Manitowoc Engineering Co

MANITOWOC ENGINEERING CO 915 Manitowoc Engineering Co and Clipper City Lodge No 516, District 10, International Association of Machinists and Aerospace Workers, AFL- CIO Clipper City Lodge No 516, District 10, Internation at Association of Machinists and Aerospace Workers, AFL-CIO and Eugene L Ruppelt Cases 30-CA-9412 and 30-CB-2523 November 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, CRACRAFT AND HIGGINS On a charge filed in Case 30-CB-2523 on June 24 1986 by Eugene L Ruppelt the General Counsel for the National Labor Relations Board issued a complaint dated December 10 1986 against Clipper City Lodge No 516 District 10 International Association of Machinists and Aero space Workers AFL-CIO (the Union) alleging that the Union had violated Section 8(b)(1)(A) and (2) of the Act On a charge and amended charge filed by the Union on December 4 1986 and Janu ary 20, 1987 respectively the General Counsel issued a complaint dated January 8 and amend ment to complaint dated January 30 1987 against Manitowoc Engineering Co (the Employer) alleg ing that the Employer had violated Section 8(a)(1) and (3) of the Act By order dated February 3 1987 the General Counsel consolidated the two cases The Union and the Employer filed timely answers to the complaints denying that they had engaged in unfair labor practices and offering of firmative defenses On July 6 1987 the General Counsel Ruppelt the Union and the Employer filed with the Board a stipulation of facts and motion to transfer pro ceeding to the Board The parties stated that the stipulation and attached exhibits constituted the ex clusive facts and entire record in the proceeding and that they waived a hearing and decision by an administrative law judge On November 2 1987 the Board approved the stipulation and transferred the proceeding to the Board for issuance of a deci sion and order Thereafter the General Counsel, the Employer and the Union filed briefs On the entire record and the briefs the Board makes the following FINDINGS OF FACT I JURISDICTION The Employer, a Wisconsin corporation is en gaged in manufacturing lift cranes excavators and other equipment at its facility in Manitowoc Wis consin During the calendar year ending December 31 1985 a representative period the Employer in the conduct of its operations sold and shipped products valued in excess of $50 000 from its Man itowoc facility directly to points located outside the State of Wisconsin We find that the Employer is an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Facts The Union has represented certain of the Em ployer s employees since about 1942 The collec tive bargaining agreement in effect at the time of the alleged unfair labor practices contained in its seniority provisions (art V) a section (sec 17) that dealt with the seniority of an employee who has been transferred or promoted outside the unit his right to return to the unit and his obligation to maintain union membership Article V section 17 of the collective bargaining agreement effective November 1 1984 through October 31 1987 reads SECTION 17 RETURN TO BARGAIN ING UNIT-SENIORITY Employees who were previously covered by the Agreement and who are transferred or promoted to positions outside the bargaining unit shall retain their accrued seniority in the department they vacated and shall not accrue seniority after November 1 1970 Employees who are covered by this Agree ment and who are transferred or promoted to positions outside the bargaining unit shall retain their seniority to the date of transfer or promotion out of the unit and shall continue to accrue their seniority for an additional six (6) months only An employee covered by the above provi sions will be given the right to return to the bargaining unit unless good cause is shown and provided Further he shall maintain mem bership in the Union or obtain a withdrawal card in accord with the provision of the Union s Constitution A supplementary seniority list will be estab lished for persons who have been excluded from the bargaining unit The union constitution referred to in article V section 17 provides that a withdrawal card may be 291 NLRB No 122 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD issued to certain members with the approval of the local lodge in which membership is held 1 Eugene L Ruppelt was employed in the bargain ing unit from 1942 until September 1972 when he left the unit to take the supervisory position of foreman At the time he was promoted Ruppelt re quested a withdrawal card from the Union His ap plication for a withdrawal card was considered at a membership meeting of the local lodge on October 26 1972 The membership voted to deny Ruppelt a card on the recommendation of the shop commit tee chairman who had previously been involved in an incident with Ruppelt when Ruppelt was a lead man in the unit Ruppelt appealed the local lodge s action to the directing business representative who replied that he had no authority to interfere with affairs of the local union Ruppelt did not thereaf ter maintain union membership by tendering dues After Ruppelt became a foreman his name was included on the Employers periodic seniority ros ters that listed individuals who were formerly in the bargaining unit but were working outside the unit on the date of the listing In late December 1985 the Employer removed Ruppelt