Allied and Technical Wkrs. Local 15440

National Labor Relations Board - Board Decisions

Jan 20, 1971

187 N.L.R.B. 968 (N.L.R.B. 1971)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of District 50, Allied and Techni-
cal Workers of the United States and Canada and
its Local 15440 (Dow Chemical Company-Rocky
Flats Division ) and Harley A. Moore , George A.
Ryun , Clarence E . Teats. Case 27-CB-528
January 20, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On July 24, 1970, Trial Examiner George H.
O'Brien issued his Decision in the above-entitled
proceeding, finding that Respondents had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and Respondents filed briefs in answer
thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at this hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent that they are
consistent herewith.
The General Counsel excepts, among other things,
to the Trial Examiner's failure to find that William L.
Kennedy, acting on behalf of both Respondent
International and Respondent Local, informed em-
ployees that their grievances with management would
not be diligently prosecuted because they were not
union members, and that, as a result of such conduct
on the part of Kennedy, Respondents violated Section
8(b)(1)(A) of the Act. We find merit in the General
Counsel's exceptions for the reasons set forth below.
1. Oswald A. Daughtrey worked as an electrician
at the Rocky Flats Division for 6 years, until June
1969. He was not a member of the Respondent Local
nor are any of the other unit electricians members of
the Respondent Local. In February 1969, after a
meeting of the joint job evaluation committee, at
which the electricians had presented a request forjob
I We find merit in the General Counsel's exception to the Trial
Examiner ' s refusal to allow examination of James B Kelly and Sam
Franklin under Rule 43(b) of the Federal Rules of Civil Procedure
reevaluation, there was a private conversation be-
tween Daughtrey and William L. Kennedy, a member
of the International's negotiating committee and the
Local's grievance committee, who represented the
electricians at the aforementioned meeting. Daugh-
trey testified that Kennedy, in the presence of Doc
Ballard, another electrician
informed us that he had talked to Mr. Simmerman
[another member of the negotiating and grievance
committees], and Mr. Simmerman himself felt that
we had a very good case, that we presented it very
well, that they thought that they could get more
money for us, but it would be very difficult unless
wejoined the Union.
Ballard's testimony corroborates that given by
Daughtrey. The Trial Examiner held that Kennedy's
comments amounted to no more than "a reiteration of
the fact that `in union there is strength,' and a
repetition of the argument by which Kennedy
constantly sought to persuade his fellow craftsmen to
join." We disagree.
Kennedy's statement amounted to a direct threat
that if the electricians did notjoin Respondent Local,
the Respondent Local would find it difficult to do
anything for the electricians. This being the case, and
as Respondents were the exclusive representatives of
all employees in the unit without regard to their
membership status. Kennedy's statement restrained
the employees in the exercise of their rights guaran-
teed in Section 7 of the Act, and accordingly violated
Section 8(b)(1)(A) of the Act.
In April 1969, Kennedy told Daughtrey "that any
grievance procedure or any grievance that was
presented by the electricians or the electricians group
would be settled in favor of the company at the first
step." Shortly thereafter, Kennedy confirmed the
statement to Daughtrey in the presence of four
electrician apprentices who had gathered in a plant
conference room on apprenticeship business. The
Trial Examiner found that the statement was coercive,
but that, since it was untrue and known by Daughtrey
and Kennedy to be untrue, the statement did not
violate Section 8(b)(1)(A) of the Act. We disagree.
Although the record shows that the Local had
represented Daughtrey in the past, there is no
assurance that it would continue fairly to represent
electricians in the future. This, indeed, seems to us the
implied threat which was communicated. In the light
of Respondents' other unlawful remarks, we find the
statement was calculated to force Daughtrey and the
electricians to join Respondent Local or to have their
grievances turned down at the first step, and that such
a statement violates the statutory right of employees
However, in the absence of a showing that the General Counsel was
prejudiced by the Trial Examiner' s ruling , we find that no remedial action
is warranted
187 NLRB No. 130
ALLIED AND TECHNICAL WKRS. LOCAL 15440 969
to refrain from union membership. This conduct
violates Section 8(b)(1)(A) of the Act.
Boyd A. May has been an electrician since 1952. He
is not a member of Respondent Local. May testified
that at the conclusion of the first-step hearing on his
crew-leader grievance, on April 7, 1969, Kennedy told
him that he "couldn't expect too much by not being a
member." The Trial Examiner held that the statement
was "too indefinite and too ambiguous to support a
finding that Section 8(b)(1)(A) was violated thereby."
Contrary to the Trial Examiner, we hold that, in the
context of the other statements made by Kennedy,
this remark is neither indefinite nor ambiguous.
Kennedy's statement to May constitutes no more
than a thinly veiled threat that persons who are not
union members would receive less vigorous represent-
ation than members. This statement clearly contra-
venes Section 8(b)(1)(A) of the Act.
2. The International disavows any responsibility
for Kennedy's actions with respect to the employees
in questions. We find the position of the International
to be without merit.
The record reveals that Respondent International,
then an affiliate of the United Mine Workers, was
certified by the Board on October 30, 1964, as the
exclusive representative of all Dow Rocky Flats
Division employees in a conventional production and
maintenance unit. On December 7, 1964, Respondent
International established Respondent Local 15440.
All employees of Dow, who were members of the
International before the Local was established,
automatically became members of the Local. The
Local membership adopted bylaws and elected
officers, who are all full-time employees of Dow at
Rocky Flats.
The Company continues to recognize the Interna-
tional as the exclusive representative of the employees
involved. The International discharges its responsibil-
ities for contract administration and for contract
negotiation through its negotiating committee, most
of whose members are also elected officials of the
Local.
The Local has 85 shop stewards who are elected in
September of each year and are responsible for
assisting in the processing of grievances, administer-
ing the contract on the shop floor, and maintaining
workable supervisor-employee relationships. The
Local also has an elected grievance committee, which
is responsible for handling grievances with the
Company. Through its grievance committee, the
Local has discretion to determine whether or not a
grievance will be taken to arbitration. Those individu-
als elected to membership on the Local's grievance
2 Construction, Shipyard and General Laborers Local 1207, AFL-CIO, et
al (Alfred S Austin Construction Company, Inc), 141 NLRB 283, United
committee are appointed to serve as members of the
International's negotiating committee.
