Bowen Products Corp.

National Labor Relations Board - Board Decisions

Aug 16, 1955

113 N.L.R.B. 731 (N.L.R.B. 1955)

BOWEN PRODUCTS CORPORATION
Bowen Products Corporation and Charles L. Seals
731'
International Union, United Automobile , Aircraft & Agricultural
Implement Workers of America , CIO, Local 611 , and Interna-
tional Union, United Automobile , Aircraft & Agricultural
Implement Workers , of America, CIO and Charles L. Seals.
Cases Nos. 3-CA-779 and 3-CB- O8. August 16, 1955
DECISION AND ORDER
On October 29, 1954, Trial Examiner Henry S. Sahm .issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Company and the Respondent Unions had engaged in
and were engaging in certain unfair labor practices and recommending
that they, cease and desist, therefrom , and, take certain affirmative ac-
tion.. Thereafter, the Respondent Unions filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has considered herein only the question of whether the
original: charges filed by the complainant, Seals, were timely within
the meaning of the proviso to Section 10 (b) of the Act.
The Trial Examiner found that when complainant, Seals, who had
previously been laid off as a supervisor, was recalled for employment
in the bargaining unit on August 24, 1953, the Union for discrimi-.
natory reasons caused the Employer to place Seals' name at the bottom
of the seniority roster rather than accord him seniority for the time:
he had previously spent doing nonsupervisory work.' Seals unsuc-
cessfully sought to have this alleged discrimination with respect to his
seniority corrected. Meanwhile, Seals worked from August 24 to
October 20, 1953, when he was laid off in an economic reduction in
force. Under the existing bargaining contract, reductions in force were
to be made on the basis of seniority. It appears that Seals would not
have been included in this reduction had the parties, in fixing his
seniority on the date of his recall, August 24, given him credit for his
prior employment with the Company.
In rejecting the defense of the Respondent Unions that Section 10
(b) of the Act barred this proceeding because the alleged discrimina=
tion against Seals occurred on August 24, when his seniority was
fixed, and the instant charges were filed more than 6 months there-
after, the Trial Examiner held that "the unfair labor practice did
not occur when the Union and Company agreed on the August 24
seniority date, but rather, when it was applied and given effect to in
the layoff of Seals on October 20, 1953, which is well within the statu-
1 Prior to the time he was given a supervisory job, Seals worked in the unit.
113 NLRB No. 63.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tort' limitation of Section 10 (b) -112 We • do not agree with the Trial
Examiner's application of Section 10 (b) to the facts in this case.
Seals was, laid off on October, 20 in a valid economic reduction in
force and in accordance with a preexisting condition, i. e., the relative-
ly- low seniority he was given on August 24. Thus, in our opinion,
the only basis for holding. that Seals' layoff was unlawful would be
a finding that the low seniority given him on August 24 was the prod-
uct of unlawful discrimination within the meaning of the Act. Sec-
tion 10 (b) bars such a finding, even if supported substantively by
the record. . - . •
Nor do we believe here applicable the continuing violation theory
which has been limited largely to situations involving the applications
of union-security agreements which are prospective in nature and un-
lawful per se.3 Pursuant to the ' parties' basic bargaining contract,
which is not under attack, seniority is as much a substantive condition
of employment as are wages, hours, or a particular job. The placement
of Seals at the bottom of the seniority roster on August 24, notwith-
standing his prior service, was a fully consummated act at that time,
which immediately created an adverse substantive condition of employ-
ment. Thus, assuming such action to be unlawfully motivated, Seals
knowingly then sustained an immediate injury under the Act which
-could have been remedied had he filed charges within the statutory 6-
month period of limitation. To regard such an injury as a continuing
unfair labor practice, because an otherwise proper layoff subsequently
resulted therefrom, would in effect render Section 10 (b) meaning-
less a For under this theory, 10, 20, or more years after the original
discrimination, the complainant, upon being otherwise properly de-
nied a promotion, transfer, recall, vacation benefits, or other rights
based on seniority, could maintain an action therefor by establishing
the original discrimination and relating the subsequent action to it.
2 Charges were first filed against the Local on March 26 , 1954 , and against the Inter-
national on June 1, 1954 . It is apparent that even under the Trial Examiner 's interpre-
tation of the law, he made an arithmetical error in holding that Section 10 (b) did not
bar this action against the International.
8 Ebasco Services Incorporated , 107 NLRB 617; Gaynor News Company, 93 NLRB 299,
enfd. 197 F. 2d 719 (C. A. 2), affd. 347 U. S. 17 ; N. L. R. B. v. McGraw and Co., 206 F.
2d 635 (C. A. 6) ; Red Star Express Lines o f Auburn, Inc. v. N. L. R. B., 196 F. 2d 78
(C. A. 2) ; North East Texas Motor Lines, Inc., 109 NLRB 1147.
