence here that the Respondent caused or been placed to Kent by Mr. Summerlot. I found Mr . Summerlot to be a calm witness whose testimony was generally reliable unless otherwise noted. 16 These findings are based essentially on the mutually corroborative versions of Summerlot and her husband. I do not credit Kent's contrary version of the foregoing significant aspects of the conversation. Kent's manner on the stand was argumentative, hence I do not conclude that he testified in a forthright fashion where his testimony conflicts with the corroborated version of Mr. & Mrs. Summerlot. Moreover, Kent admitted that his conversation with the Charging Party dealt at least in part with her nonunion status which he said had been cause for complaint to him from her fellow employees in #441 . Also he admitted telling her in this conversation that it was a pity she didn't belong to the Union because she caused "a damn lot of trouble." Finally, he did not deny making the statement he would resign his post if required to represent nonmembers on a basis equal to union members. 17 The findings as to this conversation are based on the essentially corroborative versions of Summerlot and Chandley. I do not credit Summerlot's further statement that Chandley said "his orders" came from attempted to cause the Company to discriminate against the Charging Party for this reason. The only bases upon which Respondent told the Employer Respondent was taking action to block a permanent transfer of the Charging Party to #444 proceeded from complaints of other employees (who, I find, were Harmon and Bright) that such a transfer would have violated their rights established by company policy and the collective-bargain- ing agreement, and also proceeded from Respondent's own view that the contract would have been thereby violated. The undisputed testimony of Teague and Kent for the Respondent and Hooker and Chandley establishes that the Employer refused to make the transfer permanent because it shared Respondent's view that the contract did not permit it. Moreover, the Charging Party admitted that Chandley told her that the contract was the cause of her failure to obtain a permanent transfer to #444. And she also admitted that John Davis, an employer coordinator or supervisor in department #444, had likewise advised her that the contract would not permit her to stay in #444.18 The record also indicates that the complaints of Harmon and Bright were well founded. Thus, Chandley and Hooker for the Employer and Kent for Respondent confirmed that there is, and has been, a company policy whereby shift changes are allowed within a department or within a "universe" (distinct activity within a department). Under this policy, as the witnesses explained, an employee who has seniority may "bump" (move) from one shift to another in his own department or universe thereby displacing an employee with lower seniority. This could have been Harmon's fate if Summerlot had become permanent in #444 and had chosen to bump to the day shift there. For Harmon was the least senior employee in #444. Bright's complaint was that she sought to change from the day shift to the midnight shift in #444 but was unsuccessful at a time when an employee from a totally different department (Summerlot from #441) had ob- tained an assignment on the midnight shift in #444. No witness recalled that any individual has ever been permitted to transfer voluntarily from one department to another. The only such transfers resulted from situations covered by the contract whereby employees, declared "surplus" in their own department, were moved to another Kent (along with Hooker) because,. as I have found, Kent did not speak to Chandley about this matter, only Hooker, and Chandley did not corroborate this aspect of his conversation with Summerlot . Nor do I credit her statement that she told Chandley at this time that the Union had told her definitely that she was going back . I rather credit Chandley's testimony that she merely said she had spoken to an individual from the union hall, and had requested that individual to let her transfer departments but the individual refused . Chandley also testified that Summerlot told him someone had told her she had to go back . I conclude that the "someone" was "Scottie." 18 While Teague and Union Steward Howard told Chandley in Teague's second conversation with Chandley that the Charging Party was not a union member this fact developed only incidentally in the conversation and was not shown to have motivated Chandley's decision to return Summerlot to #441. Chandley, who impressed me as a sincere witness and who was seeking to help the Charging Party to obtain her transfer throughout all phases of the events in question here, conceded at the hearing that company policy and the collective-bargaining agreement would not have allowed him to transfer the Charging Party permanently to #444. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1504 585 department or returned to their former department within 2 years after leaving it,19 as will be discussed. Nor does the contract ' itself contain any provision authorizing or permitting such transfers.20 It rather contains a provision-article 28, entitled "Movement of Personnel"-which states (in sec. 1.1) that: "All adjust- ments to the work force through upgrading, downgrading or lateral transfer, or increases or decreases in the working force in accordance with the provisions of this article shall be made of the Company." (Emphasis supplied.) Section 2 of this article goes on to establish a procedure for filling any vacancy which might occasion movement of personnel. Under said section 2, first consideration must be given to "surplus" employees (who if not placed must be laid off under section 3.2) and second consideration must be given to certain employees seeking to return to jobs performed satisfactorily within the previous 2 years. Other priorities follow in descending order but the first two are sufficient for our purposes here. In the present case all those who obtained permanent transfers to #444 had been declared "surplus" in #441 and elsewhere in the plant. There is no showing that the Charging Party was declared surplus-indeed it was shown to the contrary. Even had it been shown that there were insufficient surplus employees to fill all vacancies in #444, Summerlot would not qualify under the second priority, because she had not worked in #444 during the preceding 2 years-she had rather been employed since about 1964 in #441 according to her own