Allis Chalmers Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1977

231 N.L.R.B. 1207 (N.L.R.B. 1977)

ALLIS-CHALMERS CORPORATION
Allis-Chalmers Corporation and Richard A. Salvador.
Case 13-CA- 15775
September 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 17, 1977, Administrative Law Judge Irwin
Kaplan issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy,2 and to adopt his
recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Allis-Chalmers Corporation, Harvey, Illinois,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph l(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
: In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior
to August 25. 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
:' In par. I(b) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "in any like or related manner."
rather than the broad injunctive language. "in any other manner," which the
Board traditionally provides in cases involving serious 8(aX3) discriminato-
rs conduct. See L.R.B. v. Entwistle Mfg. Co, 120 F.2d 532, 536 (C.A. 4,
194)1. We shall modify the recommended Order accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT condition the employment of
Richard Salvador upon his refraining from
serving as the Union's grievanceman.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed under Section 7 of the
Act.
WE WILL make Richard Salvador whole for any
loss of pay or other benefits he may have suffered
as a result of our discrimination against him, with
interest at the rate of 7 percent per annum.
WE WILL notify United Steelworkers of Ameri-
ca, Local 1091, in writing, with a copy to Richard
Salvador, that we have no objection to Salvador
serving as grievanceman.
ALLIS-CHALMERS
CORPORATION
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard in Chicago, Illinois, on February 3, 1977. The
charge was filed by Richard Salvador on September 3,
1976,1 and a complaint thereon issued on November 2
(amended at the hearing). The complaint and the amend-
ments thereto alleged that Allis-Chalmers Corporation
(referred to herein as Respondent, Employer, or Company)
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended, by conditioning Salvador's
reinstatement on his resignation as grievanceman. In its
answer duly filed (amended at the hearing), the Respon-
dent conceded, inter alia, certain facts with respect to its
business operations, and the supervisory and agency status
of individuals as alleged in the complaint, but it denied all
I All dates hereinafter refer to 1976 unless otherwise noted.
1207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations that it had committed any unfair labor
practices.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by counsel for General Counsel and
Respondent,3 I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, is engaged in the
manufacture of diesel engines at its facility in Harvey,
Illinois. During the past calendar year, Respondent, in
connection with the operations of its Harvey, Illinois,
facility, did a gross volume of business in excess of $1
million and sold and shipped goods valued in excess of
$50,000 to points directly outside the State of Illinois.
Respondent admits, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The Respondent admits, and I find, that United
Steelworkers of America, Local 1091, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
Richard Salvador, a machinist, has been employed by
the Employer for the past 13 years. The Employer and
Union have had a long history of collective bargaining
covering a series of collective-bargaining agreements, the
most recent of which by its terms is effective September 16,
1974, to and including midnight September 15, 1977. At
various times since 1969 Salvador has served as steward,
trustee, and grievanceman for the Union. The aforemen-
tioned positions are normally obtained by an elective
process. The most recent election for union office prior to
the instant charges was in April 1976. Salvador was I of 7
grievancemen elected serving a unit of approximately 740
employees. Prior thereto, Salvador had been appointed
grievanceman for a period in 1971 and 1972 and held the
position since 1973 pursuant to elections.
The contract contains a five-step grievance procedure,
the last of which is arbitration. The employee and union
steward are normally involved in the initial step of the
grievance procedure. The grievanceman pursuant to the
second step has the right to meet with the superintendent of
'The General Counsel's unopposed motion to correct the transcript,
dated March 4. 1977. is granted and received in evidence as G.C. Exh. 6.
:' The briefs herein were due on March 7. 1977. While General Counsel's
brief was timely filed. Respondent's brief was received by the Division of
Judges on March 8. Respondent's brief with attached certificate of service
was signed and dated March 4. Counsel for the General Counsel filed a
motion to strike Respondent's brief on the basis that it was untimely filed
and not received by the Regional Office until March 9. Counsel for
Respondent filed a response thereto asserting, inter alia. that Respondent
did not receive General Counsel's brief until March 8. In the circumstances
herein, and noting that the late filing of Respondent's brief did not cause
an) delay in the issuance of the Decision. I accept the brief of Respondent's
counsel and dens the General Counsel's motion to strike.
