Steelworkers Local 8061

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Steelworkers of America, Local No. 8061, AFL-CIO and Evelyn Hinckley and Arrowhead Engineering Corp., Party of Interest. Case 25-CB- 2521-2 December 1, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 10, 1977, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, conclusions, and recommendations of the Adminis- trative Law Judge only to the extent that they are consistent herewith. The Administrative Law Judge found that the Respondent did not violate Section 8(b)(2) and 8(b)(1)(A) of the Act by causing or attempting to cause the Employer to reverse itself on December 29, 1975, and thereby to reduce the job status of Evelyn Hinckley; that the layoff of Hinckley on February 9 was a direct consequence of the legitimate reduction in her seniority; and that, as the Employer's treatment of Hinckley was caused by legitimate action on the part of the Respondent, the allegation that the Respondent failed to initiate some form of grievance, to undo on behalf of Hinckley what it rightfully did on behalf of the entire work force, was plainly unsubstantiated. The General Counsel excepts, contending that the Administrative Law Judge failed to consider the 8(b)(1)(A) violations found in the prior case' involving an earlier charge growing out of competing claims to the work of a toolcrib attendant and to consider the depth of the Respondent's hostility reflected in that decision and in the instant case. The essential facts, as more fully set forth by the Administrative Law Judge, show that in 1975, during the time that employee Evelyn Hinckley's husband Emmett was president of the Respondent, employee Marlene Ferry filed a grievance asserting that, on the basis of plant seniority, she should have been allowed to bump one of the other toolcrib attendants, including Evelyn Hinckley, who had the job on the I United Steelworkers of America, Local No. 8061, AFL-CIO (Arrowhead Engineering Corp.). 226 NLRB 403 (1976). 233 NLRB No. 107 first shift. Emmett Hinckley later acquiesced in the Employer's disposition of the grievance and dropped the matter on behalf of the Respondent. As Emmett Hinckley's action resulted in the protection of his wife Evelyn's job, several officers of the Respondent reacted adversely. The reaction of these officers of the Respondent and their ensuing conduct formed the basis for the Board's finding in the prior proceeding2 that the Respondent violated Section 8(b)(I)(A) when Vice President Tubbs told Evelyn Hinckley that the Respondent's agents had not faithfully prosecuted a grievance on her behalf because of the manner in which Evelyn Hinckley's husband had performed his duties as president of the Respondent, and that her job might be affected by the fact that she had filed a complaint with the International Union's staff representative; and when Respondent Treasurer Luckett threatened to "blackball" Emmett Hinckley because his wife had filed charges with the Board. In November 1975, Evelyn Hinckley had been accused of either hiding or stealing parts by Foreman John Belork of the second shift. When Foreman Larry Loetz, Evelyn's immediate supervisor on the first shift, asked Evelyn to account for the charge, she requested a meeting with the other tool crib attendants so that the matter could be resolved. Following the cancellation of a previously scheduled meeting on December 18, Evelyn punched out, informed the secretary to the president of the Employer that she was quitting, and completed a quit slip, which she signed and which indicated in no uncertain terms that she could no longer tolerate Foreman John Belork. Evelyn returned to her work area and informed Foreman Loetz and Belork that she was quitting and left the premises. When Tubbs, who had succeeded Emmett Hinck- ley as president of the Respondent, learned that Evelyn had quit, he notified the plant superintendent that the job vacated by Evelyn would have to go up for bid. Nevertheless, on December 23, 1975, Evelyn returned to work to her former position with the same seniority and pay, following a meeting between Emmett Hinckley, Evelyn Hinckley, and the presi- dent of the Employer. No representative of the Respondent was at such meeting. Emmett Hinckley no longer served in any official capacity with the Respondent. When President Tubbs heard about Evelyn's reinstatement, he telephoned the Employer and indicated that since Evelyn Hinckley had quit her job she had no right to the toolcrib position, but should be considered a new employee with all other incidents of probationary employment, including 2 Ibid 858 UNITED STEELWORKERS OF AMERICA, LOCAL 8061 base rate, new seniority, and work as a production employee. On December 29, the Respondent filed a written grievance concerning the Employer's bypassing of the Union and its individual meetings with Emmett and Evelyn Hinckley. On the same date, the Employer notified the Respondent that it had acquiesced in the Respondent's protest concerning the restoration of Evelyn Hinckley by notifying the Respondent that Evelyn had been classified as a new