' The dissent's factual conclusions that Seals' seniority was not effectively changed
until December 1953, rather than on August 24, 1953, is not, in our opinion, supported
by the record . Indeed, the Trial Examiner found and all parties , in effect, agreed at the
hearing that as a result of discussions between the Union and the Employer , the latter
on August 24, 1953, actually denied Seals seniority for his past service. With respect
to Seals' subsequent discussions 'with the International , the most that can be said is that
Seals unsuccessfully attempted to have the International override the position taken by
the Local , which had generally been delegated the power to administer the contract.
8 See N. L. R. B. v. Pennwoven, Inc., 194 F . 2d 521 ( C. A. 3) ; and N. L. R. B. v. Childs
Company and Chain Service Restaurant Employees Union , Local 42 , et at., 195 F. 2d 617
(C. A. 2). See also Bonwit Teller, Inc., 96 NLRB 608, wherein the Board rejected the
contention that the discriminatory discontinuance of the processing of wage reviews con-
stituted a continuing violation ; and Goodall Company, 86 NLRB 814 , at 844, wherein the
Board held that an illegal wage increase did not constitute a continuing violation.
BOWEN PRODUCTS CORPORATION 733
In our opinion, the complainant may not establish the now barred
claim that he was discriminated against on August 24 as the predicate
for his present action seeking redress for his otherwise proper lay-
bff.on-October'20 6 We are satisfied that this view comports with the
congressional intent of Section 10 (b) to preclude litigating stale un-
fair labor practices. As noted, the contrary view would require a
respondent to collect evidence and find witnesses as to ' events occur-
ring years before the filing of,the charge.
In reaching a contrary conclusion, our dissenting colleagues rely
primarily on the Pacific Intermountain case.? However, in our opinion
that case is inapposite to the procedural issue here involved. Examina-
tion of the cited authority reveals that Section 10 ( b) was ,in no way
involved in the case or mentioned in the decisions; therefore, the sub-
stantive holding therein is wholly irrelevant to the procedural aspect
of this case. But more than that, the factual aspects of the two cases
are entirely different. In Pacific Intermountain, the basic collective-
bargaining agreement itself unlawfully delegated to the union the con-
tinuous right to control seniority and the union last exercised that
right in a discriminatory manner within the 6-month period preceding
the filing of the original charges therein." However, in the instant
cash, there was not that type of executory agreement which delegated
continuous control of seniority to the Union. Indeed, the so-called
agreement of August 24, which the dissent equates to the contractual
delegation of control of seniority in the Pacific Intermountain case,
amounted to no more than the Employer's ad hoc acquiescence to the
Union's demand that Seals be treated, under the valid seniority pro-
-visions of the contract, as a new employee when he was returned to
-work after a layoff. Nor do we believe that the Board's decision in the
Potlatch Forests case,9 on which our dissenting colleagues similarly re-
ly, is here controlling. In the Potlatch case, the discriminatory senior-
ity policy unilaterally adopted by the employer was, like the afore-
mentioned illegal contractual provision in the 'Pacific Intermountain
case, unlawful on its face and continuing in nature, whereas in the
present case the fixing of Seals' seniority was not per se unlawful, but,
9 See Greenville Cotton Oil Co., 92 NLRB 1033 , enfd. 197 F . 2d 326 ( C. A. 5), where
the Board also similarly held that Section 10 ( b) precludes a finding that an employer had
illegally refused to reinstate certain strikers, during the statutory 6-month period, when
the strikers ' right to reinstatement depended upon a finding that the strike , which oc-
curred before the 6 -month period, was caused by the employer 's unfair labor practices.
7 Pacific Intermountain Express Company, et al., 107 NLRB 837.
9 We note that in the General Longshore Workers case , cited by, our dissenting col-
leagues, the General Counsel specifically restricted the complaint to the per se illegal
blacklisting acts which in fact occurred within the statutory 6-month period preceding
the filing of the charges . Thus, the unfair labor practice findings of both the Board and
the court therein were predicated on unlawful conduct occurring wholly within the statu-
tory period.
9 Potlatch Forests, Inc., 87 NLRB 1193 , enforcement denied on grounds not pertinent
herein.
734 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
rather, -merely constituted the type of isolated instance referred to
above.
-Under , the facts of this case, we find that Section 10 (b) bars the
entire - proceedings and shall therefore dismiss the complaints as.to all
Respondents.
,rThe,Board , dismissed the-complaint.]