The above facts clearly demonstrate the interlock-
ing relationship existing between the negotiating and
grievance committees, the dual agency of those who
serve on both, and, accordingly, the responsibility of
both the International and the Local for remedying
unfair labor practices committed by individuals
serving simultaneously on these committees while
acting within the scope of their apparent authority.2
As we find that Kennedy engaged in unlawful
conduct on those occasions when he was acting within
the scope of his apparent authority as an agent of both
Respondent International and Respondent Local, we
find that the International and the Local are equally
responsible for the unfair labor practices herein
found.
THE REMEDY
Having found that Respondents engaged in certain
conduct prohibited by Section 8(b)(1)(A) of the Act,
we shall order Respondents to cease and desist
therefrom and take specific affirmative action, as set
forth below, designated to effectuate the policies 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. Respondent International and Respondent
Local are labor organizations within the meaning of
Section 2(5) of the Act.
3. By restraining the employees in their rights
guaranteed in Section 7 of the Act, Respondent
International and Respondent Local have violated
Section 8(b)(1)(A) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
Respondents International Union of District 50,
Allied and Technical Workers of the United States
and Canada and its Local 15440, their 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 with less vigorous representa-
tion if they do not join International Union of District
50, Allied and Technical Workers of the United States
Mine Workers of America, et a! (Weirton Construction Company), 174
NLRB No 52
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Canada and its Local 15440, or any other labor
organization.
(b) In any other like or related manner restraining or
coercing employees of Dow Chemical
Company-Rocky Flats Division in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Post at their offices in Denver, Colorado, copies
of the attached notices marked "Appendix A" and
"Appendix B."3 Copies of said notices, on forms
provided by the Regional Director for Region 27,
after being duly signed by duly authorized representa-
tives of Respondent International and Respondent
Local, shall be posted by them immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent International and Respondent Local
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violation of
the Act not specifically found.
3 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 A
NOTICE To 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 with less vigorous repre-
sentation if they do not join International Union
of District 50, Allied and Technical Workers of the
United States and Canada and its Local 15440, or
any other labor organization.
WE WILL NOT in any other like or related
manner restrain or coerce employees of Dow
Chemical Company-Rocky Flats Division in the
exercise of the rights guaranteed them by Section 7
of the Act.
LOCAL 15440,
INTERNATIONAL UNION
OF DISTRICT 50, ALLIED
AND TECHNICAL
WORKERS OF THE
UNITED STATES AND
CANADA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, New Custom House, Room 260, 721 19th
Street, Denver, Colorado 80202, Telephone
303-297-3551.
APPENDIX B
NOTICE To 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 with less vigorous repre-
sentation if they do not join International Union
of District 50, Allied and Technical Workers of the
United States and Canada and its Local 15440, or
any other labor organization.
WE WILL NOT in any other like or related
manner restrain or coerce employees of Dow
Chemical Company-Rocky Flats Division in the
exercise of the rights guaranteed them by Section 7
of the Act.
INTERNATIONAL UNION
OF DISTRICT 50, ALLIED
AND TECHNICAL
WORKERS OF THE
UNITED STATES AND
CANADA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
ALLIED AND TECHNICAL WKRS. LOCAL 15440 971
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, New Custom House, Room 260, 721 19th
Street , Denver, Colorado 80202, Telephone
303-297-3551.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner: On April 21, 22,
and 23, 1970, a hearing was held in the above-entitled
matter in Denver , Colorado, at which all parties appeared
and participated. The complaint issued September 5, 1969
is based on a charge filed June 27, 1969, as amended
August 25, 1969. The complaint as amended, November 21,
1969 and April 21, 1970 alleges that Respondent Interna-
tional Union and its Local 154401 engaged in acts violative
of Section 8(b)(1)(A) of the National Labor Relations Act.
Upon the entire record in this proceeding, including my
observation of the witnesses and after due consideration of
the posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Dow Chemical Company, Rocky Flats Division is the
operator of the Rocky Flats, Colorado, plant of the Atomic
Energy Commission, where its operations have a substan-
tial impact on the National Defense.
Dow Chemical Company, Rocky Flats Division, is an
employer within the meaning of Section 2(2) of the Act
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS, RESPONDENT
International Union of District 50, Allied and Technical
Workers of the United States and Canada , herein called
International , is a labor organization within the meaning of
Section 2(5) of the Act.
Local Union # 15440, International Union of District 50,
Allied and Technical Workers of the United States and
Canada, herein called Local, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. The complaint describes Respondent International
and Respondent Local in the singular as one labor
organization and alleges that William L. Kennedy and John
A. Cash are agents of this single entity. Respondent Local
in a separate answer denies that Kennedy and Cash are its
agents, and avers that Local and International "are not one
and the same organization and that they do not together
constitute a labor organization ." Respondent International
in a separate answer denies that Kennedy and Cash are its
agents and also avers that International and Local "are not
a single labor organization but are separate entities."
2. The complaint further alleges and the answers deny
that "Respondent" restrained and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act in the
following instances:
a. Kennedy, on or about March 6, 1970, refused to
give assistance to an employee who wished to file a
grievance because said employee was not a member of
Respondent.
b. Kennedy, in or about February, 1969, stated to
employees that Respondent would not represent them
as nonmembers of the Respondent as well as it would
represent those employees who were members of
Respondent.
c. Kennedy, on or about April 29, 1969, stated to an
employee that the Respondent would not represent that
nonmember of the Respondent as well as an employee
who was a member of Respondent.
d. Kennedy , on or about March 19 , 1969, refused to
process a job evaluation for an employee because he
was not a member of Respondent and stated to
employees that employees who were not members of
Respondent would not receive representation equal to
that received by employees who were members of
Respondent.
e. Kennedy, on or about May 7, 1969, refused to
give assistance and cooperation to an employee
regarding a grievance filed by this employee because
said employee was not a member of Respondent.
f. Kennedy, in or about April, 1969, stated to an
employee that Respondent would not represent him as a
nonmember of Respondent as well as it would represent
those employees who were members of Respondent.