employee with a new seniority date of December 23, 1975. Evelyn Hinckley reported for work on December 29 and was informed by the Employer that she was a new employee, with a seniority date of December 23, 1975. and that she would be placed in a production job with a production rate. On February 9, 1976, Evelyn Hinckley, because of her low seniority, was included in a general layoff. There is no evidence that Evelyn Hinckley filed a grievance concerning this matter. The Administrative Law Judge found that these facts dispel any notion that Evelyn Hinckley lost her seniority, former position, and rate of pay, and was laid off on February 9, 1976, by virtue of anything other than legitimate cause; that the adversities she sustained originated with her decision to quit; and that the record discloses that the Union had no provocative role with respect to this resignation. However, the General Counsel contends that the Respondent violated Section 8(b)(2) and 8(b1)IXA) by causing Hinckley's demotion to a production job on December 23, with new seniority and a lesser rate of pay, as well as the layoff of February 9 which stemmed directly from her impaired seniority status. We agree with the General Counsel. In our view, the Respondent's conduct herein through its agents, President Tubbs and Treasurer Luckett, constitutes an implementation of those threats which were made by Tubbs and Luckett to Evelyn Hinckley and found violative of Section 8(b)(1)(A) of the Act in the prior proceeding. Our factual findings in the prior case, as well as the instant case, show that Tubbs, as well as other officials of the Respondent, was hostile to Evelyn Hinckley and repeatedly threatened to get her out of her toolcrib job. While the prior case is not controlling herein, it is clear that the instant proceeding is but a continuation of the controversy involving Evelyn Hinckley, her husband Emmett, and certain of the Respondent's officials including President Tubbs and Treasurer Luckett, concerning Emmett Hinckley's asserted failure to pursue the grievance filed by toolcrib attendant Marlene Ferry, 3 Compare Brewery and Soft Drink Workers Local Union No. 163 (Sregmaier Brewing Company). 134 NLRB 99 (1961). at a time when Emmett Hinckley was the Respon- dent's president. The decision adopted by the Board in the prior proceeding shows that in April 1975 Tubbs told Hinckley "he was going to get" her out of the toolcrib; also in April, Tubbs told Evelyn that what her husband had done about the Ferry grievance was pretty rotten and he was going to get Ferry back in the crib and she, Hinckley, would be out; on approximately August 13, 1975, Tubbs told Evelyn Hinckley that the Respondent had signed off a grievance involving her because her husband had signed off Ferry's grievance; Respondent's steward, Milton, told Hinckley in November that it would not do any good to write a grievance, that it would be thrown out by the grievance committee, that the Respondent had not been helping her and had not been treating her fairly; in the first part of December 1975 Luckett told Evelyn Hinckley that Tubbs was going to get her out of the crib, that she was going to lose her job; and Tubbs repeatedly requested of the Employer's officials that Evelyn Hinckley's job had to be posted, and that since she had quit she had no right to her job and would have to be a new employee on the production line. Contrary to the Administrative Law Judge, we conclude that the Respondent's conduct in this case must be examined in light of its previous unlawful threats against the Charging Party as outlined above. In our view, and because we also find that the Respondent's treatment of the Charging Party departed from its past practice and was undertaken without lawful cause or justification,3 these threats clearly establish the Respondent's unlawful motive for its conduct in this proceeding. In this connection, we note that the record, contrary to the Administra- tive Law Judge's assessment, does not reflect "a plant practice" of requiring employees who have quit to be reemployed as new employees. Thus, it appears that employee Godsey was returned to her former job after quitting in 1973, albeit without seniority but with the same rate of pay, and the Union did not intervene. In 1974 employee Padgett was returned to his job with his seniority intact and with the same pay, subject to a 5-day suspension penalty. In the case of Padgett's return, then Chief Steward Tubbs interceded by grievance on Padgett's behalf. This is in marked contrast to Tubbs' treatment of the Charging Party herein. Nor can the Respondent successfully maintain that, under the collective-bargaining agreement between itself and the Employer, the Employer had prejudiced the right of other employees to bid on the job vacated by the Charging Party in December by 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequently restoring her to that position. Thus, under article XXIX, section 3, of the agreement, other employees would have had no right to bid on the toolcrib job during the Charging Party's proba- tionary period when she was