In relevant part, art. V, secs. 3 and 4 of' the most recent contract.
contain the following:
the Company to settle grievances not orally settled in the
first step. Grievancemen also participate in the third and
fourth steps of the aforesaid procedure. As grievanceman
Salvador is involved in approximately 12 to 16 grievances
annually. In this regard he has devoted approximately 15
to 30 hours a month inside and outside the facility, of
which approximately one-half is on company time4 and
one-half is on his own time. On June 8, 1976, Salvador was
terminated for sleeping on the job. At that time he was
employed on the third shift from 12 midnight to 7 a.m. He
filed a grievance concerning his termination which was
processed through several steps of the grievance procedure.
Salvador was reinstated on or about August 2, terminated
on August 4 a second time, and returned to work on or
about August 16 and was working at the time of the
hearing. On August 16 he submitted a letter of resignation
from his position of grievanceman to the Union. Later that
night Salvador was permitted to return to work and has
worked since. The General Counsel alleges that the
Employer conditioned reinstatement, inter alia, on Salva-
dor resigning his position as grievanceman. The Employer
on the other hand denies that it conditioned Salvador's
reinstatement on his resignation from the position of union
grievanceman, but rather that he was reinstated pursuant
to an agreement entered into voluntarily by Salvador with
the approval of the Union. The terms of the agreement
called for Salvador to give up employment elsewhere, his
schooling, and his grievanceman's position so that he could
work full time as a production employee. The Employer
asserts that it was concerned that Salvador was unable to
work full time because he was dissipating his energies in
areas unrelated to production.
Bruno Sendera, who has been employed by the Employer
for the past 36 years and was local union president in June
1976, testified in support of the allegations. According to
Sendera, on June 8 at approximately 8 a.m., he, along with
Robert Belcher, chairman of the grievance committee, and
Salvador met with company representatives concerning
Salvador's status but they were unable to resolve the
matter. After the aforesaid meeting Belcher and Sendera
went to see John Hamilton, manager of employee relations
for the Employer, in an unofficial but further attempt to
resolve Salvador's grievance. Sendera tried to convince
Hamilton that Salvador's conduct on the morning of June
8 was not a dischargeable offense and asked Hamilton to
reinstate him. Hamilton stated that the only way he would
consider reinstating Salvador would be for him to be
confined to the shop area and not perform as grievance-
man. Hamilton concedes meeting with Sendera and
The Union Grievance Committee, the Bargaining Committee, the
Stewards and the employe in meeting with the representatives of the
Company, the time shall be counted as hours worked in determining
overtime pay. The Union Grievance Committee, Stewards and employe
will be paid the earnings ofjob grade one within the bargaining unit for
all time lost when meetings are held at the request of the Company.
Section 4. Any member of the Union Grievance Committee, Union
Steward, or Union Officer, shall have the nght to visit departments
other than his own at all reasonable times for the purpose of transacting
the regular business of the Union, provided that they have notified their
supervisor or another person designated. Upon returning to the job.
such employes shall report to their supervisor or another person
designated.
1208
ALLIS-CHALMERS CORPORATION
Belcher in his office on June 8, but all that he said therein is
that he would not reinstate Salvador. Hamilton attended
on June 9 a second unofficial meeting with Union
Representatives Sendera and Belcher and Paul Markonni,
International representative. Michael Roberts, union rela-
tions representative, was also in attendance on behalf of
the Employer. The June 9 meeting was called by Markonni
in order to learn more about the circumstances surround-
ing Salvador's termination and to determine whether the
Company was going to modify its position regarding the
termination. The next official meeting took place on June
28. This meeting was on the International level and was the
fourth step of the grievance procedure. Markonni, accord-
ing to the testimony of Hamilton and Roberts, agreed that
Salvador more than likely overextended himself and was
not in a position to do his job at the time he was caught
sleeping. He then asked them whether the Company would
consider reinstating Salvador if he was in a position where
he was able to perform his job fully. The Company
responded in writing by letter dated July 2, 1976, wherein
in pertinent part it reads as follows:
Perhaps it can be stated that Mr. Salvador's termina-
tion can be attributed to the fact that he attempted to
hold two different jobs and continue his education at
the same time. If so, we are willing to listen to a
proposed schedule of Mr. Salvador's activities which
would include full-time employment at Allis-Chalmers'
Engine Division. If such a schedule could be agreed
upon and a firm commitment made, we would consider
Mr. Salvador for reinstatement with all time off
considered as disciplinary layoff and a final warning
for any underlined offenses placed against his record. 5
The parties met again on July 27 regarding Salvador's
grievance. Markonni opened this meeting by stating that
Salvador had informed him that he quit school, was cutting
back his hours of outside work, and was going to resign as
union grievanceman. The Company responded by taking
the position that if Salvador would do all that he told
Markonni he would do the Company would consider
reinstating him, but that the Company wanted to hear this
from Salvador who was not at the meeting on July 27. The
parties conducted another meeting 2 days later, but this
time Salvador was in attendance. According to Salvador,
Hamilton stated at this meeting that the Company was
willing to take him back but only on a full-time basis. Thus
Hamilton pointed out to Salvador that he must not have
another job, go to school, "and that other thing. Give up
that other thing." The Company then left the room while
the Union considered the conditions. Markonni turned to
Salvador and asked him if he understood what Hamilton
wanted him to do. Salvador told Markonni that he knew
that the Employer wanted him to give up his grievance job.