g. Kennedy, on or about March 18, 1969, stated to
an employee that the Respondent would not represent
him as a nonmember of the Respondent as well as it
would represent those employees who were members of
Respondent.
h. Kennedy, in or about April, 1969, stated to
employees that Respondent would not represent them
as nonmembers of Respondent as well as it would
represent those employees who were members of
Respondent.
i. Cash, in or about May, 1969, stated to an
employee that said employee and other employees who
were not members of Respondent would receive greater
benefits from grievance procedures if said employees
became members of the Respondent.
j. Kennedy, in or about April, 1969, stated to an
employee that said employee and other employees
would be unsuccessful in a job reevaluation because
said employees were not members of Respondent.
k. Cash, in or about April, 1969, stated to an
employee that the Respondent would be less diligent in
processing the grievances for said employee and other
I The caption was amended to reflect the disaffiliation of District 50
from United Mine Workers
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees because they were not members of the
Respondent.
B. Agency of Kennedy and of Cash
International (then an affiliate of United Mine Workers)
was certified by the Board October 30, 1964 to be the
exclusive representative of all Dow's Rocky Flats employ-
ees in a conventional production and maintenance unit On
December 7, 1964, International constituted Local Union
15440. Membership in the Local automatically confers
membership in the International, and employees of Dow
who were members of International before the Local was
established automatically became members of the Local.
The Local membership adopted bylaws and elected
officers, all of whom are full-time employees of Dow at
Rocky Flats. The Local has no offices and its officers
conduct their business and maintain their records in their
homes. The Local has its own bank account. A few
members pay their dues directly to the Local treasurer. The
company collects the dues of about 1,400 members
pursuant to voluntary checkoff and transmits these dues to
the Local treasurer. He in turn transmits to International its
per capita share of the dues. The Local membership also
elected a grievance committee of seven men These were
appointed by International to serve with S. T. Franklin,
Regional Director of International, as its negotiating
committee . A contract was signed effective from June 28,
1965 to July 1, 1968.
The second contract effective from June 30, 1968 to June
27, 1971 recites inter aka.
This agreement . . . is entered into by and between the
International Union of District 50, UMWA . . . on
behalf of Local Union No. 15440, for and on behalf of
those employees comprising the Bargaining Unit . .
and the Dow Chemical Company Rocky Flats Divi-
sion. . . .
The Company recognizes International Union of
District 50, United Mine Workers of America as the
sole collective bargaining agency as certified by NLRB
Case No. 27-RC-2693 .
IN WITNESS WHEREOF, the Company, by its duly
authorized General Manager and Committee and the
employees, by their duly authorized Representatives
and Committee, have hereunto signed their names this
16th day of July, 1968.
THE DOW CHEMICAL COMPANY
ROCKY FLATS DIVISION
By: L.M . Joshel General Manager
C.M Love , Chairman Company Negotiating
Committee
C. R. Claridge C. W. Piltingsrud
V. Fruehauf A T. Schutten
C. H. Partington E. J. Walko
INTERNATIONAL UNION OF
DISTRICT 50, U.M.W.A.
By: S.T . Franklin
Regional Director
D E. Alexander
International
Representative
R.
W.
P. Bradley
L. Kennedy
J. D. Kelly, Chairman V. A. Owen
Union Negotiating I. K. Roberts
Committee T. E. Simmerman
The Board has uniformly held, with the support of the
weight of judicial authority, that "a local union is a legal
entity apart from its parent organization, and that an
international is not responsible for unlawful conduct of the
local which it has not specifically authorized or sanc-
tioned." United Mine Workers of America, etc., (Blue
Diamond Coal Company), 143 NLRB 795, 797. There is no
evidence in this record which would warrant a contrary
conclusion. John A. Cash is the elected financial secretary
of the Local. Cash is an agent of Local and is not an agent
of International. William L. Kennedy is an elected member
of the grievance-negotiating committee. In his position as a
grievance committee member, he is an agent of the Local.
In his position as a negotiating committee member he is an
agent of International. The agency powers which he
exercised in negotiating and in signing the current contract
on behalf of the exclusive bargaining representative did not
end when the ink dried on his signature . Kennedy and the
other members of the committee have a continuing
obligation to International to see that the contract which
they signed is properly interpreted and administered. This
function is carried out through periodic "Miscellaneous
Plant Problems" meetings of the union and company
committees, of which minutes are kept, and whose
decisions serve as guides to contract interpretation.
C. The Setting
The Rocky Flats plant occupies more than 15 buildings
distributed over a wide area. It has 31 departments in 5
"groups," or divisions. The "facilities" (or maintenance)
group embraces the machine shop, instrument shop, pipe
shop, carpenter shop, electric shop , sheetmetal shop, and
paint shop
The certification of International resulted from a runoff
election wherein it received 858 votes and its opponent,
Denver Metal Trades Council, AFL-CIO, received 752
votes. The collective-bargaining agreement does not require
membership in District 50 as a condition of employment,
and a_majority of the employees in the facilities group have
refrained from joining District 50. In the entire plant there
are 91 steward "spots" or locations served by 85 stewards,
all of whom are members of District 50. Kennedy is steward
for the electricians and the sheetmetal workers in the
facilities group. The contractual grievance procedure is, in
outline summary:
A. Informal step. Employee must discuss grievance
ALLIED AND TECHNICAL WKRS . LOCAL 15440
with supervisor. Either may call for presence of steward.
If employee is not satisfied grievance must be reduced
to writing.
B Step I. Employee, steward, and supervisor must
discuss grievance . Supervisor must give his answer in
writing. If the Union is not satisfied the Union may
refer the grievance to Step II by notifying labor
relations in writing-
C Step II. A meeting is called by the chairman of
the company committee, Fruehauf, to include the
employee, his supervisor, the steward, and two
"hearers", one appointed by Fruehauf and one
appointed by the chairman of the union committee,
Kelly. The company hearer must give his answer to the
union hearer in writing. If the Union is not satisfied it
may refer the grievance to step III by notice from Kelly
to Fruehauf in writing.
D. Step III. Hearing before joint meeting of full
union committee and full company committee. The
company committee must submit its answer in writing.