CHAIRMAN FARMER and MEMBER RODGERS, -dissenting:
This case involves an employee , Seals, who was laid off by the Re-
spondent=Company on October 20; 1953. ` His layoff was directly at-
tributable to' the Respondent Union's insistence that his seniority be
dated from August'24 ; ,1953, ' for the Company wished to credit Seals
with seniority from the time ' of his initial hire in 1940 . - Seals filed
the charge in this proceeding on March 26, 1954, less than 6 months
after losing his job . The majority dismisses the case in its entirety on
the theory : that the .unlawful arrangement whereunder the Union,
rather than the ' Eniployer , determined Seals' seniority rights, Iwas con-
summated on August 24,-1953 ( more than 6 months before the filing
of the . charge) and; therefore , that the 6-month limitation setforth in
Section 10 :(b), of the statute forecloses Seals' right to have the Board
process his charge. „
It is hardly decisive of the issue posed in this case to find, as does the
tajoiity , that the Company and the Union acted improperly in August
1953, ,and that such improper conduct can no longer be litigated., In-
deed,-the record , does not even establish that Seals '. seniority position
was settled in August 1953. The basic written agreement under which
the job seniority of the Company 's employees was determined was be-
tween the International Union and the Company , with the Local Union
acting merely . as the International 's agent, In . fact, the Local's-au-
thority as an agent is specifically limited in the contract which provides
that only the International itself has the power to take certain action.'°
The action against Seals ' interest taken in August 1953 , was that of
the .Local ; the inconclusiveness of that action is, clearly established in
the record . The president of the Local actually suggested to Seals
that -he-discuss with the International the Local 's August 24 position
on his seniority. Seals thereupon discussed with an International
representative the Local 's determination of his seniority rights. The
International representative discussed Seals' complaint with the Local
around Christmas 1953 or later. Thus, it was not until at least the end
of•December - 1953, that the Union 's unilateral determination'of Seals'
-, °For example, section 12 of the, grievance - procedure provides that -"no strike will be
called until sanctioned by, the International Union, United Automobile , Aircraft and
Agricultural Implement --Workers of America, affiliated with the Congress of Industrial
Organizations (UAW-CIO)."
BOWEN",PRODUCTS CORPORATION 735
seniority rights became. conclusive..-That time,=like the date of Seals'
layoff,'was well within 6 months of the'filing of the charge. -
Furthermore, even . assuming' that the arrangement between: the
Union and the Company'was final as of August 24;'1953, Seals is still
not' foreclosed by the statutory limitation from having the-merits of
his 'complaint processed before the Board. The majority decision in
this case, of necessity, is premised upon a conclusion that the agree-
ment violated the Act only at the very moment it was reached. That
premise is clearly erroneous. The agreement initially delegated un-
lawful'control of-seniority to the Respondent'Union when-reached on
August 24. However, such an unlawful arrangement violates the Act
as long as it is in effect and whenever it causes a change in the job
status of a particular employee. Although not considering Section
10 • (b) as a particularized issue, the Board decided in •Paci fic Inter-
mountain 11 and related cases that the maintenance 'and enforcement of
a contractual provision delegating control of seniority to a union is
unlawful as well as the act of signing the agreement. In fact, the
Board: determined ,specifically in Pacific Intermountain, wherein low
men on a seniority list unlawfully established years before were laid off,
that the Act was violated at the time such individuals were laid off.
Indeed, any other conclusion would permit an employer and a union
to - enter into an unlawful arrangement-such' as one establishing a
discriminatory hiring p'ro'vision=which they-could enforce with inn=
punity 6 months after executing the agreement. 'Yet, by depriving
Seals of his right to have this case decided on its merits, the majority
is giving just such a stultifying'effect to Section 10 (b). '
",the majority decision in this case is'also in direct conflict with Board
and court decisions interpretative of Section 10 (b). The Potlatch 12
case is in point. The Board therein found that Section 10 (b) is inap.
plicable where it seniority list, determined to -have been discrimina-
torily compiled 16 month's before the filing of a charge, was the basis
for the layoff of employees within 6 months'before the charge'wa's
filed. In another case 13 involving Section 10 (b), a union placed an
individual on-an employment -blacklist more than 6 months before
the filing of a charge. ;Yet, the Board found the union violated Sec-
tion 8 (b) (2)- because the blacklisting caused an actual denial of
employment 'within 6 months of the charge. ' ' ,
The majority apparently'relies''upon three cases 14 to support its
position here; however, as will be shown, all are inapposite. In Penn-
-. iu Paoifo Intermountain Express Company, at at., 107 NLRB 837. '
-- "22`PotlatchtForests , Inc.,, 87 NLRB • 1193, enforcement denied on grounds 'not= relevant
'here, 189Y . 2d 82 (C. A 9).
2 N.'L. R. B. v. Local 1418 , General Longshore Workers, International Longshoremen's
-Association, A."F. L.; 212 F. 2d 846 (C."A.'5). I . . . ` •
"N. `L. R.' B. v. Pennwoven, Inc., supra ; N. L. R. B . v. Childs Company, etc.;.supra;
and Greenville Cotton Oil Company, supra.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
woven an individual was denied reinstatement due him as an economic
striker more than 6 months before he filed a charge. In Childs the
complainant failed to file a charge within 6 months after his discrimi-
natory layoff under an illegal union-security contract. In each case the
incident occurring more than 6 months before the charge was an actual
denial of employment. In this case the August 24 agreement-as the
critical event the majority finds occurred over 6 months before the
filing of the charge-was no more than a threat against Seals' future
employment. The first actual refusal of employment to Seals did
not occur until October 20 within 6 months of the charge. This case
bears no resemblance to the Penn'woven and Childs situations; rather,
it is like the case wherein an employer threatens to discharge an em-
ployee for union activity but does not actually discharge him until
months later, and the ensuing charge, although not filed within 6
months of the threat, is filed within 6 months of the discharge 15 Sec-
tion 10 (b) has no application to such a situation.
