Anaconda Aluminum Co.

National Labor Relations Board - Board Decisions

Jul 1, 1966

160 N.L.R.B. 35 (N.L.R.B. 1966)

ANACONDA ALUMINUM COMPANY 35
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of their rights to self-organization, to form, join, or assist
the above-named or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL bargain, upon request, with the above-named labor organization as
the exclusive bargaining representative of all employees in the bargaining unit
described below with respect to wages, hours of employment and other terms
and conditions of employment, and if an understanding is reached embody such
understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees, employed in our Evansville,
Indiana, plant, exclusive of all office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL offer Dorothy Hale, Wanda Rider, and Harold Vincent immediate
and full reinstatement to their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges.
WE WILL make whole Michael Benedict, Clara Culver, Carroll Gerbig, Doro-
thy Hale, Connie Hargett, Linda Kempf, Martha Leer, David Nurrenbern,
Donald Raymond, Shirley Riggle, Wanda Rider, Ralph Starkey, Lawrence
Stinson, and Harold Vincent whole for any loss of pay they may have suffered
as the result of the discrimination against them.
All employees are free to become or remain, or to refrain from becoming or remain-
ing, members of any labor organization.
NOTE.-Notify Dorothy Hale, Wanda Rider, and Harold Vincent if presently serv-
ing in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act, and the Universal Millitary
Training and Service Act, as amended, after discharge from the Armed Forces.
CLARK PRODUCTS, INC., SUBSIDIARY OF NOPco CHEMICAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Itepresentative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 614
ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone
ME3-8921.
Anaconda Aluminum Company and Aluminum Workers Trades
Council . Case 19-CA-3179. July 1, 1966
DECISION AND ORDER
On May 9, 1966, Trial Examiner James T. Barker issued his Deci-
sion in the above-entitled case, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
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 [Members Fanning, Brown, and Zagoria].
160 NLRB No. 7.
36 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.']
MEMBER BROWN, dissenting :
Unlike my colleagues, I do not believe that the Board should invoke
its remedial powers in this case; for, in my view, the conduct in issue
falls within that class of internal plant disputes Which are more suit-
ably adjusted through the parties' agreed-upon grievance settlement
procedures.
1 The Recommended Order, apparently inadvertently, omitted reference to the Respond-
ent's place of business as Columbia Falls, Montana
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon an initial charge filed on July 12, 1965,' and an amended charge filed on
August 20, 1965, by Aluminum Workers Trades Council, hereinafter called the
Union, the Acting Regional Director for Region 19, on October 14, 1965, issued a
complaint and notice of hearing alleging violations of Section 8(a)(1) and (5) of
the National Labor Relations Act, hereinafter called the Act.
Pursuant to notice a hearing was held before Trial Examiner James T. Barker
at Kalispel, Montana, on December 14, 1965. All parties were represented at the
hearing and were afforded full opportunity to be heard, to introduce relevant evi-
dence, to present oral argument, and to file briefs with me. The parties waived
oral argument and on February 1 filed briefs with me. Upon consideration of the
entire record and the briefs of the parties, and upon my observation of the wit-
nesses, I make the following: - -
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Montana corporation engaged at Columbia Falls,' Montana, in
the reduction of aluminum. The Respondent annually has a gross income exceed-
ing $500,000; annually purchases and receives from sources outside the State of
Montana goods and supplies valued in excess of $50,000; and annually sells and dis-
tributes to customers located outside the State of Montana products valued in excess
of $50,000.