If the Union is still not satisfied it may invoke binding
arbitration.
D. The Allegation of Refusal to Process a Job
Reevaluation
Arthur G. Dorn and William L. Kennedy are sheetmetal
journeymen and both have worked in the facilities group in
the same shop at Rocky Flats for over 12 years. Dorn has
been a member of Sheet Metal Workers International
Association for almost 18 years and has never joined
District 50. Kennedy Joined District 50 in 1965 after the
first contract was signed. He was elected steward by the
District 50 members in the 60-man sheetmetal department
and was elected to the six-man bargaining-grievance
committee by the entire membership of Local 15440.
Kennedy attempted to persuade Dorn to join with the
argument:
.. . It didn't matter what union was here, they needed
everybody in it to have strength.
Dorn replied that he did not care how long District 50 was
in the plant, that he would never join it, because-
I am of the firm belief that the past history will show
that no industrial union has ever done a real good job of
representing a craftsman.
In 1969, Dorn permitted to remain on the wall of his
welding booth an opprobrious epithet applied to the name
"Kennedy", and permitted to hang from a girder immedi-
ately above his booth a piece of fabric bearing the legend,
"Kennedy's crying towel." Dorn also prepared and
distributed to other mechanics buttons stating in bold
letters:
B R A V O
50
QUITTING
In connection with the 1968 negotiations a job evaluation
program was agreed upon to be administered by a
committee comprised of representatives of management
and of Local 15440 . The committee published and caused
to be distributed to all affected employees a 21-page
document describing all the details of the "Employee Job
Evaluation Program", and a I-page form by which any
973
affected employee could request evaluation or reevaluation
of his job. In implementation of this program in 1968,
pipefitters , machinists, and sheetmetal workers received a
17-cent increase and electricians a 7-cent increase . Against
this background the General Counsel relies on the
following testimony of Dorn to establish a violation of
Section 8(b)(I)(A):
[March 19, 1969, in Dorn 's welding booth], Mr.
Kennedy came in and I asked him if he was going to file
an evaluation for us and he said no. At that point I
asked him why and he said when you join up, we will
file one for you. So I said to him what you are actually
telling me is that we are not going to get any
representation until we join up, is that it ? and he says
that 's about the size of it , and at that point I said , "Well,
I wish I had a witness to this," and he says, "You don't
have and that 's why I can say these things." At that
point the conversation ended.
Kennedy, describing the same conversation , testified:
. He asked me if I was going to do anything about
job evaluation . . . I said , ". . . no, I am not going to
file a job evaluation . I have shown you many times how
to file for a job evaluation . I have given you the booklet.
The minute I got it I gave it to you, and I have supplied
you with another one in the meantime , and I will go get
another one now," and I did . I went to my locker and
got him this . . I came back and throwed it on the
welding booth and said , "Look at Page 3 ; that 's got the
entire explanation of how to file for Job re-evaluation.
" He said , " I don't want to do it, I want you to do it
."I said, "That' s usual-you always want somebody
else to do it for you; you don' t want to file anything
under District 50."
Kennedy specifically denied telling Dorn, "when you sign
up we will file one for you."
I accept Kennedy's testimony as the more reliable in part
because of Dorn 's evasive answers when cross-examined
regarding his knowledge of the Job evaluation program, his
knowledge of the legend on the fabric , and his knowledge
of the derogatory statement on the wall of his welding
booth I conclude that Dorn initiated this conversation in a
deliberate attempt to provoke Kennedy , with full knowl-
edge that no further benefit could be obtained from a
reevaluation at the time , and full knowledge that he had the
same right as Kennedy to request reevaluation , no more, no
less. Since Kennedy was under no duty to process the
reevaluation his refusal did not violate Section 8(b)(1)(A) of
the Act. The refusal was absolute and was not conditioned
upon Dorn Joining District 50.
E. The Alleged Refusal to Assist an Employee Who
Wanted to File a Grievance
John Thomas Lewis was employed for about 4 years as a
glass blower at Rocky Flats and worked in the pipe shop in
the facilities group . His steward was Max Davis . In March
of 1969, Lewis was notified that he would be laid off
because he was being "bumped" by an apprentice who had
Just attained journeyman status. (The contract recognizes
plantwide seniority and prescribes a 4-year apprentice
period for glassworkers). Lewis was on withdrawal from
974 DECISIONS OF NATIONAL
International Brotherhood of Electrical Workers and had
never joined District 50.
Lewis testified that in a conversation with Kennedy
about a week before his layoff (March 13, 1970):
A. I said, "I suppose you heard what happened to
me."
Q. What happened to you?
A. That I had lost my job, was notified that I was to
be laid off, and he said, "Yes." He said, "I know all
about it." And I said, "Well, I'd like to file a grievance."
He says, "Okay." He says, "Tell me what to write." I
said, "Well," I said, "I don't know the proceedings that
you go through when you file a grievance." I said, "I
thought you would know what to do." And he said,
"Yeah, you guys come to us when you get in a bind, but
you don't want to join the union when everything is all
right." And I said, "Well," I said, "you get me out of
this scrape and I will join the union." He said, "Well,
you are just like old L. P. Hall. He lost his job and
promised us if we would get his job back, he would join
the union. So we got his job back, and he still hasn't
joined the union, and we are not going to fall for that
one again." He says, "Under the law, I am required to
file a grievance for you. You tell me what to write."
At that point I says, "Well," I says, "I can tell by your
attitude that you would just as soon have nothing to do
with it," and he says, "That's right." I said, "All right;
consider the matter closed, and I am going to notify the
NLRB and tell them what you said." He got up and
walked out.
Lewis though conceding that he had read the seniority and
apprenticeship sections of the contract, testified that he
could not recall having read the sections on grievances and
went to Kennedy because "he is the only one I knew of as
steward."
Kennedy, describing the same conversation testified:
He asked me if I had heard what happened to him, and
I said yes, I had. So he wanted to know what could be
done about it, and I said, "What do you mean?" He
says, "Well, I don't want to lose my job," so I proceeded
to tell him that if he wanted to do anything, he would do
it through Max Davis who was the glass workers
steward. But first, he had to ask his foreman to file a
grievance. Then ask for the steward, when you ask the
foreman to file the grievance.