Markonni told him that he would have to decide, but that
if the matter went to arbitration it would take a long time.
Salvador told Markonni that he didn't have any choice and
that he would resign. When the company officials returned
to the room Markonni told Hamilton that Salvador
"G.C. Exh. 2.
" G.C. Exh. 3.
7 Foreman replaced Sendera as the local union president on or about
June I I
understood what had to be done. Hamilton responded that
Salvador could be back at work Sunday night but pointed
out to Markonni to make certain that Salvador understood
what was said and that Markonni should make certain that
the other matter was taken care of. Ronald Martin, union
recording secretary and grievance committeeman, also
attended the July 29 meeting. He testified that it was his
understanding that the Company wanted Salvador to
resign as grievanceman. According to Hamilton and
Roberts, Markonni repeated what he had stated on July 27,
that is, that Salvador had quit his schooling, that he was
going to reduce his outside employment to only part-time
work, and that he also intended to resign as grievanceman.
Hamilton then asked Salvador if what Markonni said was
true, to which Salvador replied in the affirmative.
Salvador testified that, on or about July 3, Markonni
called him to his office and showed him the letter from
Hamilton to Markonni dated July 2, referred to previously
regarding certain conditions which would have to be met
before the Company would consider reinstating Salvador.
While there is no reference therein to Salvador's position as
grievanceman, it does state that he would have to curb his
activity and be available for full-time employment. Ac-
cording to Salvador, Markonni showed him the reference
in the letter to full-time employment and remarked, "You
have to give up your grievance job. That's what they want."
This, Salvador refused to do at that time. On a number of
occasions during the month of July, Markonni reiterated
the conditions under which the Company would reinstate
Salvador, including his resignation as grievanceman.
Salvador states that it was not until the July 29 meeting
that he agreed to resign for the first time and indicated he
was willing to put it in writing. On July 30 Salvador had his
wife give Union Recording Secretary Martin the following
letter: 6
July 30, 1976
To Whom It May Concern:
Effective July 30, 1976, I do hereby resign my
position as Grievanceman for the United Steel Workers
of America.
Sincerely yours,
Richard A. Salvador
Salvador returned to work on August 2 and worked the
midnight to 7 a.m. shift. He notified the Company that he
was sick and could not work on August 3. On August 4
Salvador met Martin and Richard Foreman, the local
union president,7 and was told by them that his letter of
resignation was unsatisfactory and was not what the
Company wanted. Martin gave Salvador a letter containing
language which he asserted was acceptable to the Compa-
ny.8 The letter read as follows:
x G.C. Exh. 4.
1209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 30, 1976
United Steelworkers of America Local Union #1091
Effective July 30, 1976, 1 do hereby resign my
position as grievanceman and other Union positions for
the remainder of the election period as covered by the
By-Laws. I do this because of personal reasons.