from the foreman s job and on January 3 1986 2 transferred him back to the bargaining unit Within a few days the Union raised the issue of Ruppelt s seniority with the Employer informing management that Ruppelt had not obtained a with drawal card did not have seniority and could not go to work in the assembly department The Em i Art I sec 18 of the IAM constitution effective from April 1 1970 through at least the end of 1972 reads ployer had several discussions with the Union ex amined union documents concerning the denial of a withdrawal card to Ruppelt and concurred with the Union s position It decided that putting Rup pelt back to work in the unit was an error On Jan uary 14 the Employer discussed the situation with Ruppelt and laid him off After further manage ment consideration however the Employer re turned Ruppelt to the unit on April 11 About April 15 the Union filed a grievance claiming that the Employer had violated article V and other relevant provisions of the collective bar gaining agreement by recalling Ruppelt to a unit position and awarding him full seniority to the det riment of the seniority rights of bargaining unit em ployees The grievance was presented to an arbitrator under an expedited procedure and an arbitration hearing was held on May 8 3 The arbitrator issued an award dated June 2 in which the arbitrator de cided as follows Eugene Ruppelt did not retain his right to return to the bargaining unit pursuant to the provisions of Article V Section 17 4 The Employer then laid off Ruppelt on July 11 5 Rup pelt did not return to work for the Employer and retired about April 30 1987 B Issues The stipulation sets out three issues for decision (1) whether deferral to the arbitration award is ap propriate (2) if not whether the Respondents have violated the Act as alleged in the complaints and (3) whether the complaints are time barred under Section 10(b) of the Act Honorary Withdrawal Cards Sec 18 Any member who leaves the trade because of illness or obtains employment outside the trade or industry or obtains a super visory position above the rank of working foreman or because of circumstances over which the member has no control is compelled as a condition of employment to join another labor organization or enters the Armed Forces of the United States or Canada and upon complying with the conditions hereinafter set forth may be issued an honorary withdrawal card by and with the approval of the L L in which membership is held Application for withdrawal card accompanied by a fee of 25 [cents] shall be made to the F S or S T of the L L who after the application has been approved by the L L shall issue same bearing the L L seal on a form designed and supplied by the G L No application will be granted until all fines dues and special levies charged against the member have been paid in full to date of application Persons discontinuing their membership by accepting withdrawal cards will not be entitled to any benefits or permitted to attend meet ings or participate in any of the business of the I A M however those persons who enter the Armed Forces of the United States or Canada will receive credit for time spent in such service toward Veteran Badges should they resume membership in the I A M upon their discharge They shall not violate any of the laws or decisions of the G L or L L under penalty of having their withdrawal cards cancelled The ]AM constitution that became effective January 1 1985 contains a similar provision 2 All dates hereafter refer to 1986 unless otherwise stated C Contentions of the Parties With respect to the deferral issue the General Counsel argues that deferral to the arbitration award is not appropriate because the award is clearly repugnant to the Act and does not comply with the requirements for deferral set forth in Ohn a The transcript of the arbitration hearing the exhibits the briefs pre sented and the arbitration award are part of the stipulated record in this proceeding The arbitrator interpreted the collective bargaining agreement as fol lows The language contained in Article V Section 17 is clear and unam biguous regarding the requirements which must be met by a bargain ing unit employe promoted out of the bargaining unit if that employe wishes to retain seniority in the bargaining unit The employe either obtains a withdrawal card or maintains membership in the Union Ruppelt was denied a withdrawal card in 1972 and he failed to maintain membership in the Union Under the clear and unambig uous language of the contract he lost his bargaining unit seniority On August 28 the Employer initiated a proceeding in the U S Dis tract Court for the Eastern District of Wisconsin (Civil Action 86-C- 0937) to vacate or modify the arbitration award On January 21 1987 the court ordered the case held in abeyance pending the outcome of this pro ceeding before the Board MANITOWOC ENGINEERING CO Corp 268 NLRB 573 (1984) Spielberg Mfg Co 112 NLRB 1080 (1955) and Raytheon Co 140 NLRB 883 (1963) On the merits the General Counsel contends that article V section 17 is ille gal because it gives union members an advantage over financial core employees encourages union membership and discriminates against non members Concerning the application of Section 10(b) the General Counsel takes the position that the complaint allegations with the exception of the alleged unlawful layoff