assigned to the toolcrib job.4 On the basis of the foregoing and the entire record in this case, we find that the Respondent caused and attempted to cause the Employer to reduce the job status and seniority of Evelyn Hinckley, caused her layoff, and failed to grieve these adverse actions on the part of the Employer in retaliation for her husband Emmett Hinckley's actions while president of the Respondent, and because the Respondent was seeking to punish Evelyn Hinckley because of her support of her husband's policies while president of the Respondent, and that the Respondent thereby engaged in conduct violative of Section 8(b)(2) and 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing or attempting to cause the reduc- tion of job status and loss of seniority by Evelyn Hinckley on December 29, 1975; by causing or attempting to cause her layoff on February 9, 1976; and by failing to prosecute grievances on her behalf contesting these actions by the Employer, the Respondent engaged in unfair labor practices in violation of Section 8(b)(2) and 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent Union violated the Act by causing or attempting to cause the reduction of job status, loss of seniority, and layoff, and by failing to prosecute grievances on Evelyn Hinckley's behalf contesting these actions by the Employer, we shall require that the Respondent Union forthwith notify the Employer, in writing, that it has withdrawn all objections to the tool crib 4 In pertinent part, the agreement provides that the Company has the right to fill any open job with probationary employees and such right supersedes the right of employees to exercise their seniority in seeking job transfer. attendant job and seniority status of Evelyn Hinckley and that it will not refuse to prosecute grievances on behalf of such individual. We shall further order that the Respondent Union make Evelyn Hinckley whole for any loss of pay suffered because of the discrimination practiced against her by payment to her of a sum of money equal to that which she normally would have earned as wages from the date her seniority was reduced as of December 23, 1975, through February 9, 1976, and from the latter date as of which she was prematurely laid off because of her low seniority, less any earnings, if any. Backpay and interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).5 The Respondent Union shall not be liable for backpay accruing after 5 days from proper service upon Arrowhead Engineering Corp. of a written notice withdrawing all objections to the uncondition- al hiring and reemployment of Evelyn Hinckley as a tool crib attendant with restored seniority. Because the Respondent Union's conduct in the commission of the unfair labor practices found herein goes to the very heart of the Act, and because it may reasonably be anticipated from its past conduct that the Respondent Union may commit other violations in the future, we shall order the Respondent Union to cease and desist from infring- ing in any other manner upon the rights of employees as guaranteed by the Act. 6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Union, United Steelworkers of America, Local No. 8061, AFL-CIO, Elkhart, Indiana, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing, or attempting to cause, Arrowhead Engineering Corp. to discriminate against Evelyn Hinckley in violation of Section 8(a)(3) of the Act, by reduction of job status and loss of seniority, thus causing her layoff, and failing to prosecute grievanc- es on her behalf contesting these actions by the Employer. (b) In any other manner restraining or coercing Evelyn Hinckley or any other employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a 5 See, generally, Isis Plumbing a Heating Co., 138 NLRB 716 (1962). 8 N.LR.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (C.A. 4, 1941). 860 UNITED STEELWORKERS OF AMERICA, LOCAL 8061 labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify Arrowhead Engineering Corp., in writing, that the Respondent Union has withdrawn all objections to the hiring and employment of Evelyn Hinckley as a toolcrib attendant at her old rate and seniority, and request Arrowhead Engineer- ing Corp. to offer her immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to her seniority and other rights and privileges. (b) Make Evelyn Hinckley whole for any loss of pay suffered by reason of the Respondent Union's action in causing Arrowhead Engineering Corp. to discriminate against her in the manner set forth above in the section entitled "The Remedy." (c) Post at its offices, hiring halls, and meeting halls copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent Union's authorized repre- sentative, shall be posted by the Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the said Regional Director copies of the aforementioned notice for posting by Arrowhead Engineering Corp., if willing, at its place of business in Knox, Indiana, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by a representative of the Respondent Union, be forthwith returned to the Regional Director for posting, (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. ? 