Sincerely yours,
Richard A. Salvador
Salvador objected to signing the new letter. Martin told
Salvador that if he refused to sign the letter he could forget
about working that night because the Company would fire
him again. According to Martin, he and Foreman showed
Salvador's letter of resignation to Roberts. Martin testified
that Roberts rejected the letter and remarked, "This isn't
what he agreed to, as far as resignation." According to
Martin, Roberts wanted Salvador to agree not merely to
resign at that time but to agree not to run for the remainder
of his term which was due to expire in 1979. His resignation
would create an opening for a grievanceman and a new
election would have to be held. The Company did not want
him to be a candidate for grievanceman in the new
election. Roberts concedes seeing the letter but denies that
there was any discussion thereto. Martin further testified
that he and Foreman went to Markonni and showed him
Salvador's letter and informed Markonni of Roberts'
reaction thereto. Markonni also expressed that Salvador's
letter of resignation did not meet the terms of the
agreement and he, Markonni, had a letter made up that
would conform to the agreement with the Company. The
aforesaid letter is the letter that Martin urged Salvador to
sign on August 4 which he refused to do. Salvador testified
that at approximately 11:55 p.m., August 4, he went to
work and discovered that his timecard was missing from
the rack. A. Anderson, night-shift superintendent, and Leo
Wajslaw, Salvador's immediate supervisor, were at the rack
and they told Salvador that he could not work that night.
He asked if the reason was because he refused to sign the
(resignation) letter. Wajslaw responded affirmatively, and
added, "Take care of that matter before returning to
work." According to Hamilton, Wajslaw informed him on
Wednesday, August 4, at approximately 7:45 a.m., that
while Salvador had quit school he, Salvador, still intends
Wajslaw to regard him as grievanceman. As far as
Hamilton was concerned, as Salvador was not abiding by
the terms of the agreement, there was no longer any
agreement. Therefore he instructed Wajslaw not to let
Salvador punch in and to terminate him.
On Friday, August 13, Salvador visited Markonni and
asked him whether he should sign the resignation letter.
G.C. Exh. 5.
"' Hamilton was asked by counsel for Respondent to relate in
chronological sequence what was said by company and union representa-
tives concerning Salvador's reinstatement. However, Hamilton did not make
any reference to the critical June 8 "unofficial" meeting with Sendera and
Belcher until asked on cross-examination. This meeting was critical because
it revealed Hamilton's state of mind vis-a-vis Salvador resigning as
grievanceman as early as June 8, the day he was discharged. According to
Hamilton. Sendera and Belcher merely wanted to know whether the
Markonni told him that it was the only way he could return
to work. Markonni then dictated a statement which
Salvador wrote down and signed.9 Markonni told Salvador
that he would be playing golf with Hamilton the next day
and would inform him that he, Salvador, signed the letter.
On Sunday, August 15, Markonni called Salvador and told
him that Hamilton would accept the letter and that a
meeting with regard to his status would be held on
Monday. On Monday, August 16, at approximately 8:15
a.m. Salvador gave the signed handwritten letter, which
was written in Markonni's office the previous Friday, to
Martin at the Employer's facility. Later that morning Local
Union President Foreman called Salvador and told him
there would be a meeting that afternoon and asked
Salvador whether he could make it. Salvador answered that
he could attend the meeting. That afternoon Salvador
attended a meeting with union and company officials
which included International Representative Markonni
and Company Officials Hamilton and Roberts. Hamilton
reiterated that Salvador must remember that full employ-
ment meant that he must be by his machine 7 hours a day.
That night Salvador went back to work and was still
working at the time of the instant hearing.
B. Discussion
At the outset it is noted that the reason for the discharge
on June 8 is not an issue herein. What is in dispute is
whether the Respondent conditioned Salvador's reinstate-
ment in whole or in part on his resignation as grievance-
man. Respondent asserts that Salvador had overextended
himself and it merely wanted assurances that he would
engage in full-time employment before it would consider
reinstating him. Thus it agreed to reinstate Salvador at the
July 29 meeting when Salvador, with the Union's approval,
agreed to quit school, curb his outside employment, and
resign as grievanceman. Respondent avers that it reinsti-
tuted the termination only when Salvador reneged on his
agreement to curb his outside employment and resign as
grievanceman. He apparently quit school as he had
promised to do. Respondent denies that it insisted that
Salvador resign as grievanceman, but rather it contends
that it was Salvador who volunteered to take certain steps
including resigning as grievanceman so that he could
engage in full-time employment. According to Respondent,
Salvador was permanently reinstated on August 16 only
when it was satisfied that Salvador had freed himself of
outside activities so that he could work full time. The
evidence, however, does not support Respondent's posi-
tion. There is substantial evidence in the instant record
tending to demonstrate that Respondent made resignation
a condition for reinstatement. In this connection, Bruno
Sendera, former local union president, credibly testified10
that on June 8, the day Salvador was terminated, he,
Company would take Salvador back, and they received a negative answer
from him. Sendera, on the other hand, testified that the meeting with
Hamilton was lengthy. According to Sendera, he and Belcher did not ask to
see Hamilton merely to determine what the Company was going to do but
rather to urge Hamilton to give Salvador another chance. Sendera pointed
out to Hamilton that at the time Salvador was allegedly caught sleeping he
was at his machine and, therefore, Salvador was not cheating on the
Company. Sendera voiced the opinion that Salvador was not engaged in a
dischargeable offense. In view of Salvador's status as a union grievanceman,
1210
ALLIS-CHALMERS CORPORATION
Sendera, as local union president, and Bob Belcher,
chairman of the grievance committee, met with Hamilton,
manager of employee relations for Respondent, in a further
attempt to get Salvador reinstated immediately. The
aforementioned union officials met earlier that day with
lower line company officials, and their answer regarding
reinstatement was pending while Sendera and Belcher
made an unofficial plea to Hamilton on Salvador's behalf.