of Ruppelt on January 14 in Case 30-CA-9412 are not time barred and that the Union s argument that the violation involved in Case 30-CB-2523 occurred in 1972 is without merit The Employer asserts that article V section 17 is not illegal in light of the Boards decision in Brown & Williamson Tobacco Co 227 NLRB 2005 (1977) In the alternative it argues that the Em ployer did not participate or acquiesce to the Union s denial of a withdrawal card to Ruppelt and should be only held secondarily liable for any backpay the Board may award to Ruppelt It fur ther requests the Board to leave the provisions of article V section 17, intact except for conditions the Board may find objectionable The Employer does not discuss the 10(b) issue and the deferral issue but points out that it initiated court proceed ings to vacate or modify the arbitration award The Union contends that the complaints in volved are time barred under Section 10(b) and should be dismissed In support of its contention it cites Postal Service Marina Center 271 NLRB 397 (1984) The Union also asserts that deferral to the arbitration award is appropriate under Olin Corp supra With respect to the merits of the 8(b)(2) alle gation the Union argues that it did not force the Employer to do anything but merely sought com pliance with the collective bargaining agreement D Discussion and Conclusions 1 The deferral issue In the following section we find that article V section 17 is unlawful on its face Consequently under Ohn Corp supra we deny the Unions re quest that we defer to the arbitration award be cause it is not susceptible to an interpretation con sistent with the Act 2 The merits of the complaint allegations The issue basic to determining the complaint al legations concerns the lawfulness of article V sec tion 17 under Section 8(a)(3) and Section 8(b)(2) of the Act This is not an entirely new issue for the Board Previous cases have presented similar con tract provisions providing for return of employees 917 with seniority to a bargaining unit after holding nonunit positions dependent on satisfying some fi nancial obligation to the bargaining unit representa tive Board Members have disagreed as to the proper resolution of this troubling and recurring issue In Namm s Inc 102 NLRB 466 (1953) the Board considered a contract clause that provided for the transfer of certain individuals from outside the unit into the bargaining unit with seniority credit for service in nonunit jobs on payment of a specified fee to the bargaining unit representative A Board majority found the clause did not violate Section 8(a)(3) or Section 8(b)(2) The majority emphasized that the clause was negotiated in good faith and was motivated by legitimate business con siderations without any desire to discriminate on the basis of union membership or sympathy The majority saw no discrimination in requiring individ uals outside the unit to pay a fee for benefits to which the individuals had no statutory or contrac tual right and found no reason to assume that the bargaining representative acted beyond its permissi ble discretion in adopting a provision that might adversely affect the relative seniority of some unit employees One Board Member dissented He viewed the clause as establishing a discriminatory employment condition and favoring nonunit em ployees willing to pay a price to the union repre sentative He did not think the discrimination was excused because it resulted from good faith negoti ations to solve a difficult personnel problem Later in the Kaiser Steels and Columbia Steel7 cases the Board examined contract clauses that provided that a unit employee who became a su pervisor might return to a unit job with seniority if, while a supervisor he made payments to the unit bargaining representative equivalent to monthly union dues In each case a divided Board found the contract arrangement illegal In Kaiser Steel the Board majority overruling Namm s reasoned that an individual in a supervise ry position is under no legal obligation to make payment to a labor organization as a condition of employment Therefore he cannot be required to satisfy a membership obligation covering the period of supervisory employment as a condition of reem ployment in the unit One Board Member dissent ed, relying primarily on the arguments set out by the majority in Namm s In Columbia Steel the Board majority concluded that the contract provision dealt with seniority rights (a condition of employment) in a discrimma Kaiser Steel Corp 125 NLRB 1039 (1959) 7 Steelworkers Local 1070 (Columbia Steel) 171 NLRB 945 (1968) 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tory way that encourages union membership by making the relative seniority status of former su pervisors applying to return to the bargaining unit dependent on payment of the equivalent of union dues Furthermore the provision conditioned se niority rights of returning employees on payment of dues during a time when they were outside the bargaining unit Two dissenting Board Members saw the issue posed to be whether a union can re quire transferred individuals to pay a fee in order to obtain seniority credit to which they would not otherwise be entitled The dissenters characterized the dues equivalency payment as a reasonable serv ice fee for a valuable option which provided em ployment insurance to supervisors an employer in