Upon these admitted facts I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce, and in an operation affecting
commerce, within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Aluminum Workers Trades Council is admitted by Respondent to be a labor
organization within the meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that at all times since December 1, 1955, the Union has
been the duly certified and exclusive collective -bargaining representative of em-
1 Unless otherwise specified , all dates refer to 1965
ANACONDA ALUMINUM COMPANY 37
ployees in a production and maintenance unit of Respondent's employees employed
at Columbia Falls, Montana; that on or about October 22, 1963, the Respondent
and the Union executed a collective-bargaining agreement, effective from October 15,
1963, through October 14, 1965, applicable to employees in the above-described unit,
which agreement prescribed a procedure whereby said employees might bid for job
vacancies occurring in the said unit; that on or about July 1, 1965, and at various
times thereafter, the Respondent threatened to discharge, and on or about July 6,
1965, did discharge, employee Darrell Choate because he sought benefits under the
job-bidding provisions of the aforesaid agreement; that on or about May 1, 1965,
the Respondent instituted changes in the job-bidding procedure in effect under the
October 1963 agreement, aforesaid; and that on May 1, and various times there-
after, the Respondent bargained directly and individually with employees in the
appropriate production and maintenance unit concerning the employees' right to
use the job-bidding procedure in effect under the 1963 contract.
The General Counsel contends that the discharge of Darrel Choate violated
Section 8(a) (1) of the Act, and that the unilateral changes in the job-bidding proce-
dures of the 1963 contract, and the individual bargaining with employees concern-
ing their rights thereunder violated Section 8(a)(5) of the Act.
Respondent, on the other hand, contends that the General Counsel failed to sus-
tain his burden of proof in establishing that the discharge of Darrel Choate was
unlawful and was for a reason other than that he was an undesirable employee.
Further, contends Respondent, the General Counsel failed to prove that Dariel
Choate engaged in concerted activity. The Respondent further affirmatively con-
tends, with respect to Choate's discharge, that in invoking the job-posting provisions
of the 1963 agreement, Choate acted solely on his own behalf, and that, as a con-
sequence, relief should be denied under the instant complaint because the collective-
bargaining agreement between the Respondent and the Charging Party provided
an adequate grievance and arbitration procedure available to Choate.
With respect to the alleged violations of Section 8(a)(5) of the Act, the Re-
spondent contends that the General Counsel failed to introduce evidence sufficient
to establish that a change in the pertinent contractual provision was in fact made.
Moreover, the Respondent asserts that the evidence adduced by the General Counsel
with respect to direct and individual bargaining was not of a caliber and character
sufficient to sustain the General Counsel's burden of showing illegal action on
the part of the Respondent.
B. Pertinent facts
1. Controlling contractual provisions
The evidence of record reveals that at times material prior to the discharge of
Darrel Choate, the Respondent and the Charging Party were parties to a collective-
bargaining agreement effective from October 15, 1963, to October 14, 1965, inclu-
sive. Article 5, section 6 of that agreement provides as follows
There are six (6) departments in the plant-Potlines, Casting Plant, Service,
Warehouse, Electrical Maintenance and Mechanical Maintenance. In the Elec-
trical Maintenance, Mechanical Maintenance and Groups 2 and 3 of Service,
seniority will be governed by recognized craft classifications.
Vacancies which occur in the Electrical Maintenance, Mechanical Maintenance
and Groups 2 and 3 of Service will be filled by employees eligible to make
department transfers and having (a) seniority (b) substantiated experience
and (c) qualify in suitable aptitude tests.
When a vacancy occurs in a production department, the job with the shift and
rate of pay indicated for information, shall be posted in that department. The
period of posting shall be five (5) days. The position shall be awarded on the
following basis:
1. Longest department seniority of employees signing bid.
2. Ability to perform work.
If no eligible applicant signs the department poster, the job shall be awarded
by promoting the laborer with the least departmental seniority to the vacant
position. In the event, after a reasonable trial on the job, the employee cannot
fulfill the requirements of the job, he shall be removed and returned to his
old job assignment, and such job re-posted.
The employee may bid down or across grade only once in a three (3) month
period.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The employment history of Darrel Choate
At the time of the hearing in the instant matter, Darrel Choate was a graduate
student at the University of Montana in Missoula, Montana. During the summer
months, Respondent employs individuals as summer replacements for the purpose
of augmenting its staff during months of generally accelerated production activity
and of temporarily replacing regular employees during their vacation periods In
this capacity, the summer replacements perform the same work tasks as are per-
formed by the permanent full-time employees whom they temporarily replace.