Q What, if anything, did he say in response to this?
A Something like, "What's the use? District 50
won't do anything for me, anyhow."
Q. What, if anything, did you say in reply to this?
A. Well, I said that, "You guys get in trouble, and
then you holler for the union."
I credit Kennedy's recollection. Lewis, having read the
contract sections on seniority and on apprenticeship would
have known that his cause was hopeless. Kennedy did more
than the law required when he referred Lewis to the
pipefitter steward and reminded him of the procedure to be
followed in filing a grievance. Kennedy did not refuse to
assist Lewis, and his explanation to Lewis did not violate
Section 8(b)(1)(A) of the Act.
LABOR RELATIONS BOARD
F. The Alleged Refusal, about May 7, 1969, to
Give Assistance and Cooperation to an Employee
Regarding a Grievance filed by this Employee
The General Counsel relies on the testimony of George
A. Ryun describing a telephone conversation with Kennedy
on either May 8 or May 9, 1969. Ryun testified:
I asked Mr. Kennedy for all the paperwork including
the original grievances concerning two leaders in
another department . . . . He said, "If you think I am
going to give you something to run down to the Board
with, you're crazy." I said that I think that these two
have quite a similarity as to the grievance just filed by
Boyd May, his grievance in particular, and I would like
to have them see to find the similarity or dissimilarity or
words to that effect. He says, "These are two entirely
different cases." I said it seems that from what I have
heard, they are pretty similar to me . . . . He says,
"Well, they are entirely different," and he went on to
say during the conversation that I just didn't seem to get
the message, which I replied, "Perhaps I'm getting the
message too well," and I again requested that he send
me this information and he said he would. I asked him
when I could expect this literature and he said, "Oh
around Christmas, maybe."
Kennedy, describing the same conversation testified:
Q. Do you remember any of those telephone
conversations?
A. I remember one where he was after the
supplement again and I told him I didn't know what he
was talking about, and he said I did. I said, "Okay, I will
get them for you about Christmas."
Q. During this same telephone conversation, was
the subject of the other grievance material brought out?
A. Yes, that's why he called.
Q. What did he say about the other grievance
material?
A. He wanted to know if I had located what he
asked for and I told him no.
s
Q . . when was that telephone conversation . . .?
A. I talked to him so many times during this area of
time-there was a rash of grievances from this group, so
I was with him, it seemed like every other day. It is hard
to recall what happened . . . . I felt like cussing, but I
didn't. I said around Christmas-I was exasperated
.... I was sick of this thing that he was talking about.
He had been going on and on about supplements, and I
didn't know what he meant.
In the 1968 negotiations, International had agreed that
Dow should have a free hand in the assignment, transfer,
and removal of certain minor supervisors in the bargaining
unit called "crew leaders." The 1965 contract had required
that crew leaders be selected on the basis of plant seniority,
and belong to the craft or group which they supervised.
These restrictions on company action were omitted from
the 1968 contract. At a miscellaneous plant problems
meeting on September 3, 1968, the company made a
unilateral declaration of the policy which it intended to
follow in the selection and rotation of crew leaders. The
ALLIED AND TECHNICAL WKRS . LOCAL 15440
company also distributed to its supervisors on February 10,
1969, a looseleaf booklet containing its contract interpreta-
tions, including one sheet dealing with crew leaders. In
March, 1969, as part of a reorganization in the facilities
group, Boyd T. May, who had been an electrician crew
leader for over 5 years, was temporarily reduced to
journeyman, and came under the supervision of a crew
leader who was not an electrician. May prosecuted through
Kennedy a grievance which was denied at the first step, and
which Kelly elected to take no farther. The disposition
dated April 7, 1969 was:
Adjustment denied-No discrimination was intended
or displayed. Upon reviewing the assignment of
777-779 personnel, it was felt that Mr. May's assign-
ment as Crew Leader was no longer required. The
temporary Crew Leader selection was consistent with
the contract provisions (MPP No. 3,9-3-68) Temporary
Crew Leader assignments may be rotated among
employees.
On March 12, 1969, George A. Ryun, an electrician
member of I.B.E.W. who had never joined District 50,
prepared a rough draft of a grievance complaining that
electricians should not be supervised by nonelectricians
and took it to William Jewell, a District 50 steward for the
inspection department. Jewell told Ryun that the contract
provision which he relied on had been deleted, but that
there was a "contract supplement" which would support his
grievance . Jewell asked Kelly if he could prosecute the
grievance for Ryun, and Kelly replied that it should go
through the electricians' steward, Kennedy. A day or two
later Kennedy and Ryun had a discussion in the electric
shop in the presence of a number of other electricians and
Jewell. Ryun testified:
There was . conversation . . about . . . who would
be my steward. I asked for another steward to represent
me. Mr. Kennedy stated that he would be my steward
and I asked if I had any choice and he said, none, that
he would represent me on any grievance that I filed.
I said I didn't think this was a very democratic
process. Mr. Kennedy stated that it was good enough
for a scab.
Kennedy testified:
Well, he said that he didn't want me representing him as
his steward, and I told him it didn't matter what he
wanted, that's the way it was. And then, during the
conversation, I mentioned something about being
elected as the electrician's steward, and he said he had
nothing to do with the election, and I said, "You scabs
don't have anything to do with the election."
On March 18, Ryun wrote to Kelly:
I refer you to Article I Section 5A & 5B of the 1968
Agreement [reciting that the steward should be a
member of the group which he represents, and the right
of an employee to call on any steward when his location
has none ]
Mr Kennedy is not of the Electrician group, nor is he
in building 777 Mr. Jewell is not of the Electrician
group, but he is in building 777.
In view of the above and the pact that Mr. Kennedy has
stated that he considers me to be a "scab," I request that
975
Mr. Jewell be assigned as the steward to process my
grievance.
Kelly denied this request in a letter to Ryun dated March
26, 1969.