ducement to employees the employer wanted to promote and a benefit to unit employees whose representation costs would be shared by nonunit in dividuals More recently in Brown & Williamson Tobacco Co 227 NLRB 2005 (1977) the Board considered the legality of a contract provision that permitted a unit employee who transferred to a nonunit posi tion to elect to retain and accrue seniority in the unit by continuing to pay dues to the unit repre sentative and in the event of a layoff to return to the unit with full seniority A Board majority two Members dissenting overruled Kaiser Steel and Co lumbia Steel and found that enforcement of the provision did not constitute unlawful discrimination within the meaning of Section 8(a)(3) The majority stated it was not inclined to disturb collective bar gaining compromises that secure benefits for all parties and compared the dues payment required to a service fee The dissenting Members took the position that the contract provision openly dis cnminated between employees applying for reentry into the unit on the basis of union membership and was not lawful merely because it benefited employ er and union and was the product of their apparent good faith bargaining Under the dissenting pose tion the contract encouraged individuals to main tarn union membership when a union security pro vision did not require it and granted valuable se nionty benefits to nonunit employees to the detn ment of unit employees We have carefully reviewed these earlier Board cases and weighed the opposing arguments they offer as to the legality of provisions of a collective bargaining agreement such as article V section 17 in this case 8 In our judgment for reasons set out 8 Although the contract clauses in the various cases differ in wording we see no substantial difference in their meaning All provide seniority benefits to an employee who returns to the bargaining unit after a period of nonunit employment provided the employee while outside the unit assumed some obligation to the unit representative an obligation various ly described as union membership payment of dues payment of the below article V section 17 is contrary to Section 8(a)(3) of the Act and we overrule Brown & Wil ham con Tobacco Co We realize from the earlier cases that the ques tion of how to preserve return rights for employees transferred or promoted from a bargaining unit has been a problem in collective bargaining and that the contract provisions presented to the Board for scrutiny represent an attempt by the parties to re solve this not uncommon problem Like the Board majority in the Brown & Williamson case we are disinclined to intrude on the collective bargaining process and upset contract arrangements reached after good faith bargaining and compromise We respect the right of parties to the bargaining rela tionship to determine their own contract terms on the basis of their needs It is the Board s responsi bility however on an appropriate complaint to determine whether the contract terms they negoti ate are consistent with the requirements of the Act Where the parties resolve problems in their rela tionship by adopting contract terms contrary to the Act the unlawfulness is not privileged by good faith or practical considerations and the Board must recognize the unlawfulness and seek to remedy it 9 Our analysis of article V section 17 in the light of Section 8(a)(3) of the Act convinces us that the provision violates the express prohibitions of that section and conflicts with the Act s underlying policy of insulat[ing] employees jobs from union membership considerations 10 Section 8(a)(3) prohibits discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization Provisos to the section permit limited union security agreements Application of the sec tion to the specific contract clause at issue requires us to determine first whether the clause treats em ployees differently with respect to an employment condition on the basis of union membership and second, whether that different treatment encour ages union membership 11 If the answer to both equivalent of dues or payment of a fee We also see no substantial differ ence in the contract provisions whether they cover employees promoted to supervisory positions or employees transferred to nonunit positions where they remain statutory employees because a former supervisor re turning to the unit at the end of supervisory employment is an employee within the meaning of Sec 2(3) of the Act Columbia Steel supra 171 NLRB at 946 8 See e g New York Shipping Assn. v FMC 854 F 2d 1338 1373 (D C Cir 1988) It is not the national labor policy to allow otherwise unlaw ful activity merely because an employer and a union have agreed to it in mandatory collective bargaining 10 Radio Officers v NLRB 347 U S 17 40 (1954) i i If the inherent tendency of the contract provision is to encourage union membership specific intent to encourage need not be proved Id at 42-45 MANITOWOC ENGINEERING CO 919 questions is yes we must then determine whether the differential treatment that tends to encourage union activity is justified by the policies of the Act Electrical Workers Local 1212 (WPIX Inc) 288 NLRB 374 376 (1988) Article V section 17 deals with a condition of employment-seniority 12-and establishes how em ployees returning to the bargaining unit after a period of nonunit employment may acquire