The remaining case the majority applies to the facts involved here
is Greenville Cotton Oil. That case involved a strike which began
more than 6 months before the filing of a charge. Thereafter, within
6 months of the charge, strikers were refused reinstatement. The only-
way in which the Board could have found that the Respondent un-
lawfully refused to reinstate the strikers was to find that the Re-
spondent had, committed an unfair labor practice, which caused the
strike, more than 6 months before the charge was filed. But Section
10 (b) clearly precludes an unfair labor practice finding as to events
occurring more than 6 months before a charge is filed. In this case,
although the August 24 agreement is pertinent to the October 20 lay-
off, there is,no need to find that on August 24 the Respondent com-
mitted an unfair labor practice.
In our opinion, the majority has, therefore, in reaching a determina-
tion grounded upon previously decided cases which have no bearing
on the facts of this case,; misapplied Section 10 (b) of the Act. We
cannot agree with such a result, and we would find, as did the Trial
Examiner, that both Respondents have violated the Act.
15 In such a situation involving a threat and discharge , the passing of "10, 20, or more
years" emphasized in the majority's decision has the same evidentiary significance as it
would have for a similar interval between compilation of a seniority list and a subsequent
discharge thereunder.
INTERMEDIATE REPORT
BACKGROUND
Charles L. Seals, the Charging Party herein , was hired as a nonsupervisory em-
ployee on January 16 , 1940, by the Bowen Products Corporation , hereinafter re-
ferred to as the Company.' On October 1, 1945, he was promoted to a supervisory
1 At that time, there was no labor organization in the plant . In 1944 , the Board certi-
fied the United Farm Equipment and Metal Workers of America, CIO, as the collective-
BOWEN. PRODUCTS CORPORATION 737
position . Seals remained a supervisor until August 6, 1953, at which time he was
laid off due to economic conditions. Sometime between August 6 and August 24,
1953, the Company contends it notified the Union that it intended to recall Seals to
a nonsupervisory position within the bargaining unit and to accord him seniority
from January 16, 1940, the date he was originally employed. The Company's pro-
posal that Seals' seniority should date from the time he was originally hired, it was
testified, was opposed by the Union which insisted Seals' seniority should date from
the time he was "rehired" on August 24 and assigned to a job within the bargaining
unit. The Company acceded to the Union's demand. The Company does not claim it
was correct in doing so , but attempts to justify its action in bowing to the Union's
alleged insistence of an August 24 seniority date, on the ground it was apprehensive
that reprisals might be effected against it if it did not agree to do so. Due to business
conditions , which required the Company to reduce its working force, Seals was the
first employee laid off on October 20, 1953, because his seniority date of August 24
placed him at the bottom of the Company 's seniority list. It is agreed by the parties
that if Seals had been granted seniority either from January 16, 1940, the date when
he was hired originally, or if he had been granted seniority only from his original
hiring date exceeding the time he was in a supervisor's status-under either of these
methods of computation he would not have been laid off. However, when his sen-
iority was computed beginning from August 24, 1953, the day he was recalled to a
job within the bargaining unit, this method of computation so reduced his rating
on the Company's seniority roster that he was the first employee laid off in a reduc-
tion of force on October 20, 1953. -
. The Union, on the other hand, denies that it was ever consulted by the Company
with respect to Seals' seniority and claims that the decision to date Seals' seniority
from August 24, was the Company's alone. Furthermore, the Union contends that
it had no reason to question the correctness of the seniority date given to Seals as
he never filed a grievance with the Union concerning his seniority.
ISSUES
The questions to be decided are: (1) Whether the Union demanded that the Com-
pany place Seals at the bottom of the seniority roster; and (2) whether the method
used in computing Seals' seniority, which eventually resulted in him being laid off,
was an unfair labor practice within the meaning of Sections 8 (a) (3) and 8 (b) (2)
of the National Labor Relations Act, herein called the Act .2
1. FINDINGS OF FACT
It is conceded and found that the Respondent 's International Union and its Local
6113 are labor organizations within the meaning of Section 2 ( 5) of the Act. It is
conceded also that the Respondent Company, which is engaged in the manufacture
of metal stampings and related products , purchased during 1953 , raw materials, sup-
plies, and equipment valued in excess of $750,000, of which approximately 70 per-
bargaining agent for the Company 's production and maintenance employees . Seals was
then an employee in that unit but he never joined the Union . On November 2, 1944, the
Company and the Union ( UFE) entered into an agreement which contained a mainte-
nance-of-membership clause. On May 10, 1950 , the Respondent International Union was
certified by the Board.