On March 31, 1969, Ryun, May, and two other
electricians filed with the assistance of Kennedy a
grievance contesting the eligibility of the employee of a
different subdepartment, who was not an electrician to be
crew leader over electricians. The grievance was denied at
step I and taken to step II by Kelly. At either the step I or
the step II hearing the electrical supervisor, Burnos D.
Kessel, gave to Ryun the sheet from his looseleaf booklet
containing the following text:
ARTICLE VIII - WAGES
Section 7. Crew Leader Rate
(MPP No. 3 9-3-68)
It was agreed during the 1968 Contract Negotiations that
the matter of crew leader selection would be eliminated
from the Contract with the understanding that the Crew
Leaders would be picked on the basis of their leadership
ability Selection of the Crew Leader should therefore be
the most qualified person to perform the duties of a Crew
Leader Seniority is a factor in choosing comparable
employees On 9-3-68, the following general method of
procedure for selection of Crew Leaders was deemed
proper by the Joint Company-Union Committee:
Make it known that a Crew Leader vacancy exists;
consider all those who express an interest; if a more
senior employee expressing an interest is bypassed,
explain why the particular employee was chosen- not
the reasons the more senior employee was bypassed.
Temporary crew leader assignments may be rotated
among employees. However, employees are not to be
considered qualified as Crew Leaders solely on the basis
of holding such temporary assignments.
(MPP No. 4 9-6-68)
It was agreed that an employee on a shift may be
considered for Crew Leader even though he does not
have enough seniority to hold that shift. However, being
selected a Crew Leader does not automatically give the
employee shift preference.
On April 22,1969, Ryun wrote to Kelly:
During the processing of my grievance dated 31 March
1969, it became evident that both the Company and the
Union had either used, attempted to use, or threatened
to make use of a "Supplement" to the 1968 agreement.
I hereby, respectfully request a copy of above-
mentioned Supplement.
On April 28, Kelly replied:
I am unable to find any evidence of the use of
any "Supplement" in the processing of your grievance.
. There is in fact no supplemental agreement
between the Company and the Union governing the
selection of crew leaders .. .
Kelly enclosed with his letter to Ryun a copy of the minutes
of the miscellaneous plant problems meeting of September
3 containing the company's declaration of policy.
The Ryun grievance was denied at step II and taken no
farther. Following his May 8 telephone call to Kennedy,
Ryun obtained from Fruehauf a complete set of all the
papers relating to every grievance which involved crew
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaders filed since the effective date of the 1968 contract
and a complete copy of the company booklet, including the
page relating to crew leaders.
Ryun testified that he never asked Kennedy for a copy of
the contract "supplement", testified that he has not yet
received a copy of the contract "supplement" which he still
seeks, testified that he first learned of the existence of other
crew leader grievances after the step II hearing, and that he
made the telephone call to Kennedy at the suggestion of
Kelly.
Kennedy testified that before the second step hearing
Ryun told him that there were at least two other grievances
where crew leaders had gotten their jobs back. Kennedy
asked Ryun for details so he could research it with Kelly,
but Ryun had none. Kennedy promised to find out what he
could. Ryun also asked Kennedy to give him the contract
"supplement" and Kennedy replied that he did not know
what Ryun was talking about. On at least two other
occasions prior to the May 8 telephone call, Ryun asked
Kennedy for the "supplement" and received the uniform
reply, that Kennedy did not know what Ryun was talking
about. Kennedy asked Kelly if he knew of any grievances
which had been won by crew leaders and received a
negative reply. There had in fact been crew leader
grievances processed by the Local, but none had been
successful.
I cannot credit the testimony of Ryun where it conflicts
with that of Kennedy. I find that Ryun made repeated
demands for a nonexistent supplement. Kennedy did not
have, and had no duty to obtain for Ryun, the booklet
issued by management in February, 1969 I find that Ryun
also made repeated demands for grievances which had been
won by crew leaders. There was none such. Kennedy did all
that was required when he made inquiry of Kelly and when
he told Ryun that he would require some better description
before he could locate any specific grievance. In these
circumstances his irritation on May 8 was understandable
and his refusal of Ryun's demands did not restrain or
coerce Ryun in violation of Section 8(b)(I)(A) of the Act.
G. The Alleged Threats of Discrimination in the
Handling of Grievances and the Handling of Job
Reevaluations
1. Statements of Kennedy at job evaluation
meeting in February, 1969
Oswald A. Daughtrey worked as an electrician at Rocky
Flats for 6 years. He has been a member of I.B.E.W. for 19
years and never joined District 50. After a meeting of the
committee at which electricians had presented a request for
job reevaluation there was a private conversation between
Kennedy and Daughtrey in the presence of another
electrician, Doc W. Ballard Daughtrey testified:
Kennedy informed us that he had talked to Mr.
Simmerman, and Mr Simmerman and himself felt that
we had a very good case, that we presented it very well,
that they thought that they could get more money for
us, but it would be very difficult unless we joined the
union.
Ballard testified on direct examination by the General
Counsel.
I don't recall very much of the exact words that were
spoken but Mr. Kennedy told us that Mr . Simmerman
had told him that he thought we had a pretty good case,
but since none of us were members of the union , that he
didn't feel they should do any more for us.
And on cross-examination:
Q What was it Mr. Kennedy said at the end of this
conversation that he was going to deny?
A The fact that he had told us that we could expect
anything in the way of reevaluation unless some of us
joined District 50.
Daughtrey also testified that in February, 1969, there
were about 60 electricians in the facilities group and that
none was a member of District 50. Kennedy was not a
member of the evaluation committee , but was present as the
electrician 's steward . There is no claim that his representa-
tion was, in fact, incompetent or ineffective. Daughtrey's
testimony, substantially affirmed by Ballard on cross-
examination merely amounts to a reiteration of the fact that
"In union there is strength," and a repetition of the
argument by which Kennedy constantly sought to persuade
his fellow craftsmen to join. Kennedy's statement did not
violate Section 8(b)(1)(A) of the Act.
2. Statement of Kennedy to Daughtrey in April,
1969
About 2 months before Daughtrey resigned his employ-
ment (June 1 , 1969), while Kennedy was in the apprentice
conference room on apprenticeship business:
[Daughtrey] asked if it was true that the disposition of
all gnevances filed by the electrical department would
be settled at the first step, and he said, "That's correct.