admission. Inasmuch as the General Counsel has not established that the Employer's refusal to grant Summerlot a perma- nent transfer was based on Summerlot's nonunion status and because it rather appears that the collective-bargaining agreement would not have permitted her transfer-at least not without previous exhaustion of certain priority group- ings of employees in which she did not qualify for inclusion-and, finally, since her transfer would have interfered with the shift assignment rights of employees already working in department #444, 1 am satisfied that Respondent's request that the Employer return her to #441 for these reasons did not violate Section 8(b)(2) of the Act.21 I shall, accordingly, recommend dismissal of this allegation of the complaint. There is, however, no justification for the statements by Teague to the Charging Party that Respondent would not represent Summerlot, seek her transfer, or process her grievances because Summerlot was not a union member. Nor is there any license for Kent's statement to the Charging Party that any effort by Respondent to seek her transfer was conditioned upon her signing a union card. 19 There was an indication that the Respondent had obtained an agreement from the Employer to enable such a transfer for Bright, a union member, for medical reasons but Bright admitted that she rather sought and obtained retention in #444 to which she had already been surplused. 20 The General Counsel sought to show that Kent had made a prior inconsistent statement in this regard in a letter Kent sent to the Regional Office in connection with the investigation of this case . In the letter Kent stated "There are no provisions in the Union Contract for permanent transfers." On the other hand, he testified at the hearing that there is a provision "covering" permanent transfers. I perceive no fatal inconsistency here. Kent's position, with which I agree, is that the contract does not provide "for" (i.e. permit ) permanent transfers as an employee right. But it does "cover" such transfers in a manner which limits them to "surplus" or These statements constituted a threat to the Charging Party that, if she did not join the Union, it would not represent her in her dealings with the Employer. But the Charging Party has the right under Section 7 of the Act not to engage in union activities and the collective- bargaining agreement between Respondent and the Em- ployer does not affect that right. It rather permits employees to resign from the Union, as Summerlot did many years ago. Moreover, it is well established that Respondent is obliged, based on its status as the exclusive bargaining representative of all the employees in the collective- bargaining unit, to represent all employees in that unit equally, regardless whether they be members of the Union or not 22 In these circumstances I conclude that the statements of Union Agents Kent and Teague restrained the Charging Party in the exercise of her rights guaranteed by Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act 23 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce or in an industry affecting commerce within the meaning of the Act. 2. Respondent is a labor organization within the meaning of the Act. 3. Kent, Teague, and Girt are agents of Respondent within the meaning of Section 2(13) of the Act. 4. By Kent's and Teague's above-found statements to "return to former job within 2 years" situations, and other conditions as will appear. 21 In reaching this conclusion I also rely upon my findings , supra, that the efforts by Teague first, and Kent later, in approaching the Employer about the Charging Party's status in #444 preceded, in each instance, the Charging Party's telephone conversations with them, heretofore recounted, and such efforts by the union agents rather proceeded directly from complaints by other employees. In so concluding I also note that the Charging Party's loan period had already exceeded the 28 days permitted by sec. 3 of the collective-bargaining agreement. 22 Magma Copper Company, 200 NLRB No. 8, and cases cited therein. 23 Dow Chemical Company, 187 NLRB 968. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Charging Party, Respondent has coerced or restrained the Charging Party in the exercise of her rights guaranteed practices not found herein. by Section 7 of the Act and Respondent has thereby violated, and is violating, Section 8(b)(1)(A) of the Act. 5. Respondent has not caused or attempted to cause the Employer to discriminate against the Charging Party in violation of. Section 8(a)(3) of the Act, hence the Respon- dent has not violated Section 8(b)(2) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: and it hereby is, dismissed insofar as it alleges unfair labor 24 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes. 25 In the event that this 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX ORDER24 Respondent International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1504, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining employees in the exercise of their rights guaranteed in Section 7 of the Act by threatening employees that it will not represent them if they do not join International Brotherhood of Electrical Workers, AFL- CIO, Local Union 1504. (b) In any like or related manner restraining employees of Western Electric Company, Inc., in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the authorized representative of Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain employees in the exercise of their rights guaranteed in Section 7 of the Act by threatening employees that we will not represent them if they do not join International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1504. WE WILL NOT in any like or related manner restrain or coerce employees of Western Electric Company, Inc., in the exercise of the rights guaranteed them by Section 7 of the Act. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO LOCAL UNION 1504 (Labor Organization) conspicuous places, including all places where notices to Dated By members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced,or covered by any other material. (b) Furnish to the Regional Director for Region 25 signed copies of said notice for posting by Western Electric Company, Inc., if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 25, in writing, within 20 days of this Order what steps Respon- dent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 150 W. Market Street, ISTA Center, 6th Floor, Indianapolis, Indiana 46204, Telephone 317-633-7360.