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 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 The law requires that a union which is properly designated as bargaining representative of an appro- priate unit of employees has an obligation to serve the interests of all employees in the bargaining unit "without hostility or discrimination toward any," and "to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." It is our intention to and we will represent all of the employees in the appropriate unit covered by our contract with Arrowhead Engineering Corp. as the law requires. WE WILL NOT cause, or attempt to cause, Arrowhead Engineering Corp. to discriminate against Evelyn Hinckley by reduction of her job status and loss of seniority, causing her layoff, and failing to prosecute grievances on her behalf contesting these actions by the Employer in violation of Section 8(a)(3) of the Act. WE WILL NOT, in any other manner, restrain or coerce Evelyn Hinckley or any employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. WE WILL notify Arrowhead Engineering Corp., in writing, that we have withdrawn all objections to the hiring and employment of Evelyn Hinckley as a toolcrib attendant and request Arrowhead Engineering Corp. to offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority and other rights and privileges. WE WILL make whole Evelyn Hinckley, plus interest, for any loss of pay suffered by reason of our action in causing Arrowhead Engineering Corp. to discriminate against her. UNITED STEELWORKERS OF AMERICA, LOCAL No. 8061, AFL-CIO DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This proceeding was heard in Knox, Indiana, on January 6, 861 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1977, upon a charge filed on April 12, 1976, and a complaint issued on November 2, 1976, alleging that Respondent violated Section 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act, as amended, by causing and attempting to cause the Employer to reduce the job status and seniority of Evelyn Hinckley, by causing her layoff, and by failing to grieve these adverse actions on the part of the Employer. Respondent's duly filed answer denied that any unfair labor practices were committed. After close of the hearing, briefs were filed by the General Counsel and the Respondent. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTION The Employer, Arrowhead Engineering, Corp., is an Indiana corporation with a facility located in Knox, Indiana, from which it is engaged in the manufacture, sale, and distribution of precision split steel pulleys, and related products. During the year preceding issuance of the complaint, a representative period, the Employer, in the course and conduct of said operations, purchased goods and materials valued in excess of $50,000, which were transported to said facility, directly from States other than the State of Indiana. The complaint alleges, the answer admits, and I find that the Employer is now, 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. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Respondent Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Has Respondent urged a substantial procedural ground for dismissal of the instant proceeding by virtue of the fact that the issues involved herein occurred prior to issuance of a complaint in an earlier case, growing out of the same subject matter, and where both cases were investigated by the General Counsel prior to litigation of the earlier case? 2. With respect to the merits, all issues are derivative to the fundamental question of whether Respondent violated Section 8(b)(1)(A) and 8(bX2) of the Act by successfully reversing the Employer's decision to restore Evelyn Hinckley to her former position at the same rate of pay, with continuous seniority, after Hinckley had quit her job. B. The Facts The undisputed facts are predicated essentially upon a stipulation made at the instant hearing and findings made in the prior case growing out of a running controversy between Evelyn Hinckley, her husband, and the Respon- dent Union during 1975-76. Thus Emmett Hinckley, the husband of the alleged discriminatee, Evelyn Hinckley, became president of Respondent in late 1974. In July 1974, the Employer, who recognized Respondent as representative of its production and maintenance employees, established a single toolcrib attendant position. Evelyn Hinckley successfully bid on that position. Subsequently, a similar position was estab- lished for each of the two remaining shifts. In 1975, the Employer elected to terminate the third shift, and Marlene Ferry, the toolcrib attendant thereon, was downgraded thereby to a production job on the second shift. On March 14, 1975, Ferry filed a grievance protesting her removal from the crib attendant job, asserting that on the basis of seniority she should have been allowed to bump one of the junior toolcrib attendants on other shifts with inferior seniority, including Evelyn Hinckley. The Company opposed that grievance on grounds that Ferry was not