senion ty rights It permits a returning employee to ac quire those rights provided he has fulfilled an obli gation to the Union during his nonunit employment and specifies two ways to satisfy the obligation by maintaining union membership with the attendant financial liability or by obtaining a withdrawal card in accord with conditions in the Union s constitu tion The provision consequently treats employees returning to the unit in a different way with re spect to seniority, giving some employees valuable seniority credits and withholding the credits from others In making the grant or denial of such an ad vantageous employment condition depend on an employee s fulfilling a union obligation the provi sion clearly and inherently encourages individuals to participate in a union activity-the payment of union dues while they are not being represented by the Union-that they otherwise would not be in clined let alone required to engage in 13 12 See Ford Motor Co P Huffman 345 U S 330 337 (1953) is In this respect the contract provision here is distinguishable from the one found to be lawful in Electrical Workers Local 1212 supra Under that provision an employee could leave the unit for up to 2 years to work for the union and continue to accrue seniority for layoff purposes throughout the leave period leaves of absence for other reasons and ac crual of seniority for layoff purposes during such leaves were limited to 6 months The Board found that although the provision distinguished among employees on leave on the basis of union activities it did not en courage participation in the activities but rather removed a condition (in ability to accrue seniority) that would have discouraged employees from taking part in those activities Id at 376 The provision in question in this case by contrast removes no impediment to an individuals payment of union dues while he is serving as a foreman instead it encourages him to pay dues when otherwise he would have little incentive to do so The Union s constitution provides that under certain circumstances a member may be issued a withdrawal card and the facts of this case demonstrate that the Union apparently retains substantial discretion in de cidmg whether to grant a member s application for such a card There can be no doubt that the effect of the contractual arrangement is to en courage an individual during his tenure as a unit employee to stay in the Union s good graces lest his application for a withdrawal card be denied as it was in Ruppelt s case For without a withdrawal card an employee must undertake a financial obligation to the Union if he is to obtain valu able seniority rights Employers and unions can of course lawfully continue to agree to contract clauses that permit employees who transfer out of the unit to retain and/or accrue seniority It is obviously beneficial to a collective bargaining representative in representing the employees in an appropriate unit to know how many individuals may in the future claim unit seniority and how much seniority each can potentially claim We see nothing im proper in the parties to a collective bargaining agreement including a provision requiring notice to the union when an individual wishes to re ceive the benefits of such a seniority provision Thus the parties can agree to a nondiscriminatory requirement that unit employees in some form register tneir desire to retain and/or accrue seniority while not working in the unit Obviously any contract clause requiring notification to the union cannot permit the union to reject such notification Having found that the contract provision differ entiates among individuals on the basis of fulfill ment of a union obligation and that the differentia tion encourages individuals to fulfill that obligation we must determine whether that disparate treat ment is justified by the policies of the Act We find that it is not The provision that an individual may retain his accrued seniority while working as fore man by obtaining a withdrawal card or by continu ing to pay union dues is in no sense intended to nor does it further the effective administration of bargaining agreements cf Dairylea Cooperative Inc 219 NLRB 656 (1975) enfd sub nom NLRB v Teamsters Local 338 531 F 2d 1162 (2d Cir 1976) (superseniority for shop stewards for pur poses of layoff and recall) It is simply a means by which the Union is allowed to collect dues from individuals it does not represent in exchange for permitting those individuals to retain seniority they have already earned against the day they may have to seek reemployment in the unit 14 Furthermore we find that article V section 17 is not privileged by the provisos to Section 8(a)(3) Indeed consideration of cases construing the scope of the provisos further supports our view that the contract provision is unlawful Thus it is well es tablished that an employee may not be discriminat ed against because of his failure to pay union dues that had accrued during periods when there was no contractual obligation to maintain membership as a condition of employment Painters Local 277 (Webb New Jersey) 278 NLRB 169 171 (1986) Carolina Drywall Co 204 NLRB 1091 1094-1095 (1973) Under article V section 17 however Ruppelt was denied reemployment precisely because he failed to pay union dues that had accrued while he was a supervisor and therefore under no contractual ob ligation