2 The pertinent provisions of these sections are :
Sec. S . (a) It shall' be an unfair labor practice for an employer- . .. (3) by dis-
crimination in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization : .. .
(b) It shall be an unfair labor practice for a labor organization or its agents- .. .
(2) to cause or attempt to cause an employer to discriminate against an employee in
violation of subsection ( a) (3) or to discriminate against an employee with respect
to whom membership in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and the initiation fees uni-
formly , required as a condition of acquiring or retaining membership ; .. .
3 The Union was certified by the Board on May 10 , 1950 , as the collective -bargaining
agent for the production and maintenance employees at the Company 's Auburn, New
York, plant.. The various agreements in effect between the Company and Union, at all
times pertinent herein , contained a union-security provision. Under this provision, an
employee who is ' a member of the Union as of the effective date of the contract, or who
thereafter becomes a member, must continue as such throughout the life of the agree-
ment as a condition of employment. As of October 20_1953 , there were approximately
165 production and maintenance employees , in the bargaining unit.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cent was purchased from sources located outside the State of New York and was
shipped, directly to Respondent's plant located in Auburn, New York. During the
same period, Respondent sold and shipped metal stampings and related finished
products valued in excess of $1,500,000 of which approximately 90 percent was sold
and shipped directly to customers located outside the State of New York. It is
found, therefore, that the Respondent is engaged in commerce within the meaning
of the Act, and it is subject to the jurisdiction of the Board.
A. The testimony
Seals testified that after he was laid off from his supervisory position on August 6,
he was sent for, on August 21, by Robert D. Mullally, employment manager of the
Company, who informed Seals that he should return to work on August.-24• in a
nonsupervisory position and that his seniority would date from that time .4 Seals
testified that he remonstrated with Mullally arguing that he was entitled to seniority
from the date he was hired on January 16, 1940, but, "Mr. Mullally told me that
the Union agreed with the Company to place my name on the bottom of the
seniority list, although the Company was not in favor of going along with the idea."
On August 24, 1953, the day Seals returned to work, he joined the Union. At
that time, he told George Hundley, the union steward for his department, about
his dissatisfaction with being placed last on the plant's seniority list and Hundley
agreed that it would be brought up at the next meeting of the Union .5 Sometime be-
fore the union meeting, he also contacted John Pallack, a union steward, and dis-
cussed his seniority grievance with him. After the union meeting, which was held
on September 16, Seals testified that he related the details of his seniority grievance
to Louis Cerio, president of Local 611, and Cerio advised him "that because of
the date of re-hire [August 24] that was where my name was placed, on the bottom
of the seniority list, and would remain there; there was nothing I [Seals] could do
about it, and that I was lucky that I got into the Union because I was antiunion." 6
When Seals was asked by the General Counsel's representative whether Cerio in-
dicated,why he was ranked last on the seniority roster, he replied, "Not except be-
cause I was re-hired and had just joined the Union as of the date of August 24th."7
Seals also testified that he complained to Margaret Corey, a member of the Union's
grievance committee, on or about October 1. He told her, he testified, that he. con-
sidered it unfair to be listed at the bottom of the seniority roster and that he felt
his seniority should date from January 16, 1940, when he first went to work for the
Company. Corey stated, according to Seals, that his seniority was determined as
of the date he "was rehired and joined the Union." 8
On October 19, the day before he was laid off, he asked George Kapcha, chair-
man of the Union's grievance committee, for a grievance form in order that he
might assert his seniority complaint. Kapcha, according to Seals, told him he had
no form and even if he did, it would not do him any good to fill one out.
In the latter part of November or beginning of December, he went to Syracuse,
New York, and spoke to George Staub, International representative of the United
Automobile, Aircraft and Agricultural Implement Workers of America, CIO, the
International affiliate of Local 611. Seals gave Staub the facts upon which he based
his grievance and Staub after hearing them told Seals that he would be notified as
to what the International's position would be with respect to his seniority grievance.
After waiting more than 3 months for a reply from Staub and receiving none, he filed
his first charge with the Board on March 26, 1954. On May 10, 1954, the Company
recalled Seals to work in a bargaining unit job.
40n or about August 24, the Company advised the Union by a printed notice called a
"change in' employee statusl' form (General Counsel's Exhibit No. 5) that Seals was
being transferred from a supervisor's status to a job within the bargaining unit.
5 Also present during the conversation was Donald Hockeborn, a member of the Union's
grievance committee.
e On his cross-examination, Cerio admitted that he had checked Seals' prior union his-
tory and activity. Cerio also stated in an affidavit which he gave a Board representative
that Seals was "strictly antiunion" and that he "looked back into Seals' union history."
At another point in his cross-examination, Cerio denied that he checked Seals' union
history.