capable of continuing in that position. In April 1975, Emmett Hinckley, at the third step of the grievance procedure, acquiesced in the Company's position with respect to the Ferry grievance, and, accordingly, no further action was taken on behalf of Ferry by the Union. Obviously, this action by Emmett Hinckley removed potential jeopardy posed by the Ferry grievance to his wife's incumbency as a toolcrib attendant. Several officers of the Respondent reacted adversely to Emmett Hinckley's action with respect to the Ferry grievance, and their coercive reaction thereto was the subject matter of Case 25-CB-2521, the earlier proceeding. In that case, findings by Administrative Law Judge Bernard Ries were affirmed by the Board at 226 NLRB 403 (1976). Specifically, it was found therein that Respondent violated Section 8(b)(1)(A) of the Act by (1) a statement on the part of Vice President Tubbs to Evelyn Hinckley that Respondent's agents had not faithfully prosecuted a grievance on her behalf because of the manner in which Evelyn Hinckley's husband had performed his duties as president of the Respondent; (2) statements to Evelyn Hinckley attributed to Vice President Tubbs that her job might be affected by the fact that she had filed a complaint with the International Union's staff representative, Tobin; and (3) a threat on the part of Treasurer Luckett to "blackball" Emmett Hinckley be- cause his wife had filed charges with the Board. The facts pertaining to the instant complaint show that until December 1975, Evelyn Hinckley continued on the first shift, toolcrib job. Apparently, in November' Hinck- ley had been accused of either hiding or stealing parts by Foreman John Belork of the second shift. On the morning of December 18, Foreman Larry Loetz, Evelyn Hinckley's immediate superior on the first shift, indicated Belork had reported that she was either stealing parts or hiding parts from the other shift. Loetz asked Evelyn Hinckley to I All dates refer to 1975. unless otherwise indicated. 862 UNITED STEELWORKERS OF AMERICA, LOCAL 8061 account for this charge. She thereupon denied the accusa- tion and requested a meeting with the other toolcrib attendants so that the matter could be properly resolved. Loetz informed her that a meeting would be set up for 3 p.m. that day. Later, after learning that said meeting would not be held that day, Evelyn Hinckley punched out, informed the secretary to the president of the Company that she was quitting, and completed a quit slip, which she signed and inscribed as follows: "I will not take anymore Shit from John Belork." Evelyn Hinckley then returned to her work area, and informed Foremen Loetz and Belork that she was quitting. She then left the premises. Upon learning of the quit, Tubbs, who by then had succeeded Emmett Hinckley as president of Respondent Union, informed the plant superintendent that the tool crib attendant job vacated by Evelyn Hinckley's quit, "will have to go up for bid." In the meantime, Evelyn Hinckley apparently had second thoughts concerning her action of December 18, and arranged a meeting with the president of the Company to secure reemployment. On December 22, 1975, Evelyn and Emmett Hinckley met with Ron Richardson, president of the Company, and in consequence of that meeting, on December 23, she returned to her former position in the tool crib, with an unbroken seniority date and at the same rate of pay. No representative of the Union was present at the meeting with Richardson. 2 Upon learning of the restoration of Evelyn Hinckley, Tubbs telephoned the Employer's vice president, Harry Blatt, advising Blatt that since Hinckley quit her job, she had no right to the toolcrib position, but should be considered a new employee with all other incidents of probationary employment, including base rate, new senior- ity, and production work. Blatt reported the Union's position to Richardson. On December 29, the Union filed a written grievance, stating as follows: This grievance relates to Emmett Hinckley & Evelyn Hinckley negotiating Evelyn's job back with Ron Richardson. Nature of Grievance: The Company recognizes the Union as the sole and exclusive bargaining unit. Not individual employees negotiating for their self. Viola- tions of this action is grounds for charges to be placed with NLRB. And they will be. Settlement Requested in Grievance: This procedure be stopped now. Agreement Violation: Article 1, Section I and all articles and practices pertaining to said case. John Tubbs, President Also, on December 29, the Employer acquiesced in the Union's protest concerning the restoration of Evelyn Hinckley by formally notifying the Union as follows: 2 Emmett Hinckley no longer served in any official capacity with the Respondent at the time of the December 22 meeting. Evelyn Hinckley has already been classified as a new employee her seniority date is 12/23/75 clock number A185. On January 6, the Company responded to the formal grievance set forth above as follows: THE COMPANY AGREES THAT LOCAL 8061 OFFICIALS SHOULD BE PRESENT WHEN MATTERS OF LABOR RELATIONS/CONTRACT ARE DISCUSSED. THE PARTICULAR