to maintain membership as a condition of employment Furthermore in Radio Officers supra 347 U S at 41-42 the Supreme Court stated that under a union security clause that complies with the requirements of the provisos to Section 8(a)(3) an employer can discharge an employee for non Member Cracraft agrees that the contract provision here can be distin guished from the one found lawful in Electrical Workers Local 1212 in which she did not participate Member Cracraft thus finds it unnecessary to pass on the question of whether Electrical Workers Local 1212 was cor rectly decided ' We disagree with the majority in Brown & Williamson that requiring employees to be union members and assume financial obligations to the union in order to secure unit seniority rights is the equivalent of charging employees a fee for a union s administrative services in handling job re ferrals from a hiring hall (see J J Hagerty Inc 153 NLRB 1375 (1965) enfd sub nom NLRB Y Operating Engineers Local 138 385 F 2d 874 (2d Cir 1967)) or processing welfare and retirement benefits due retirees or terminated employees covered by a unit plan (see Coal Producers Assn of Illinois 165 NLRB 337 (1967)) Here payments required by art v sec 17 were to be made at a time when the Union was not performing any services for the individuals outside the bargaining unit 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD membership in a union but [n]o other discnmina tion aimed at encouraging employees to join retain membership or stay in good standing in a union is condoned Yet article V section 17 purports to sanction just such other discrimination namely denial of seniority and reemployment Accordingly for all the above reasons we con elude that by maintaining article V section 17 and applying it to lay off Ruppelt the Employer violat ed Section 8(a)(3) and (1) and by maintaining arti cle V section 17 and causing the Employer to lay off Ruppelt pursuant to the provision the Union violated Section 8(b)(2) and (1)(A) of the Act 3 The 10(b) issue We conclude that the violations we are finding are not time barred and we deny the Union s re quest that the complaints be dismissed on that ground We find that the Employer violated the Act by maintaining and applying article V section 17 of the collective bargaining agreement since 6 months before the original charge was filed against the Employer on December 4 1986 and by laying off Ruppelt on July 11 1986 15 We do not find that the Employer violated the Act by laying off Rup pelt on January 14 1986 as that layoff occurred outside the 10(b) period 16 We find that the Union violated the Act by maintaining and applying article V section 17 of the collective bargaining agreement since 6 months before the charge was filed against the Union on June 24 and by causing the layoff of Ruppelt on January 14 and July 11 1986 dates within the 10(b) period 17 We note the Unions contention that Ruppelt lost his seniority in 1972 when the Union denied him a withdrawal card and that this conduct is long barred by Section 10(b) The corn plaint against the Union however does not allege the denial of a withdrawal card to Ruppelt as an unfair labor practice and we find no violation based on the denial of a card to Ruppelt Thus the Union s reliance on Postal Service Marina Center 271 NLRB 397 (1984) is misplaced because the unlawful act in this case is not the denial of a withdrawal card to Ruppelt in 1972 but the Union s causing the Employer to lay off Ruppelt in 1986 on the basis of article V section 17 a provi 16 An amended charge filed January 20 1987 added an 8(a)(3) allega tion without changing the substance of the original charge alleging only an 8(a)(1) violation 16 The General Counsel concedes that the January 14 layoff is outside the statutory period and that the complaint in Case 30-CA-9412 should be amended 11 We find it unnecessary to consider whether the Union violated the Act by attempting to cause the Employer to lay off Ruppelt in April as the General Counsel suggests because finding that violation would not add to the remedy lion that is itself unlawful 18 In Postal Service Marina Center the Board declared that in deter mining when the period for filing a charge under Section 10(b) has expired it will focus on the date of an alleged unlawful act rather than the date its consequences become effective provided a final and unequivocal adverse employment decision is made and communicated to the employee 19 In this case no final adverse decision or action was taken with respect to Ruppelt s employment until after his return to the unit in 1986 From 1972 until he was terminated as a foreman in 1985 Ruppelt s name was carved on the Employers seniority list showing his seniority as of January 23 1942 CONCLUSIONS OF LAW 1 By maintaining and applying article V section 17 of the collective bargaining agreement and by laying off Eugene L Ruppelt on July 11 1986 the Employer has engaged in unfair labor practices of fecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act 2 By maintaining and applying article V section 17 of the collective bargaining agreement and by causing the Employer to lay off Eugene L Rup pelt on January 14 and July 11 1986 the Union has engaged in unfair labor practices affecting corn merce within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act REMEDY Having found that the Respondents