7 Seals testified that he complained to Cerio about his seniority on two other occasions
between the. date of the union meeting and the time he was laid off on October 20, but
to no avail.
8 Seals testified that in relating his seniority grievance to Hundley, Hockeborn, Pallack,
and Cerio that he told each of them that he should be entitled to seniority from January
16, 1940, the date he was originally employed by the Company.
BOWEN PRODUCTS CORPORATION 739
Robert-D. Mullally, employment manager of the Respondent Company since
February 1947, testified that he had a conversation in his office sometime between
August 6 and August 24 with Louis Cerio, president of the Local Union. At that
time he informed Cerio that Seals was to be recalled to a nonsupervisory job and
that the Company proposed to'accord him seniority. from the date he. was originally
hired on January 16, 1940. Cerio told Mullally he would give him an answer on
Seals' seniority question later. Cerio, according to Mullally, advised the Company
a few days later that he was authorized by the International Union to state that in-
asmuch as Seals had never been a member of the Union, that he was considered for
all intents and purposes a new employee and that his seniority should date from
the time he was recalled to work on August 24.9 The- Company acceded to the
Union's request because, as Mullally testified:
The Company felt that as this was the position of the Union that we could ,do
nothing else other than agree because of the fact that if we did not agree we
believed it possible for the Union to-immediately present us with a grievance
on the behalf of another employee who-might have had more seniority than
Mr. Seals' seniority date of August 24th. If this were the case it would have
been possible-we did not know, could not foresee, what conclusions such a
grievance could end with, and the Company might very well have been liable
for a substantial amount of back pay to another employee, so we agreed to this
decision.
As a result of the decision to assign an August 24 seniority date to-Seals which
placed him at the bottom of the seniority list,10 he was laid off on October 20, when
the Company reduced the number of its employees because of business conditions.
It was stipulated that if Seals had been granted seniority only from the time he was
hired until he became' a.supervisor on October 4, 1945, that -even then- his rank on
the seniority list would have been high enough so that he would not have been laid
off on October 20.11 - - - .
Louis Cerio, president-of the Local Union, a member of its grievance committee;
and an employee of the Company since November 1945, testified that he learned of
Seals' August 6 layoff shortly thereafter, and that he had never discussed Seals'.
seniority status prior to that time with any company official. Nor did he recall ever
discussing Seals' seniority status with any company representative prior to or subse=,
quent to August 24,12 the date when Seals"was recalled to a nonsupervisory position.
9 Mullally also testified that Cerio told him that the Union's constitution compelled this,
interpretation of Seals' seniority rights -
10 The seniority list is prepared by the Company and checked by the Union before it is
issued and it is utilized by the Company in effecting reductions-in-force. It is piantwide
in coverage and comprised only of employees classified within the bargaining unit, but ,it
does not include supervisory personnel. A copy of the seniority list on which Seals' name
appears last was given to the Union about October 1, 1945. - ' -
"The claim was made that even though Seals might be, considered to have seniority
from the time he was originally hired on January 16, 1940, as a rank-and-file employee
that, nevertheless, the time that he was in a-supervisory position from- October 1, 1945,
to•August 6, 1953, should be excluded in computing his seniority -
32 At another point in his direct examination, he testified that the first time the layoff
of Seals and the question of his seniority was brought to his attention was when the
Company requested the Union to give Seals preferred seniority in.order that he could be
recalled to work on August 24 to take a fob for which only Seals had the requisite quali-
fications- This would seem to'place the date that Cerio had notice- of Seals' seniority
complaint as prior to August 24. -This is confirmed by the testimony of Margaret Corey,
a member bf 'the 'Union's grievance committee, who testified that she, Cerio, Kapcha, and
Hockeborn, met with Mullally and -one, -Steelow,- vice president of the -Company,- prior to
August 24. The purpose of thismeeting,' she testified, was for the Union to consider
whether they would agree to the Company's request to accord Seals preferred seniority 'in
order that-he might be permitted to fill a nonsupe'rvisory-job-for which he was exclusively
qualified. When this was brought to Cerio's attention on his cross-examination, he ad-
mitted that the' Company 'did request the Union 'to grant preferred seniority,'to 'Seals
prior•,to his recall on August 24. However, at another point in his cross-examination, he
reverted to his original statement that the first time Seals' seniority 'problem came-to'his
ntteiition-.was after the union meeting which-was held on September 6' , In an 'affidavit
dated.-Apri1.15, 1954,• given by. Cerio to-.a-Board-representative, -he states that he had a
conversation with Mullally "sometime in August 1953" withi reference , to-Seals' : case.