INSTANCE AROSE AS MUCH DUE TO EMMETT HINCKLEY'S LONG SERVICE AS A UNION OFFICER (EVEN THOUGH HE HAD RECENTLY RESIGNED) AS ANY OTHER REASON, BUT THE UNION'S REQUESTED REMEDY IS VALID, I.E., IT WILL CONTINUE TO BE COMPANY POLICY TO INVOLVE UNION REPRESENTATIVE'(S) IN CIRCUMSTANCES WHERE MANAGEMENT DISCUSSES MATTERS (OTHER THEN [SIC] THOSE OF A PERSONAL, NON-CONTRACTUAL NATURE) WITH HOURLY EMPLOYEES. When Evelyn Hinckley reported for work on December 29 she was informed that she was a new employee, with a seniority date as of December 23, 1975, and that she would be placed in a production job with a production rate. Hinckley subsequently reported to her production job, and continued to work therein until February 9, 1976. On the latter date, because of her low seniority, she was included in a general layoff. It does not appear that Hinckley made any request through the Union that her impaired status of December 1975 or layoff of February 9, 1976, be grieved. By virtue of the 8(bX)(2) and 8(bXIXA) allegations in the instance case, the General Counsel seeks a remedy for and claims that Respondent violated the Act by causing Hinckley's demotion to a production job on December 23, with new seniority and a lesser rate of pay, as well as the layoff of February 9 which stemmed directly from her impaired seniority status. C. Concluding Findings 1. The procedural issue Although my disposition of the merits makes it unneces- sary to reach this question, I note, in any event, that Respondent's claim that this case be dismissed for failure of the Board to eliminate duplicity of litigation by consolidating the instant charge with that in Case 25-CB- 2521 is unpersuasive. In this connection, it is true that the original charge in the earlier case was filed on February 10, 1976, the day after the layoff of Evelyn Hinckley and one which follows all events in issue in both cases. Thereafter, on March 31, 1976, a complaint issued on that charge. Later, on April 12, 1976, the instant unfair labor practice charge in Case 25-CB-2521-2 was filed, alleging that the Union "has attempted to force and has forced the Employer to deprive Evelyn Hinckley (sic) of her job classification and seniority status." In addition, on April 16, 1976, the original charge in Case 25-CB-2521 was 863 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended to include an 8(b)(2) allegation based on Hinckley's loss of "job classification and seniority status." 3 Thereafter, on May 4, 1976, the hearing on the pending complaint in Case 25-CB-2521 was conducted before Administrative Law Judge Bernard Ries. In the following week, on May 10, 1976, the charges in the instant case were dismissed by the Regional Director for Region 25. On May 21, 1976, Hinckley appealed the Regional Director's dismissal of the charge in the instant case. On June 22, 1976, Administrative Law Judge Ries issued his decision in Case 25-CB-2521. Thereafter, on October 12, 1976, the Regional Director's dismissal of the charges in Case 25- CB-2521-2 was reversed by the General Counsel in Washington. On October 14, 1976, a panel of the National Labor Relations Board issued its Decision and Order in Case 25-CB-2521, affirming the 8(b)(1)(A) violations found by Administrative Law Judge Ries. Shortly after the Board's action in that case, counsel for the General Counsel, on November 1, 1976, filed a motion with the Board to reopen that proceeding and remand it to Administrative Law Judge Ries for consolidation with Case 25-CB-2521-2 in order "to avoid a multiplicity of actions and litigate all alleged violations involving a single respondent into a single proceeding .... " By order dated December 22, 1976, the Board denied said motion. In the interim, on November 2, 1976, a complaint issued in the instant case. In the circumstances, there is no merit in Respondent's assertion that the previous litigation in Case 25-CB-2521 bars the General Counsel from litigating matters which arose prior to the issuance of the complaint in that case. It is true, as the Respondent urges, that the Board recognizes that fairness and sound administrative practice requires consolidation of all pending charges into a single com- plaint, and that "wherever practical" litigation should be limited to a single hearing on all outstanding violations of the Act involving the same respondent.4 Nor can there be any quarrel with Respondent's factual assertion that the subject matter of the instant complaint was investigated and known by counsel for the General Counsel before the complaint in the earlier case issued. However, this is not a case where the failure to litigate all alleged violations against the Respondent in a single proceeding was attributable to culpable conduct on the part of the General Counsel or his agents in quest of an advantage in the litigation process, nor does it involve unreasonable action by those with discretion over the processing of complaints. The dual litigation with respect to the Hinckley matter stemmed directly from the obviously honest, and possibly correct, exercise of responsibility by a Regional Director to determine whether charges are meritorious, to issue a complaint with respect to those that are, and to dismiss those that are not. Here, the Regional Director for Region 25, after investigation, was of the view that the charge in Case 25-CB-2521-2 did not warrant issuance of a complaint, and, accordingly, it was dismissed. Later, however, that charge was revitalized in consequence of the 3 The pending complaint, however, was not amended to include the new subject matter. 