Sendera credibly testified that Hamilton told them that the
only way he would consider taking Salvador back would be
for him to resign from his union activities and be confined
to an area where he wouldn't have the right to roam the
shop as grievanceman. Hamilton did not say anything
about Salvador's outside activities, i.e., outside job or
schooling. According to Hamilton, the first time the subject
of Salvador resigning as grievanceman came up was at a
meeting called for by Markonni on July 27. Hamilton
testified that Markonni informed the company representa-
tives that Salvador was begging for his job, that he quit
school, was willing to cut back on other job activities, and
had volunteered to resign as grievanceman. Hamilton
responded, "If he is willing to do those things that we
would accept him to be reinstated." Indeed, the July 29
meeting was called only for the purpose of having Salvador
give assurances personally to the company representatives
that he "understood the conditions under which he was coming
Jack. " (Emphasis supplied.) Thus, resignation as grievance-
man was linked with quitting school and reducing outside
employment as conditions precedent to reinstatement.
According to Hamilton and Roberts, Markonni reiterated
at the July 29 meeting what he had said at the July 27
meeting, including the fact that Salvador was resigning as
union grievanceman. Hamilton reinstated Salvador only
after Salvador agreed to the terms as expressed by
Markonni. In contrast, Salvador credibly "I testified that it
was Hamilton rather than Markonni who first alluded to
"resignation" by pointing out that he expected Salvador to
be a full-time employee and "Give up that other thing."
Salvador testified further that after the company represen-
tatives left the room the Union caucused. As Markonni
it would appear likely that the local president and chairman of the grievance
committee would have devoted more time and effort in securing Salvador's
reinstatement than attributed to them by Hamilton. Thus it appears that
Sendera's account is more plausible than that provided by Hamilton.
Further, Sendera. an employee of Respondent for 36 years in good standing,
with no apparent direct interest in the outcome, appeared forthright and
responsive, and I find his testimony is worthy of belief On the other hand,
on the basis of the foregoing and other reasons delineated infra and
demeanor, I find Hamilton's testimony in critical areas to be unconvincing
and unreliable.