Any grievance filed by the electricians would be settled
in favor of the company at the first step."
Daughtrey also testified that in late 1968:
I told [Kennedy] I was interested in filing a grievance
and so he asked me the details of the case . I gave it to
him; I also gave him a rough draft of the way it was to
be written up, and he wrote the grievance up the way I
had written it, and signed it.
The grievance was denied by the company at step I, was
taken by District 50 to step II, and there resolved in
Daughtrey's favor
Kennedy's statement to Daughtrey, though coercive in
form, was untrue and known by Daughtrey to be untrue. In
all the circumstances of this case the statement did not
violate Section 8(b)(I)(A) of the Act
3. Statement of Kennedy to Dirmaier , April 28,
1969
Anton Dirmaier has been employed for 7 years at Rocky
Flats as a maintenance electrician . He has been a member
of I.B.E.W. for 15 years and has neverjoined District 50.
Dirmaier had been assigned to work 8 hours overtime on
April 11, 1969. On April 9, Dirmaier was notified by his
supervisor that the scheduled overtime had been cancelled.
On April 11, another electrician, Boedeker, worked the
overtime shift which had originally been assigned to
Dirmaier. When he reported these facts to James D. Kelly,
president of Local and chairman of the grievance-negotiat-
ing committee, Kelly said he had a good grievance and
ALLIED AND TECHNICAL WKRS LOCAL 15440 977
should see the building steward, Henry DeFee. At step I the
foreman's answer denying the grievance was-
I think a mistake has been made by the aggrieved's
supervision, but not intentionally to deprive him of
overtime. Since Dirmaier did not actually work, is not
now "out of spread" and will make up the next overtime
available, I do not think the company should pay him
the 14 hours asked for.
Upon receiving this answer, Kelly notified management
that he was taking the grievance to step II Kelly appointed
Kennedy to be the Union's hearer at the step II hearing, to
be held April 28.
Dirmaier testified that between the step I and step II
hearings:
Mr DeFee was sick at the time and I think Mr
Kennedy did hear about the grievance, and I was sitting
in the locker room on coffee break, and he did come
through. He bent over to me and said, "If you have any
case, come to me; I am the steward," and I said, "Who
said so?" and he said, "I say so."
Kennedy, describing the same incident testified:
Q. . . have you talked to Mr. Dirmaier on any
other occasions?
A. Yes, I talked to him prior to this grievance.
Q When was it you had this discussion?
A. I don't know exactly when it was, but I was told
that he wanted another steward, and I went down and
told him that I would be his steward, nobody else.
Q. Can you recall anymore of the conversation
than the one comment you have already made?
A. No, that was all. Tony is awfully hard to talk to,
and I don't talk to him anymore than I have to.
The step II hearing convened at 3 p.m. on April 28,
adjourned at the close of the work day, and was resumed
and concluded on April 29. The written report concluded
Panel Disposition
As stated in the Step I disposition, supervision made a
mistake in the handling of this overtime assignment.
However, it is the opinion of this panel that the mistake
was an honest one, and no discrimination was intended
or exercised in this matter. In addition, the overtime list
for the week of April 6, 1969 indicated that the
distribution of overtime was within the limits estab-
lished by the labor agreement. Also, it was indicated in
the discussion with the aggrieved that this is not a
matter of a repeated mistake on the part of supervision.
In view of the foregoing, the adjustment desired is
denied and this grievance is considered settled at this
step
Wm. L. Kennedy John F Keating
Union Representative Company Representative
The foregoing determination was based on the following
contract provision:
Honest errors in administration of overtime will be
corrected by giving the employee affected the opportu-
nity to work the next available overtime.
There is no contention by the General Counsel or by the
Charging Party that District 50 failed in its duty of fair
representation, or that the grievance was improperly
resolved. They do argue that certain words alleged to have
been spoken by Kennedy on the evening of April 28
constituted a threat of economic retaliation reasonably
calculated to coerce Dirmaier in the exercise of his
statutory right not to join District 50. The testimony of
Dirmaier and Kennedy is in direct and irreconcilable
conflict. Dirmaier testified:
Q. After the first grievance meeting, do you recall
having a conversation with Mr. Kennedy concerning
the grievance?
A. No, it was right after the first meeting, the
second step, Kennedy told me I should wait until the
room was cleared and then told me, "You know, I can't
represent you as well as if you were a member of
District 50," and I told him, "You shouldn't say this." I
said, "In the agreement everybody should be represent-
ed equally if he is a member or not," and then I said, "I
don't let this go by," and he said that was all right
because we were by ourselves, and he left.
Q Was anyone else present?
A. No
Kennedy testified:
Q. Following the first half of this session, the
afternoon session, did you have occasion to talk with
Mr. Dirmaier?
A No, because like I said, we didn't finish. He had
to go to his building, so they left, and I don't
know-Keating and I stayed there and talked over what
had been said, like Step 2 hearers do.
Vic Fruehauf had assigned him as a step 2 hearer.
Q. Did you, following the second part of this
hearing have any conversation with Mr . Dirmaier?
A. No.
Q. What did you do following the second session?
A John and I stayed to write up the Step 2 hearing.
Q. On the morning of the second session , before it
took place, did you have any conversation with Mr.
Dirmaier?
A No.
Q. On the prior afternoon , that is, at the time of the
first half of this session , before the afternoon session,
did you have any conversation with Mr. Dirmaier?
A. No
Q Did you say to Mr. Dirmaier , either before or
after either part of these sessions, well, or words to this
effect , "You know I can't represent you as well as I
could if you were a District 50 member?"
A. No
Q. Did you say any words to that effect?
A No
Q. Did you say words to that effect during the first
half of this session?
A I didn' t state it at all to him.
Q. At any time?
A. No.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kennedy was present throughout the hearing and I could
observe his demeanor on and off the witness stand. As
noted herein, Kennedy did not deny making a number of
statements of borderline legality. I was impressed by his
categorical denial in this single instance , and must conclude
that the conversation as described by Dirmaier did not
occur.