4 See. e.g., Peyton Packing Company, Inc., 129 NLRB 1358, 1360 (1961). 1 See Peyton Packing Co.. supra. Charging Party's appeal to the General Counsel in Washington. When that appeal was sustained, counsel for the General Counsel sought to curb any prejudice upon Respondent by motion to the Board that the earlier case be reopened to facilitate consolidation of the two complaints. As should be obvious from the foregoing, this is not a case where duplicate litigation derives from action by the General Counsel through which he seeks to relitigate issues tried previously but disposed of adversely to his cause,5 nor one in which the General Counsel has exercised discretion to issue a second complaint where the subject matter of the new litigation has been fully remedied by settlement and compliance therewith under a previously issued com- plaint.6 To apply the remedy endorsed by the Board in such cases and dismiss the instant complaint would condone precedent, which by indirection would place in jeopardy the review procedures available to charging parties against adverse determinations on charges by Regional Directors pursuant to Section 102.19 of the Rules and Regulations of the National Labor Relations Board. From my perception of the overall problem, the dual litigation could only have been avoided in this instance were the Charging Party to have included all allegations in a single charge. However, under existing practices, nothing in Board rules or procedural policy imposes a duty upon a charging party to act in such fashion, and, indeed, the use of multiple charges against a single respondent, though growing out of the same fact pattern, is hardly unfamiliar. Absent Board policy imposing restraints on such practices, it would seem totally inappropriate to dismiss a cause solely because dual litigation results from a charging party's timely assertion of internal review procedures.7 Accordingly, I find that Respondent's motion to dismiss is lacking in merit and it shall be denied insofar as predicated upon the alleged improper duplication of litigation. 2. The merits The 8(b)(1XA) and 8(bX2) allegations under the instant complaint are unsubstantiated by the record. The sole factor favoring the General Counsel is the animus and hostility manifested by Tubbs and Luckett against the Hinckleys. Otherwise the facts dispel any notion that Evelyn Hinckley lost her seniority, former position, and old rate of pay on December 29, 1975, and indeed was laid off on February 9, 1976, by virtue of anything other than legitimate cause. The adversities she sustained in these respects find their origin in her own decision to quit her job on December 18. Insofar as this record discloses, the Union had no provocative role with respect to this resignation. Evidence which is clear beyond any fair dispute establishes that under the Employer's historic practice, and the terms of the governing collective-bargaining agreement, seniority is forfeited upon termination, including a quit, and any employee so affected, upon rehire, is assigned a new seniority date.8 a See Jackson Building and Constructrion Trades Council (Moore 4 McGehee Construction Co., Inc.), 172 NLRB 1352 (1968). 7 Cf. Jefferson Chemical Company, Inc., 200 NLRB 992 (1972). 8 The General Counsel has failed to establish a single exception to the 864 UNITED STEELWORKERS OF AMERICA, LOCAL 8061 Thus, article V, section 6, of the collective-bargaining agreement in effect at all times material to this proceeding, provides that "seniority shall be considered lost" by, inter alia "termination of employment." Furthermore, article VIII thereof, entitled "Job Preference," affords unit employees the right to exercise their seniority with respect to "an open position," which, in turn, is defined as one ".. left open as a result of ... the termination of employment by the employee." As exclusive bargaining agent, the Union had a duty to police the Employer's compliance with all conditions of work founded upon contract or practice. Clearly, the Company, in initially restoring Hinckley, acted in violation of the practice and its contractual commitments to the Union. This breach diluted the rightfully held seniority advantage gained by rank-and-file employees through Hinckley's own decision to quit. The Company had prejudiced the right of these employees to bid on the higher rated job vacated by Hinckley on December 18, and improperly accorded her a seniority preference in the event of layoff. Upon confronta- tion with such facts, the union officials had a duty to vindicate the interest of represented employees generally with respect to job bidding