During the summers of 1962, 1963, and 1964, Choate had worked in the employ
of Respondent as a summer replacement. In mid-June 1965, Darrel Choate re-
turned to the employ of Respondent and worked in the potlines, replacing men on
vacation. He worked in this capacity until July 6, when he was discharged.
Approximately 9 days prior to Choate's termination, on June 28, a bid sheet was
posted for a job opening as a control man on the day shift in the potlines depart-
ment. Darrel Choate bid the job, as did four other employees. Choate and two
others had departmental seniority dating from June 14. Ronald Skare, the employee
to whom the job was ultimately awarded, and unlike Darrel Choate, a regular
employee, had departmental seniority dating from June 21, as did C. A. Dumay,
one of the unsuccessful bidders.2
3. The events of July 6
On the morning of July 6, Choate was told by his foreman, Al Steel, to contact
Louis Cart, whom Choate identified as the hiring-firing manager at the plant. Choate
spoke with Cart and Cart informed Choate that it was against company policy for
summer laborers to bid jobs. Accordingly, he asked Choate to scratch his name
from the bid sheet. Choate stated to Cart his belief that it was his right to bid
the job.3 Cart informed Choate that they would talk about the matter later, and the
conversation ended.
Subsequently, on the afternoon of July 6, Choate was instructed to see Carmen
Knutter, acting personnel manager. He spoke with Knutter who informed Choate
that it was against company policy for summer laborers to bid jobs. Again Choate
insisted that it was his right to do so. Knutter then informed Choate that he would
have to converse with Plant Superintendent Wooster. After some delay, Knutter and
Choate spoke with Wooster, who similarly informed Choate that it was against com-
pany policy for summer laborers to bid jobs and stated reasons in support of this
policy 4 Choate again asserted his right to bid the job, but Wooster responded by
asking Choate to scratch his name from the job bid sheet. Choate declined to do
so. Wooster then stated that Choate's failure to do so would result in "very serious
consequences." When Choate asked Wooster the nature of the "serious con-
sequences" Wooster stated that Choate would be dismissed from his employment.
Choate was adamant in his refusal to comply with Wooster's request and Wooster in-
structed him to return to work.
Immediately following this conference, Acting Personnel Manager Knutter again
requested Choate to remove his name from the bid sheet, but Choate refused to do
so. Choate returned to work and nothing further was said to him until he received
a telephone call from Knutter at, his residence during the dinner hour on July 6.
Knutter informed Choate that his shift superintendent should have informed him
of his dismissal, but he asserted that he, Knutter, had learned that this had not
been done. Accordingly, Knutter stated that he was calling Choate to inform him
of his dismissal . Choate did not ask Knutter the reason for his dismissal and the
conversation ended.
4. Deaton contacts management
Max Deaton, president of the Union, credibly testified that on the afternoon of
July 6, he telephoned the plant and requested to speak with Paul McMaster. He
was informed that McMaster was not available but was referred to his assistant, Louis
2 Three days earlier, on June 25, 1965, Choate had bid on two other jobs in the petlines
department . In neither case was the job awarded to Choate , but in each case Choate had
less seniority than the successful bidder
3 Choate testified that in summers past he had been informed by Max Deaton , president
of the Union , that summer employees had all of the rights of regular employees, including
the right to bid jobs Additionally , Choate stated that he had been informed by his shop
steward, Ray Brandewey , that he had the right to bid jobs
Ala his testimony , Darrel Choate did not outline the reasons given to him by Wooster,
and there is no other testimony of record relating to this conversation
ANACONDA ALUMINUM COMPANY 39
Cart. Deaton spoke with Cart . Deaton informed Cart that he had been told by
Darrel Choate that Choate had been instructed to remove his name from the bid
sheet or face discharge . Deaton inquired as to the status of this matter, and Cart
informed him that his information was correct and that Choate would be discharged
if he did not remove his name from the bid sheet by 4.30 p.m. on the day in
question . In response , Deaton asserted that the collective -bargaining agreement did
not make any provisions for temporary hires, that summer replacements were em-
ployed under the understanding that they could remain in the employment of the
Company if they chose to do so, and that there were no provisions of the collective-
bargaining agreement prohibiting summer replacements from bidding a job. Cart
asserted that management had informed some of the students when they were hired
in 1965 not to bid on line 3 jobs, but that they had not so instructed Choate.5 How-
ever, Cart asserted that although Choate had not been specifically apprised of this
limitation , he had been contacted and had been asked to remove his name from the
bid sheet . Cart stated , however, that Choate "had chosen to be stubborn ," and that
he would be discharged . Deaton reiterated his earlier comments that summer em-
ployees had not been hired as temporary employees , and he asserted that if Choate
were discharged he would be discharged for exercising his rights under the contract.