" Salvador's testimony in cntical areas was largely uncontradicted. Thus
his uncontradicted testimony disclosed that, at the start of the midnight shift
on August 5. Wajslaw, Salvador's immediate supervisor, pointed out to him
that he could not work unless he signed the proper resignation form. The
fact that Wajslaw. an admitted statutory supervisor, did not testify reflects
adversely on Respondent. Further. Salvador's testimony relating to the
various conversations with Markonni was uncontradicted. Counsel for
Respondent in his bnef argues that General Counsel's failure to call
Markonni supports an inference that Salvador's resignation was solely an
intraunion matter. I find otherwise. General Counsel established a prima
fiwie case, inter alia, with Sendera's credible testimony that on June 8
Hamilton told him that he would only consider taking Salvador back if he,
Salvador, resigned as grievanceman. Thus it would appear that at least it
was as much in Respondent's interest as General Counsel's interest to call
Markonni as a witness. Still further, Salvador's testimony in material
respects was consistent with that given by Martin. In view of the foregoing
had on prior occasions made it clear to Salvador that the
Company would take him back only if he resigned as
grievanceman, he relented and asked to resign. Union
Recording Secretary Martin, who attended the July 29
meeting, credibly testified he understood that the Compa-
ny's reference to "full-time employee" was for Salvador to
give up his grievance job and to submit a letter of
resignation. Martin's testimony further tends to support
Salvador's account of what transpired at the July 29
meeting. Salvador submitted a letter of resignation on July
30.12
The events of August 4 demonstrate even more poignant-
ly that resignation was a condition precedent to Salvador's
continued employment. In this regard, Salvador credibly
testified that at approximately 7 a.m. on August 4 Union
Recording Secretary Martin told Salvador that his letter of
resignation was not satisfactory to either the Company or
Markonni, and he handed Salvador a letter which he,
Martin, stated was what they wanted. Salvador objected to
the content of the letter and refused to sign. Martin warned
Salvador if he refused to sign there would be no purpose in
his going to work that night because he would be fired. At
that time Local Union President Foreman approached
them and Salvador inquired of him as to why he had to
sign the letter. Foreman told him that he had nothing to do
with it but that's the way the Company and Markonni
wanted it done. According to Hamilton's uncorroborated
testimony, Salvador is alleged to have stated to Wajslaw'3
that he did not have to cut back on his outside job, that all
he had done was quit school and that he, Salvador, would
be dealing with Wajslaw as grievanceman. As far as
Hamilton was concerned there was an agreement which
included Salvador's resignation as grievanceman, and
Salvador was not living up to the terms of the agreement.
He immediately told Wajslaw not to let Salvador punch in
but to terminate him. Hamilton took this action without
attempting to contact Markonni or questioning Salvador as
to why he was reneging on the agreement.
This failure to do so reflects adversely on Hamilton's
motive. It was Markonni who informed Hamilton that
demeanor and the record as a whole. I credit Salvador's testimony in all
material respects.
12 As previously noted, Union Recording Secretary Martin testified that
he, in the presence of Local Union President Foreman, showed Salvador's
letter of resignation to Roberts. According to Martin, Roberts remarked
that "this isn't what he agreed to, as far as resignation," and then pointed
out what would be satisfactory to the Company. Roberts, on the other hand,
testified that Martin came into his office and asked him if he knew where
Local Union President Foreman was because he had Salvador's resignation.
Roberts asserts that he merely glanced at the letter and did not involve
himself otherwise in any discussion concerning Salvador's resignation.
Roberts testified that he did not inform his supenor, Hamilton, of the
resignation. However, Hamilton testified that he would expect Roberts to
inform him of any conversation relative to Salvador's resignation. In this
regard, one would expect Hamilton to be concerned with Salvador's
resignation as it would be consistent with Hamilton's position on June 8
when he told Sendera that he would only take Salvador back if he resigned
as union grievanceman. No explanation was offered as to why Roberts
failed to inform Hamilton of the matter. In view of the history surrounding
the disputed resignation, Roberts' attempt to treat the incident with Martin
and Foreman regarding the resignation letter as inconsequential is not
credible. In these circumstances I find Roberts' account of what transpired
with Martin to be unconvincing. On the other hand I credit the testimony of
Martin in all material respects.
13 Wajslaw. an admitted statutory supervisor. was not called upon to
testify by Respondent.
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salvador had come to him because he had to have his job
back and was willing to cut back all outside activities in
order to be reinstated. According to Hamilton, Markonni's
word is his bond and he believed that Markonni accepted
his word on the same basis. Yet I week later Markonni
telephoned Hamilton and informed him that Salvador was
begging for his job and that he had Salvador's resignation
in his hand. Hamilton did not remind Markonni that
Salvador begged for his job once before and he had failed
to live up to his agreement. No, he simply tells Markonni
that if he, Markonni, is satisfied that Salvador will live up
to the original conditions, he can return to work. Thus
Hamilton's denial that he was not primarily interested in
Salvador's resignation as grievanceman is unconvincing.