opportunities and seniority. Indeed, the record, through the General Counsel's own witness, shows that at least one unit employee protested the unfairness in the special treatment the Employer initially accorded Evelyn Hinckley. Thus, Beverly Godsey testified that, after a period of prior employment with Respondent, she returned after having quit in August 1973, and was given a new seniority date. When she learned of Hinckley's restoration with full seniority, she informed Tubbs that if the Employer treated Hinckley's seniority as continuous, she would file a grievance seeking restoration of her earlier seniority date. That grievance was averted, however, when Tubbs, as he indicated he would do earlier to Godsey, prevailed upon Richardson to conform Hinckley's restora- tion with plant practices. The Company agreed, and it is this reversal in the treatment of Hinckley that furnishes the predicate for the instant complaint.9 The fact that Evelyn Hinckley was an object of resentment by certain union officials, and that they threatened her with reprisals in violation of the Act, serves as no basis for Board intervention to except her from operation of uniformily applied rules founded upon the collective-bargaining agreement, the practice thereunder, above practice. Contrary to his view, the fact that the Union processed a grievance in August 1974 on behalf of employee James Padgett reflects no inconsistency in the Union's position. At odds there was a dispute between the Union and the Employer as to whether Padgett in fact had quit his job. Padgett, unlike Evelyn Hinckley, had not signed a quit slip, and it was the Union's steadfast position that he had been constructively discharged. Unlike that grievance, there is no evidence in this case that Tubbs, or any other union functionary, was apprised by Evelyn Hinckley that she had not in fact quit, and, indeed, the evidence clearly establishes that for reasons unrelated to any actions by the Union she did quit. The fact that the Padgett grievance was resolved favorably to the Union, with full reinstatement of his seniority and other benefits, does not reflect any disparate treatment or conduct on the part of the Union which in any sense provided a precedent for its posture with respect to the materially dissimilar issues concerning Evelyn Hinckley. 9 It is noted that the 1973 reinstatement of Godsey preceded the effective date of the only collective-bargaining agreement in evidence in this case. Although she was restored at her prior rate of pay, this was a "red circle and sound industrial relations. Hinckley's status as a new employee was the direct, legitimate consequence of her voluntary quit, and the effort by Respondent Union to protect the interest of other represented employees by assuring that the Employer adhere to its obligations furnished no basis for an actionable unfair labor practice. Accordingly, I find that the Respondent, by causing the Employer to reverse itself on December 29 and thereby to reduce the job status of Evelyn Hinckley, did not violate Section 8(bX2) and 8(bX)(IXA) of the Act. From this, it follows that the layoff of Hinckley on February 9 was a direct consequence of the legitimate reduction in her seniority, and, accordingly, I shall dismiss the 8(bX2) and 8(b)(lXA) allegations in that respect. Finally, as the Employer's treatment of Hinckley was caused by legitimate action on the part of the Union, the allegation that the Union violated Section 8(bX2) and 8(bXIXA) by failure to initiate some form of grievance to undo on behalf of Hinckley what it rightfully did on behalf of the entire work force is plainly unsubstantiated. Accordingly, I shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW I. The Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(bX2) and 8(b)(1XA) of the Act by causing or attempting to cause the reduction of job status and loss of seniority by Evelyn Hinckley on December 29, 1975, or by causing or attempting to cause her layoff on February 9, 1976, or by failing to prosecute grievances on her behalf contesting these actions by the Employer. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 'o IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed in its entirety. rate," and one continuously paid by the Employer though higher than those negotiated by the Union. Staff Representative Tobin credibly testified that in negotiating the 1973-76 contract, the Union protested special deals concerning red circle rates made between the Company and certain individuals who had quit and come back to work, demanding that the Company abandon this practice. In the course of the negotiations, the Company agreed to "grandfather" those presently enjoying red circle rates. eventually to phase them out, and to adhere strictly to wage standards set forth in the contract as to all others. Accordingly, I find that the Employer's continued application of the red circle rate upon rehire of Godsey preceded the agreement described by Tobin, and involved a practice since eliminated through negotiations. to 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. 865