Cart responded that the Company would assert that Choate was discharged as an
"undesirable employee." Moreover , Cart asserted that as Choate had not been in
the employment of the Company for 30 days , the "union would be without recourse."
Deaton credibly testified that he had never been notified by the Company of its
plans to inform summer replacements hired during 1965 that they could not bid jobs.
5. Summer replacement bidding rights discussed
Deaton further testified that following the termination of Choate he discussed
with Paul McMaster and with Browne Lokken, a line superintendent , the right of
summer replacements to bid jobs on line 3. McMaster raised with Deaton the
bidding problem that would be created by the July 12 opening of the new potline
with the consequent number of job openings . McMaster emphasized the un-
economic aspects of a large number of summer replacements bidding for line 3 jobs,
who, by reason of their plans to return to college in mid-September , would be avail-
able for only 2 months of service, including the training periods
Deaton further testified that in his capacity as a member of the negotiating com-
mittee which negotiated the 1963 collective -bargaining agreement , and as president of
the Union , he had had occasion to discuss with Respondent 's supervisory and man-
agerial personnel the applicability of the terms of the then existing collective-
bargaining agreement to summer employees . Specifically with regard to the right of
summer employees to bid jobs , Deaton testified that the matter was discussed with
Personnel Manager Paul McMaster and with Fred Ayers, a foreman , who informed
him, in substance , that summer replacements were to be accorded the rights of other
employees , and that if they desired to bid jobs they could do so by placing their name
on the bid sheet . He observed , however, that because they were relatively new
hires, the likelihood of their successfully bidding a job was not great.
6. Relative seniority of Choate and Skare
Deaton further testified that under his understanding of the terms of the collective-
bargaining agreement covering job bidding, only Choate and Skate , the successful
bidder, were eligible to bid on the job of control man in the potlines department
which was the subject of the disputed posting. He stated that this was so because only
they were employed in the potlines department , and that it was departmental seniority
which controlled the award of the bid . With respect to seniority , he noted that
Choate had greater seniority than Skare.
Deaton further testified that under practice prevailing at the time of Choate's
termination , a summer replacement was employed as a new employee , even though
he may have had previous terms of summer employment with Respondent . Deaton
further testified that periods of prior employment would not be taken into considera-
5 Prior to 1965 , the Company operated two potlines comprised of 120 pots per line. How-
ever , under a construction program commenced prior to 1965 , a third potline was added to
become operative effective July 12, 1965 Cart 's reference to line 3 was to jobs to become
available with the opening of the new potline.
6 Deaton testified that a supplemental agreement effective October 15 was negotiated
which , by its terms , prohibits summer replacements from bidding jobs
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in computing the departmental seniority of an employee, but that his depart-
mental seniority commenced with, and ran from , the commencement date of his
most recent term of employment with the Company.
7. Summer replacements as probationary employees
a. Pertinent contractual provisions
Section 3 of article 3 ( recognition and union security ) provides as follows:
There shall be a thirty ( 30) day probationary period for any newly hired pro-
duction employee and a 45 day probationary period for any newly hired em-
ployee in a recognized craft classification . If retained by the Company such
new employee 's seniority shall date from the first day of employment [Em-
phasis supplied.1 7
b. Seniority for job bidding purposes
Deaton testified that the job bidding rights of probationary employees was the sub-
ject of discussion between the Union and the Company at contract negotiations in
1961. He further testified that as a result of this discussion, it has been recognized
by the Union and the Company that for the purpose of job bidding, as well as for
other purposes not here pertinent, employees-both regular probationary employees
and summer replacements-would have seniority during their 30-day probationary
period. Deaton testified that this understanding was intended to give meaningful
effect to the provisions of the collective-bargaining agreement which provides that
if no eligible applicant bids for a job the vacant position shall be filled by promotion
of the laborer with the least departmental seniority to the vacant position.