have en gaged in certain unfair labor practices we shall order them to cease and desist and to take certain affirmative action designed to effectuate the pole cies of the Act 20 We have found that the Respondents maintained and applied a provision of the collective bargaining agreement so as to unlawfully discriminate on the basis of union membership and we shall order them to cease maintaining and applying the provi sion in this manner We have also found that the Employer unlawful ly laid off Eugene L Ruppelt on July 11 1986 and that the Union unlawfully caused the Employer to lay off Ruppelt on January 14 and July 11 1986 Therefore we shall order the Employer to offer Ruppelt immediate and full reinstatement to his former unit job or if that job no longer exists to a 18 See Republic Aviation Corp v NLRB 324 U S 793 805 (1945) (action based on unlawful rule is in turn unlawful) 19 See also Stage Employees IATSE Local 659 (Paramount Pictures) 276 NLRB 881 (1985) Armco Inc 279 NLRB 1184 (1986) enfd in pertinent part 832 F 2d 357 (6th Cir 1987) 20 In the circumstances of this case we find it unnecessary to include a visitatonal clause in the Order as requested by the General Counsel See Cherokee Marine Terminal 287 NLRB 1080 (1988) MANITOWOC ENGINEERING CO 921 substantially equivalent position without prejudice to his seniority or any other rights or privileges previously enjoyed, and we shall order the Union to notify the Employer and Ruppelt in writing that it has no objection to Ruppelt s reinstatement We shall also order the Respondents to restore to Ruppelt the seniority he would have had if they had not applied the collective bargaining agree ment in an unlawfully discriminatory manner, and to make Ruppelt whole for any loss of earnings or other benefits that resulted from the discrimination against him 21 We shall order the Employer and the Union, jointly and severally with the Union primarily liable to make Ruppelt whole for the losses that resulted from the July 11 layoff22 by giving him backpay from July 11, 1986 until the date a proper offer of reinstatement is made The Union s obligation to make Ruppelt whole for the July 11 layoff will cease 5 days after the date it no tifies the Employer and Ruppelt that it does not object to Ruppelt s reinstatement We shall order the Union alone to make Ruppelt whole for any losses that resulted from the January 14 layoff it caused by giving Ruppelt backpay from January 14 to April 11 when he was reemployed with the Em ployer Backpay shall be made less any net interim earnings and with interest It shall be computed in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950) 23 ORDER The National Labor Relations Board orders that A The Respondent Employer Manitowoc Engi neering Co Manitowoc Wisconsin its officers agents successors and assigns shall 1 Cease and desist from (a) Maintaining and applying article V section 17, of the collective bargaining agreement effec tive November 1 1984 through October 31, 1987 with Clipper City Lodge No 516 District 10 International Association of Machinists and Aero space Workers AFL-CIO so as to discriminate on the basis of union membership (b) In any like or related manner interfering with restraining or coercing employees in the ex 21 We leave to the compliance stage of this proceeding a determination of the circumstances of Ruppelt s retirement and the effect of his retire ment on the backpay order 11 The General Counsel requests that the Board find the Union pnmar ily liable to make Ruppelt whole for the July 11 layoff because the Em ployer laid Ruppelt off on that date only because of the arbitration award based on the grievance filed by the Union 23 In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Offer Eugene L Ruppelt immediate and full reinstatement to his former unit job or if that job no longer exists to a substantially equivalent posi tion without prejudice to his seniority or any other rights or privileges previously enjoyed and jointly and severally with Clipper City Lodge No 516 District 10 International Association of Machinists and Aerospace Workers AFL-CIO the labor or ganization primarily liable make Ruppelt whole for any losses suffered as a result of his layoff on July 11 1986 in the manner set forth in the remedy sec tion of this decision (b) Restore to Eugene L Ruppelt the seniority he would have had if the Respondent Employer and the Respondent Union had not applied article V section 17 of the effective collective bargaining agreement so as to discriminate on the basis of union membership (c) Remove from its files any reference to the unlawful layoff of Eugene L Ruppelt on July 11, 1986 and notify Ruppelt in writing that this has been done and that the layoff will not be used against him in any way (d) Preserve and on request make available to the Board or its agents for examination and copy ing, all payroll records social security payment records timecards personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its facility in Manitowoc Wisconsin copies of the attached notice marked Appendix A 24 Copies of the notice on forms provided by the Regional Director for Region 30 after being signed by the Respondent Employers authorized representative shall be posted by the Respondent Employer immediately upon receipt and main tamed for 60 consecutive days in conspicuous places including