Salvador's uncontroverted testimony, on the other hand,
reveals that he appeared at the Respondent's facility at
approximately 11:55 p.m. on August 4, just prior to
commencing his employment on the midnight or third
shift, and discovered that his timecard was missing from
the rack. The night-shift superintendent, Anderson, and
Leo Wajslaw, Salvador's immediate supervisor, were
standing near the rack. Wajslaw pointed out to Salvador
that he could not work until he signed the resignation
letter. Salvador was reinstated on August 16, but only after
he signed a letter of resignation in the form which was
satisfactory to the Company. It was undisputed that he had
long before quit school. Thus, aside from resigning as
grievanceman, the only other condition was the matter of
outside or part-time employment. Yet the record is
conspicuous by the absence of probative testimony
regarding outside employment. The record does not reveal
the names of other employers Salvador allegedly worked
for or to what extent he agreed to cut back his outside
work. The record is devoid as to the nature of the
assurances Salvador gave Respondent concerning outside
employment. Thus it appears that Salvador was reinstated
only because he resigned effectively as grievanceman. In
his brief, counsel for the Respondent relies heavily on the
fact that Respondent did not expressly state at the meeting
of July 29 that Salvador must give up his grievance job.
According to Respondent, Salvador's resignation was
solely an intraunion matter. However, Sendera credibly
testified, over Respondent's objection,'4 that Hamilton
expressly told him on June 8 that the only way that he,
Hamilton, would consider giving Salvador his job back
would be for Salvador to resign from all his union activities
so that he could be confined to an area where he wouldn't
have the right to roam the shop as grievanceman. Further,
Salvador's uncontradicted testimony reveals that Wajslaw,
an admitted supervisor, told him that he could not work
unless he signed the proper resignation letter. While it is
conceded that Hamilton did not expressly state at the July
29 meeting that Salvador had to resign as union grievance-
man, it is noted that there is more than one way to skin a
cat. Thus Hamilton, who has been manager of employee
14 Counsel for Respondent in his brief renews his objection to Sendera's
testimony regarding the June 8 session with Hamilton on the basis that it is
outside of the scope of pleadings. It is noted that the complaint does not
allege the aforesaid meeting as the basis of a separate violation and,
accordingly, I deem it unnecessary to make a finding in this regard.
However, the testimony was admitted over objection as evidence tending to
show motive or state of mind. It has long been held that evidence reflecting
relations for Respondent the past 4 years and an experi-
enced labor relations representative, displayed a degree of
sophistication and subtlety by pointing out to Salvador
that he must not have another job, go to school, "and that
other thing. Give up that other thing." Hamilton was astute
enough not to guarantee the filing of charges by insisting
expressly, in a room full of labor relations people, that he
must give up his grievance job. In these circumstances,
noting particularly that Respondent concedes it had an
agreement which included resignation, I find that Respon-
dent's contention that it was merely concerned with
Salvador's full employment in a context unrelated to
Salvador's duties as grievanceman unpersuasive. Further-
more, it is noted that it is physically impossible for one to
work full time, be restricted to one's work area, and yet
function as a grievanceman. In this regard, Salvador
testified that he devotes 15 hours a month on company
time in processing grievances. According to Respondent,
other grievancemen devote even more time in processing
grievances. The foregoing further serves to underscore that
resignation as grievanceman was implicit in Respondent's
reference to full-time employment. Accordingly, I find that
Respondent conditioned Salvador's reinstatement, inter
alia, on his resigning as union grievanceman.
C. Conclusion
Having previously concluded that Respondent condi-
tioned Salvador's reinstatement on his resignation as
grievanceman, it remains to be determined whether
Respondent in doing so violated the Act. While Respon-
dent denies that it insisted that Salvador had to resign his
grievance position, it does concede that it required him to
agree to be confined to his work area and to work full time
on production. In Warner Gear Division, Borg-Warner
Corporation, 15 a case involving the company's refusal to
promote a shop steward because he was unwilling to give
up his union office, the Board affirming a Trial Examiner
(now known as Administrative Law Judge) found that the
employer's desire for its employees to devote all of their
production time to their work was a lawful policy. While
the Board has not expressly overruled Warner, it has given
it limited application. Thus in Cameron Iron Works, Inc., 16
wherein an employee had to decide between being a
leadman and a steward or face demotion, the Board found
a violation and expressed the following:
It will be apparent from this discussion that we feel
constrained to give narrow application to the holding of
Warner Gear. Employees' statutory rights should not be
diluted in the absence of compelling evidence that other
considerations require such limitations. Even then, only
such limitations as appear to be reasonable and
necessary to accommodate those considerations can be
permitted. Where the facts, as here, indicate that much
less restrictive measures could have preserved the
on motive is admissible. See Darlington Manufacturing Company, et al., 165
NLRB 1074, 1079, fn. 8 (1967); Edwards Brothers, Inc., 95 NLRB 1451,
1452, fn. 2 (1951); cf. U.S. Rub3er Company, 93 NLRB 1232, 1233, fn. 2
(1951). Accordingly, I hereby reaffirm my previous ruling.
is 102 NLRB 1223(1953).