Conclusions
The General Counsel is quite correct in his contention that in bidding for a job
opening, and by later refusing to withdraw his bid, Choate was asserting a claim
under the terms of the collective-bargaining agreement, and was thereby engaged
in concerted activity within the meaning of Section 8(a)(1) of the Act.8 Moreover,
the General Counsel is correct in his contention that the activities in which Choate
engaged are not removed from the Act's protection merely because, arguably, the
right which he was pursuing may not have been legitimately his under the terms of
the collective-bargaining agreement then in effect. While article 5, construed to-
gether with article 3 of the agreement, may, aiguendo, give rise to some doubt con-
cerning the contractual right of summer replacements to bid jobs, nowhere in the
agreement is this right, in unambiguous terms, proscribed, and prevailing practice gave
Choate at least colorable right to bid and claim the job. His claim clearly was not
one frivolously asserted; nor, on the record before me, was it one advanced solely
in self interest to harass management.9 It may well be that in context of operational
realities, the effect of the literal application of the terms of the collective-bargaining
agreement, was to render the accrued seniority of probationary employees, including
summer employees, meaningful and operative solely in "awarding" them assignments
in which regular employees with superior seniority were not interested. Similarly, it
is both reasonable and likely that legitimate considerations of production efficiency
and economy dictated Respondent's unwillingness to award job openings on line 3,
to summer replacements. While the evidence suggests that Choate was never in-
formed of the reasons underlying the Company's decision not to permit summer
employees to bid on line 3 jobs, it may, nonetheless, persuasively be asserted that in
recognition of the patent inadvisability of awarding line 3 jobs to untrained, short-
term summer employees, the course of greatest prudence for Choate would have been
to refrain from asserting his claimed right to the posted vacancy. But, absent un-
usual circumstances not here present, the protections accorded employees under the
Act are not dependent upon the merit, or lack of merit, of the concerted activity in
7 Denton testified that the potline, casting plant, and service departments are "production
departments "
s B cf M Excavating, Inc, 155 NLRB 1152, and cases cited therein at footnote 3: see also
Salt River Valley Water Users Association, an Arizona Corporation. 99 NLRB 849, 853
U See Walls Manufacturing Company, Inc, 137 NLRB 1317, 1319, enfd. 321 F.2d 753
(C.A D C ), cert denied, 375 U S. 923
ANACONDA ALUMINUM COMPANY 41
which they engage.1° Nor are these rights defeasible by the "unwisdom" of the action
taken, or limited by the maturity of the judgment displayed."
The unrefuted and credited testimony of Choate establishes that his bidding and
his subsequent refusal to withdraw and abstain from bidding the line 3 job was the
cause of his discharge. There is only a modicum of support for Respondent's con-
tention that Choate's discharge was for a cause unrelated to his concerted activities
Viewed in its record context, Respondent's contention that Choate was terminated
for cause is wholly lacking in substantiality, and is totally deficient in overcoming the
strong showing of unlawful motivation adduced by the General Counsel. In light
of this finding, and as I have further found that in bidding for a job opening under
the terms of the collective-bargaining agreement, and in persisting in advancing his
right to do so under the terms of the agreement, in the fact of Respondent's instruc-
tions to withdraw his bid, Choate was engaged in a protected concerted activity, his
discharge thus violated Section 8(a)(1) regardless of Respondent's belief as to his
rights as a probationary employee to bid for a job 12
1 turther find that Respondent violated Section 8(a)(5) of the Act in unilaterally
seeking to amend the terms of the then controlling job bidding provisions of the
collective-bargaining agreement by demanding Darrel Choate withdraw his bid for
the line 3 vacancy, on the ground that, as a summer replacement he was foreclosed
from participating in the job-bidding procedure of the collective-bargaining agreement.