He then testified that he could not state whether he did or did not have such a conversa-
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He did, however, recall a conversation with Seals sometime in September with respect
to his seniority. In that conversation, at which George Hundley, a union steward, was
present, Cerio testified that:
Hundley . . . believed that Mr. Seals' seniority should date from the date of
hire. It was not discussed what the date of hire was, but I had assumed that
it was before I was there because when I went in there-when I was hired in
Bowen Products [May 19451 Seals had already been employed there [in a non-
supervisory position.. .. And I told Hundley and Mr. Seals .. . that what
was decided on Mr. Seals was according to the way the contract was interpreted
by myself and if Mr. Seals thought that he was being dealt with unjustly, to
contact an International Representative, either in Syracuse or when the Inter-
national Representatives come to visit our plant.
On his cross-examination Cerio admitted that the Company and Union had agreed
on or about August 24 that for purposes of seniority, Seals' seniority should begin
as of August 24, 1953. When it was brought to his attention that this was incon-
sistent with his testimony on direct examination in which he stated that he first learned
of Seals' seniority matter sometime in September, he testified, "I don't remember."
Cerio on his direct examination testified that the August 24 date for determining
Seals' seniority was the sole decision of the Company and that the Union was never
consulted with respect to this matter. Counsel for the Company in cross-examining
Cerio asked him whether he recalled any previous conversations which he alleged
culminated in the Company arriving at the August 24 seniority date. When Cerio
answered that he did not recall any previous conversation in this regard, Counsel
inquired:
Q. So you may be misguided by your lack of recollection as to who did pro-
pose the date August 24th?
A. It is possible, yes.
Cerio also denied on his cross-examination that he had checked into Seals' union
history but in his affidavit dated April 15, 1954 (General Counsel's Exhibit No. 8)
which he gave to an investigator for the Board, he stated that, "we looked back into
Seals' union history."
George J. Staub, International representative of the UAW-CIO, testified that it is
part of his duties to work with the Local Union and to participate in contract negotia-
tions with the Bowen Products Corporation. He testified that Seals discussed his
seniority problem with him in November or December 1953 at his office in Syracuse,
which antedated the time Staub discussed Seals' case with the Local Union's grievance
committee. Staub subsequently discussed Seals' seniority status with the members
of the Local's grievance committee who asked, his advice on the problem. Staub
testified:
My advice at that time after they told me the circumstances of the case and
the circumstances were that Seals had been laid off and at a period three weeks
later the company wished to employ him as a floor inspector, and the committee
at that time stated that they agreed to his reemployment as a floor inspector
with preferred seniority because there was nobody laid off who could do the
work, and, as I understood it, I was informed at that time that Mr. Seals was
coming back as a new hire, that no effort had been made by the Company to
place him on the seniority list, that he was just laid off and, at a later time, he
was hired in as a new man,13 so I said in that case , why, I couldn 't see where Mr.
Seals had any claim to any back seniority.
At another point in his testimony, Staub stated that he agreed with the members
of the grievance committee of the Local Union that they had decided Seals' seniority
status properly, "because we had no control over what happened to Seals,while
he is working in a supervisory position ," and that he agreed Seals ' seniority should
date as of the time he returned to the bargaining unit on August 24, 1953.
tion with Mullally prior to August 24. "I wouldn't say either way," Cerlo testified.
Finally, when questioned by Company's counsel he reverted to his prior testimony that
the first time he learned of Seals' seniority problem was in September 1953.
33 When Seals was asked by the unions' counsel if he had filled out a new set of forms
for employment when he was recalled to a nonsupervisory job on August 24, he answered :
"No, no forms were filled out." ,
BOWEN PRODUCTS CORPORATION 741
B. Analysis of the testimony
1. Whether the Union demanded that the Company place Seals at the bottom of the
seniority list
That part of both Mullally's and Seals' testimony which deals with the salient issues
in this proceeding are contradicted by Cerio, the Local Union's president. Neverthe-
less, after observing the witnesses and analyzing the record and inferences to be
drawn therefrom, it is concluded-that the witnesses for the General Counsel should
be credited. Seals appeared to be a sincere and truthful witness and the events
narrated by him follow a logical sequence, which are consistent with the attendant
circumstances in this case. Although Mullally was hesitant in answering some of
the questions put to him, that part of his testimony in which he stated that the
Union insisted Seals' seniority should date from August 24 is credited for the
reasons hereinafter specified. His hesitancy on the witness stand might be ascribed
to his uncomfortable position, in that, the testimony he was giving contradicted
Cerio, the union president, the person with whom he would have to continue to
deal in the future. Cerio, on the other hand, was reluctant to state frankly any
matter that was adverse to the Union's interest so that at times his characteristic
approached evasion. His testimony was self-contradictory, inconsistent, and in
some aspects incredible. When his testimony at the hearing is compared with the
sworn statement 14 he made on April 15, 1954, prior to the hearing (General Counsel's
Exhibit No. 8), it is concluded that this is one of several indicia that what he testi-
fied to is unreliable and unworthy of belief. In addition, it taxes one 's credulity to
subscribe to Cerio's story that Seals' seniority status was not brought to his attention
until some time subsequent to August 24. When it is considered that Seals' seniority
status, would necessarily have had to be determined prior to the time he returned to
work on August 24, it is inconceivable that Cerio, the Union's president, would not
have been consulted by the Company with respect to this all important determination.