4. Statements of Kennedy in April, 1969
Boyd T. May has been an electrician in the facilities
group at Rocky Flats since 1952. He has been a member of
I.B.E.W. for 35 years and has neverjoined District 50. May
testified that at the conclusion of the first step hearing on
his crew leader grievance, April 7, 1969:
There was at one time during the period we was there
and I think it was after Mr. Kissel (the foreman) left, in
fact I'm sure it was, Mr. Kennedy made the remark that
I couldn't expect too much by not being a member... .
Q. And again what was that comment that Mr.
Kennedy made to you after the meeting?
A. That non-paying members shouldn't expect too
much, words to that effect.
Kennedy was not questioned about his comment to May.
The statement, as reported by May, is too indefinite and
too ambiguous to support a finding that Section 8(b)(1)(A)
was violated thereby. J. Ziak & Sons, Inc., 152 NLRB 380,
382.
Henry Manning has been a painter in the facilities group
at Rocky Flats for over 13 years. He has been a member of
the Painters' Union for 24 years and has never been a
member of District 50. In April, 1969, while Manning's
regular steward was absent, Manning telephoned Kennedy
and asked him to come down to the paint shop. Manning
told Kennedy that there were nonpatnters doing painter's
work. Kennedy and Manning inspected the operation.
Manning testified:
I met [Kennedy] in the hallway and the first thing he
said was, "Are you a member of District 50?" 1 said
"No," and I said, " Bill, it doesn't matter whether I
belong to District 50 or not, District 50 won the right to
represent me," and he says, "It does make a difference."
And I told him if he come down there to argue with me
about joining District 50, he just as well go back. And
he said, "Well, I want to see what they are doing," and
we left and went around to where the work was being
done.
Kennedy testified that he told Manning that it looked like
painters' work and that he would tell the regular steward,
Virgil Owen, what he had seen. Kennedy denied making the
statement , "It does make a difference," testified that Union
was not mentioned in the conversation, and denied asking
the question. I credit Kennedy.
Charles R. Willis has been a painter in the facilities group
at Rocky Flats for 14 years, has been a member of the
Painters' Union for the same period of time and has never
joined District 50. Kennedy and Willis are both followers of
professional football and have frequent discussions.
Willis testified that while he was painting in the squad
room of the plant protection department in April, 1969,
Kennedy came through and:
The conversation was just between myself and Mr.
Kennedy, and I asked him if he knew how our job
evaluation was coming along because it had been a long
time . . . and his reply was that-he said, "How many
of your painters are members of District 50?" And I
said, "Two that I know of," and he said, "Well, you are
not going to get anything."
Q. Do you recall anything else that he said?
A. Yes, later in the conversation I asked him, I said,
"Well, we may not be able to do any good on this
evaluation, but if we submit a grievance, you are bound
to process them." ... his answer was that they did have
to process the grievance if we filed them, but the effort
that they put forth doing it was more or less up to them
Kennedy describing the same conversation testified:
Well, I asked him who we should trade to get a good
quarterback because Denver was in dire need of a good
quarterback, and he agreed with me .... During the
course of the conversation, he asked me, "How is the
job evaluation going for the painters?" and I said, "I
really don't know." ... he asked me who was on .. .
the job evaluation committee and I told him who was
on at that time, but I also told him that I really don't
talk with people too much about specific evaluation
because they have got so many going right now at that
time they were evaluating all of them. See, the painters
were below the line on the original evaluation, and it
was agreed that everybody below the line would be
evaluated.
Kennedy denied asking how many painters were in District
50 because "I know how many maintenance people are in
the Union, I don't have to ask anybody." Kennedy denied
making the other statement attributed to him by Willis.
Kennedy was not steward for the painters, and was not on
the job evaluation committee which was reviewing the
painters' rate. Kennedy's denial is credited.
5. Statements of Cash in April, 1969
Albert G. McGlachlm has worked as a maintenance
carpenter for 22 years. He was a member of the Carpenters
Union until 1968. He has worked in the facilities group at
Rocky Flats for 5 years and has neverjoined District 50.
John A. Cash is a journeyman machimst and has been
employed in the manufacturing group at Rocky Flats since
1961. Cash is financial secretary of Local, and steward in
the fabrication department. In April, 1969, when Cash was
on an errand in connection with United Way business, he
was stopped in the hallway by McGlachlin. McGlachlin
testified:
At that time I believe I had a grievance in, and I asked
Johnny how it was coming along, and he said, "Well, I
can't tell you because," he says, "I am not on the
grievance committee." But, he said that, "If you was a
member, why, you would probably get faster results on
your grievance."
On cross-examination McGlachlin affirmed the truth of a
pretrial affidavit wherein he stated:
I asked him how about my grievance against the tinners.
This was before it had been heard at the second step.
Cash said, "Well, I'm not on the grievance committee,
so I cannot tell you about it. But probably if you guys
would join, you would get better results."
ALLIED AND TECHNICAL WKRS . LOCAL 15440
Cash , describing the same conversation testified:
He asked me about the status of a grievance that he had,
and I told him I did not know. I also told him he should
see the grievance committee because I am not on it
Q. Did you say to him , or say words to the effect,
"If you were a union member , you would probably get
fast er results for your grievance?"
A No, sir.
Cash freely admitted that he had had other conversations
with McGlachlin in 1969 of which he had no present
recollection . I conclude that McGlachhn was confused,
that on some other occasion Cash reminded him that the
refusal of the majority of the facilities group tojoin District
50 weakened its bargaining position , and that McGlachhn
misinterpreted this comment. In any event , the substantial
difference between the words quoted in the pretrial
statement and the words quoted on the witness stand cloud
979
the testimony of McGlachlm with ambiguity and preclude
any finding of an 8(b)(1)(A) violation.
No testimony was offered in support of the General
Counsel's allegation that a similar remark was made by
Cash to an employee in May, 1969.
CONCLUSIONS OF LAW
1. Respondent International has not engaged in unfair
labor practices affecting commerce within the meaning of
Sections 8(b)(1)(A) and 2(6) and (7) of the Act.
2. Respondent Local has not engaged in unfair labor
practices affecting commerce within the meaning of
Sections 8(b)(1)(A) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
It is ordered that the complaint be, and hereby is,
dismissed.