I am convinced and find that, at the time of this demand, neither the collective-
bargaining agreement, by its literal terms, nor custom and usage under the agree-
ment, precluded job-bidding by summer replacements. Consequently, it is clear that
the demand made upon Choate by management to withdraw his bid, had the effect
of modifying the terms of the agreement. As the job-bidding procedure, and modi-
fications thereto, were mandatory subjects of bargaining, and as the Respondent
had not consulted with the Union in advance of its meeting with Choate regarding
the exclusion of summer replacements from the job-bidding procedures established
by the contract, I find that by its conduct Respondent violated Section 8(a)(5) of
the Act.13
I do not predicate my finding of a violation of Section 8(a)(5) of the Act on the
testimony of Deaton to the effect that he had been told by Louis Cart that, in hiring
summer replacements in 1965, the Company had informed new hires that they could
not bid on line 3 jobs. This element of the General Counsel's case was not fully
developed, and, in the absence of credible evidence sufficient to establish with
specificity instances wherein the advisory was communicated to employees, the testi-
mony of Deaton, standing alone, lacks the substantiality essential to support a find-
ing of a violation separate from that above made with respect to Respondent's unlaw-
ful demand upon Darrel Choate.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce in
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom, and take certain affirmative actions
which are necessary to effectuate the purposes of the Act.
10 See Socony Mobil Oil Company, Inc., 153 NLRB 1244, pages 1247-48, enfd 61 LRRM
2553 (C.A. 2).
11 See N.L R B v. Solo Cup Company, 237 F 2d 521, 526 (C.A. 8), and cases cited therein
at footnote 2 , Tomar Products, Inc , 151 NLRB 57, 63
12 B f M Excavating, Inc, sa ps a ; Socony Mobil Oil Company, Inc, sups a, oee also
NLR.B. v. Burnup and Sons, Inc, 379 U.S 21 I find without merit the contention of
Respondent in Its brief that because Choate did not Invoke the grievance and arbitration
procedure provided under the collective-bargaining agreement, the complaint should be
dismissed Aerodei, Inc, 149 NLRB 192, 199-200
13 See The Perry Rubber Company, 133 NLRB 225. C f C Plywood Corporation, 148
NLRB 414, Westinghouse Electric Corporation, 141 NLRB 733, enforcement denied 325 F 2d
126 (C.A. 7) ; Tom Johnson, Inc, 154 NLRB 1352 See also, Cone Molls Corporation, 156
NLRB 370; Motoresearch Company and Kems Corporation, 138 NLRB 1490, 1492, The
Weston and Brooker Company, 154 NLRB 747.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent interfered with, restrained, and coerced Darrel
Choate in the exercise of the rights guaranteed him under Section 7 of the Act, by
discharging him because he engaged in concerted activities, I shall recommend that
Respondent cease and desist therefrom, offer Darrel Choate reinstatement to his
former or substantially equivalent position of employment, and make him whole for
any loss he may have suffered because of his discharge, by payment to him of a
sum of money equal to that which he normally would have been paid in Respondent's
employ from the date of discharge to the date of Respondent's offer of reinstatement,
less his net earnings, if any, during said period. Loss of pay shall be computed upon
a quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, with interest at 6 percent per annum as provided in Isis Plumb-
ing & Heating Co, 138 NLRB 716.
As the record reveals that Darrel Choate was, at the time of his discharge and of
the hearing herein, a college student, and as his employment was vacation, summer-
time employment, I shall recommend that Respondent notify Darrel Choate in writ-
ing that, at his option, his reinstatement may be deferred until the end of the current
academic year.
Having found that Respondent has engaged in conduct violative of Section
8(a)(5) of the Act by unilaterally seeking to modify the job-bidding procedures of
the collective-bargaining agreement in effect between it and the Union , I shall rec-
ommend that it cease and desist therefrom.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Anaconda Aluminum Company is an employer engaged in commerce within
the meaning of the Act.
2. Aluminum Workers Trades Council is a labor organization within the meaning
of the Act.
3. Respondent discharged Darrel Choate because he engaged in protected con-
certed activity, and his discharge violated Section 8 (a) (1) of the Act.