If 194 NLRB 168(1971).
1212
ALLIS-CHALMERS CORPORATION
freedom of employees and their union to designate a
steward, we are unwilling to find that the Act permits
the employer to impose the drastic measure of condi-
tioning Baker's selection upon his acceptance of a
demotion. [Emphasis supplied.]
The Board had in Freezer Queen Foods, Inc., 17 occasion
to apply the foregoing principles to a contractual prohibi-
tion against leadmen serving as stewards. The record
therein revealed, inter alia, that the parties were concerned
about conflict of interest problems. Aside from the reasons
delineated therein regarding the need for leadmen to be at
the production line at all times, the parties expressed
mutual concern about conflict of interest problems.
Leadmen were prime candidates for supervisory positions
and the Union regarded them as management oriented.
The Board dismissed the complaint therein because it
expressly found "compelling evidence" of legitimate
considerations tojustify the contractual restrictions.
More recently, the Board 1 found the Respondent's
refusal to recall a union shop steward and its subsequent
recall conditioned upon his refraining from serving as the
union steward violated the Act and concluded the
following:
In these circumstances, we conclude that both
Respondent's asserted reasons for refusing to recall
Blake and its subsequent conditional recall of Blake
were of an arbitrary, if not pretextual, nature, falling far
short of any compelling justification 3ased upon legiti-
mate considerations. [Emphasis supplied.]
An examination of the instant record reveals a dearth of
factors tending to justify Respondent's action. The record
does not disclose, nor does Respondent contend, that
Salvador's duties as grievanceman interfere with his
responsibilities as a production employee. According to
Hamilton, Salvador's activities in pursuing grievances were
much less than other grievancemen. In these circumstances
and the record as a whole, I find that Respondent failed to
demonstrate any compelling justification based on legiti-
mate considerations to condition Salvador's reinstatement
on his resigning as grievanceman. I further find that the
natural and foreseeable consequence of Respondent's
unlawful conduct was to discourage active membership in
the Union by its employees and particularly to discourage
employees from serving as grievancemen on behalf of the
Union, thereby violating Section 8(a)(3) and (1) of the
Act. '19
III. THE REMEDY
Having found that Respondent, from July 30, 1976, has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act by
conditioning the reinstatement of Salvador on his resigning
7 215 NLRB63811974).
I Dravo Corporation, 228 NLRB 872 (1977).
' See ANortheast Constructors, Division of Cives Corp.. 198 NLRB 846, fn.
21 (1972): Drata Corp., supra
20 It is noted that Sal'ador returned to work permanently the night of
August 16. 1976.
"2 See Drau, Corporation, supra.
as union grievanceman, I shall recommend that it cease
and desist therefrom and from any like or related conduct
hereafter. I shall also recommend affirmatively that
Respondent make Richard Salvador whole for any loss of
earnings he may have suffered during the aforesaid
period2O as a result of the discrimination against him, less
his net earnings during that period, with backpay and
interest to be computed in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumling & Heating Co., 138 NLRB 716 (1962).
Additionally, I shall recommend that Respondent notify
the Union, in writing, with a copy to Salvador, that it has
no objection to his serving as union grievanceman. 2 1
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By conditioning the reemployment of Richard
Salvador from on or about July 30 upon his resignation as
grievanceman for the Union, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 22
The Respondent, Allis-Chalmers Corporation, Harvey,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Conditioning the reinstatement of Richard Salvador
upon his refraining from serving as union grievanceman.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act.
(a) Make Richard Salvador whole for any loss of pay or
other benefits he may have suffered as a result of the
discrimination against him in the manner set forth in the
section hereof entitled "The Remedy."
(b) Notify United Steelworkers of America, Local 1091,
in writing, with a copy to Richard Salvador, that it has no
objection to Salvador serving as union grievanceman.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due, as herein provided.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall he
deemed waived for all purposes.
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its facility at Harvey, Illinois, copies of the
attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the Respondent's
authorized agent, shall be posted by it immediately upon
receipt thereof, and be maintained by the Respondent for
60 consecutive days thereafter, in conspicuous places,
2.: In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1214