all places where notices to em ployees are customarily posted Reasonable steps shall be taken by the Respondent Employer to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Employer has taken to comply 24 If 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 Nation a] 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 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B The Respondent Urion Clipper City Lodge No 516 District 10 International Association of Machinists and Aerospace Workers AFL-CIO Des Plaines Illinois its officers agents and repre sentatives shall 1 Cease and desist from (a) Maintaining and applying article V section 17 of the collective bargaining agreement effective November 1 1984 through October 31 1987 with Manitowoc Engineering Co so as to discriminate on the basis of union membership (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Immediately notify in writing Manitowoc Engineering Co Manitowoc Wisconsin and Eugene L Ruppelt at his last known place of resi dence that it has no objection to the immediate re instatement of Ruppelt to his former or a substan tially equivalent unit position without prejudice to his seniority or other rights or privileges previously enjoyed (b) Make whole Eugene L Ruppelt for any losses he suffered as a result of his layoff on Janu ary 14 1986 in the manner set forth in the remedy section of this decision and jointly and severally with Manitowoc Engineering Co with the Re spondent Union primarily liable make Ruppelt whole for any losses he suffered as a result of his layoff on July 11 1986 in the manner set forth in the remedy section of this decision (c) Request Manitowoc Engineering Co to accord Eugene L Ruppelt the seniority he would have had if the Respondent Employer and the Re spondent Union had not applied article V section 17 of the effective collective bargaining agreement so as to discriminate on the basis of union member ship (d) Remove from its files and ask Manitowoc Engineering Co to remove from its files any refer ence to the unlawful layoffs of Eugene L Ruppelt and notify him in writing that this has been done and that it will not use the layoffs against him in any way (e) Post at its office at Des Plaines Illinois and all places where notices to employees and members are posted copies of the attached notice marked Appendix B 25 Copies of the notice on forms provided by the Regional Director for Region 30 after being signed by the Respondent Unions au thorized representative shall be posted by the Re spondent Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to mem bers are customarily posted Reasonable steps shall be taken by the Respondent Union to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Union has taken to comply APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT maintain and apply article V Sec tion 17 of the collective bargaining agreement of fective November 1 1984 through October 31 1987 with Clipper City Lodge No 516 District 10 International Association of Machinists and Aerospace Workers AFL-CIO so as to discnmi nate on the basis of union membership WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Eugene L Ruppelt immediate and full reinstatement to his former unit job or if that job no longer exists to a substantially equiva lent position without prejudice to his seniority or any other rights and privileges and we will make him whole with interest for any losses he suffered as a result of his layoff on July 11 1986 as set forth in the Board s Decision and Order WE WILL restore to Eugene L Ruppelt the se niority he would have had if we and the Union had not applied article V section 17 of the effective collective bargaining agreement so as to discrimi nate on the basis of union membership WE WILL remove from our files any reference to the unlawful layoff of Eugene L Ruppelt on July 11 1986 and we will notify him in writing that this has been done and that the layoff will not be used against him in any way MANITOWOC ENGINEERING CO 25 See fn 24 supra MANITOWOC ENGINEERING CO 923 APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT maintain and apply article V sec tion 17 of the collective bargaining agreement of fective November 1 1984 through October 31 1987 with Manitowoc Engineering Co so as to discriminate on the basis of union membership WE WILL NOT in any like or related manner re strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL notify Manitowoc Engineering Co and Eugene L Ruppelt that we have no objection to the immediate reinstatement of Ruppelt to his former unit job WE WILL make Eugene L Ruppelt whole with interest for any losses he suffered as a result of his layoffs on January 14 and July 11 1986 as set forth in the Board s Decision and Order WE WILL request Manitowoc Engineering Co to give Eugene L Ruppelt the seniority he would have had if we and Manitowoc Engineering Co had not applied article V section 17 of the effec tive collective bargaining agreement so as to dis criminate on the basis of union membership WE WILL notify Eugene L Ruppelt that we have removed from our files and have asked Man itowoc Engineering Co to remove from its files any reference to his unlawful layoffs and that we will not use the layoffs against him in any way CLIPPER CITY LODGE No 516 Dis TRICT 10 INTERNATIONAL ASSOCIA TION OF MACHINISTS AND AERO SPACE WORKERS, AFL-CIO 11