4. All production and maintenance employees of the Respondent employed at its
Columbia Falls, Montana, plant, exclusive of office clerical employees, superintend-
ents, clerks, office janitresses, executive, chauffeurs, full-time safety and first-aid em-
ployees, laboratory and control technicians, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
5. At all times since December 1, 1955, the Union has been the duly certified
and exclusive collective-bargaining representative of the employees in the above-
described appropriate unit, within the meaning of Section 9(a) of the Act.
6. By discharging Darrel Choate because he engaged in protected concerted ac-
tivities the Respondent has engaged in, and is engaging in, unfair labor practices
in violation of Section 8(a)(1) of the Act.
7. By unilaterally modifying the job-bidding procedures of the collective-
bargaining agreement in effect between it and the Union, which unilateral modifica-
tion was effected on or about July 6, 1965, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(b) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. The Respondent has not engaged in any unfair labor practices not herein
specifically found.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that Anaconda Aluminum Company, its offi-
cers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any employee in regard to
hire, tenure of employment, or any term or condition of employment, for engag-
ing in any activity protected by Section 7 of the National Labor Relations Act, as
amended.
(b) Unilaterally modifying the job-bidding procedures of the collective-bargaining
agreement between it and the Union in a manner violative of Section 8(a)(5) of
the Act.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, except
ANACONDA ALUMINUM COMPANY 43
to the extent that those rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in Section
8(a) (3) of the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act.
(a) Make whole Darrel Choate for any loss of pay he may have suffered by
reason of his July 6, 1965, discharge in the manner set forth in the section entitled
"The Remedy"; and offer him reinstatement to his former or equivalent position of
employment in accordance with the recommendations set forth in the section
entitled "The Remedy."
(b) Notify the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Services
Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the National Labor Relations
Board, or its agents, all records necessary for the computation of backpay which
may be due under the Recommended Order herein.
(d) Post at its Columbia Falls, Montana, plant, copies of the attached notice
marked "Appendix." 14 Copies of the notice, to be furnished by the Regional
Director of .Region 19, after being duly signed by the representative of the Re-
spondent, shall be posted immediately upon receipt thereof and maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 19, in writing, within 20 days from
the receipt of this Trial Examiner's Decision, what steps have been taken to comply
herewith.i5
is In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
151n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL make whole Darrel Choate for any loss of pay he may have
suffered because of his discharge and offer him full reinstatement to his former
or equivalent position of employment.
WE WILL NOT discharge or otherwise discriminate against any employee
in regard to hire, tenure of employment, or any term or condition of employ-
ment, for engaging in any activity protected by Section 7 of the National Labor
Relations Act.
WE WILL NOT unilaterally modify the terms of the job-bidding procedure in
effect under the collective-bargaining agreement between us and the Aluminum
Workers Trades Council.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed in Section 7 of
the National Labor Relations Act, as amended, except to the extent that those
rights may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section 3 of the
aforesaid Act.
ANACONDA ALUMINUM COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-Notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 327
Logan Building, 500 Union Street, Seattle , Washington 98101, Telephone 583-4583.
Quality Markets, Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America, Amalgamated Food Em-
ployees Local Union 590, AFL-CIO . Case 6-CA-3374. July 1,
1966
DECISION AND ORDER
On March 30, 1966 Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and rec-
ommended that such allegations be dismissed. Thereafter, the Gen-
eral Counsel and the Charging Party filed exceptions to the Trial
Examiner 's Decision together with supporting briefs, and the Re-
spondent filed a reply to exceptions taken to Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the 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 recom-
mendations of the Trial Examiner, with the following additions and
modifications.
1. The Trial Examiner found, and we agree, that the Respondent,
by the conduct described more fully in the Trial Examiner's Decision,
threatened, restrained, and coerced its employees in violation of Sec-
tion 8 (a) (1) of the Act.
2. The Trial Examiner found, however, that the Respondent did
not violate Section 8(a) (5) by refusing on July 1, 1965, to recognize
the Union as bargaining representative of the employees in the ap-
propriate unit. In determining whether the Union had been desig-
160 NLRB No. 1.