Moreover, it is uncontradicted that the union officials met with the company officials
before August 24. At that time the Company was faced with a dilemma caused
by the Union's insistence that Seals' seniority date from August 24, which resulted
in Seals being ranked last on the seniority roster. Thus, the Company was precluded
from hiring Seals for a job for which he was-the only one in the plant who had
the required qualifications, because other employees who were in a laid -off status at
the same time had higher ranks on the seniority roster than Seals.15 Since the
Company in agreeing to the August 24 date, resulted in Seals being ranked at the
bottom of the seniority list, the only way in which Seals could be eligible for the job
the Company wanted him placed in was to obtain the agreement of the Union to grant
Seals "preferred seniority," over those employees in a laid-off status who had a higher
seniority rank than Seals.
As Seals returned to work on August 24, it necessarily follows that the Union
in order to agree to Seals being granted "preferred seniority," not only knew but
discussed with the company officials Seals' seniority status prior to August 24. This
most significant circumstance casts further doubt upon the reliability of Cerio's testi-
mony .that he never, discussed Seals' seniority status with the Company prior to
August 24.
On the basis of Cerio's demeanor , his sworn affidavit, his evasive, inconsistent, and
contradictory testimony, which was not only improbable in many aspects but also
strained the credulity of the Trial Examiner, it is concluded his testimony is of
such doubtful character, that it is disregarded and rejected on all disputed matters
which-are relevant to the probative issues in this proceeding.1°
14 See D. Gottlieb & Co., 102 NLRB 1708, footnote 1.
15 It is significant that Staub, the International 's representative , testified that the rea-
son the Union agreed to Seals being accorded "preferred seniority" on August 24, was
because he was the only employee in the plant of all those in a laid-off status who was
qualified to perform the duties of the job for which the Company requested his services.
16Judge Learned Hand in Dyer v. MacDougall, 201 F. 2d 265, 269 (C . A. 2) stated:
[demeanor ] evidence may satisfy the tribunal, not only that the witness ' testimony
is not true , but that the truth is the opposite of his story , for the denial of one, who
has a motive to deny, may be uttered with such hesitation, discomfort , arrogance,
or defiance, as to give assurance that he is fabricating , and that if he is, there is no
'alternative but to assume the truth of what he denies.
This precept was followed in N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79,
86 (C. A. 9) affd . 346 U . S. 482 . Cf. N. L . R. B. v. Dinion Coil Co., 201 F. 2d 484, 487
(C. A. 2).
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The trier of these facts is convinced that economic considerations motivated the
Company in its purpose to date Seals ' seniority from the time he was employed
originally on January 16, 1940. Otherwise, he would have been rated .so low on
the seniority roster that in the event of a reduction in force, he would have been
the first employee laid off from his job. Moreover, it would be to the Company's
advantage to accord Seals' service credit from the time he was originally hired
because by granting him as much seniority as possible he would not, then be
vulnerable to a layoff. Thus, the Company by fostering a policy of holding in-
tact its oldest employees would benefit to the extent of having available the services
of•one of its most experienced employees who was so well regarded by the Com-
pany that he had been promoted from a rank-and-file job to a supervisory position.
The Union, on the other hand, did have motivation -for not being too kindly
disposed toward Seals. There is evidence that Cerio was hostile toward Seals
because of the latter's alleged antiunion attitude as manifested by Cerio 's statement
to Seals that he was fortunate the Union permitted him to become a member. Then
too, it is reasonable to infer, on the basis of the record, that there was a natural re-
luctance to accord a high seniority to a person who was the last member to join
the Union, particularly so, when it is considered that in the event of a layoff, em-
ployees who had been union members much longer than Seals would be laid off
before him. Inasmuch as the record is devoid of any substantial evidence that the
Company had any valid reason for taking the initiative for ranking Seals at the bot-
tom of the seniority list, the conclusion is inevitable that this action was taken
by the Company at the Union' s demand.
The Trial Examiner is convinced the Union was discriminatorily motivated by
proscribed considerations, including Seals' alleged antiunionism in demanding that
the Company reverse its intention to credit Seals with seniority from the date he
was originally hired. Even though the Union should contend that its demand that
Seals' seniority date of August 24 was its good-faith interpretation of the agreement
between the Company and Union, nevertheless, it is axiomatic that a statutory infrac-
tion is-not condoned by an honest mistake nor justified by "good faith." 17 'See Don
Juan Co., 89 NLRB 1425, 1427.
Against this simple fact pattern, Respondent Unions' efforts to exonerate them-
selves from a finding of unfair labor practice are singularly unimpressive. The
variations in the Union's contentions, namely: (1) The decision to date Seals' sen-
iority from August 24 was the Company's alone; (2) that it was unaware that Seals
even had a seniority grievance; and (3) when Seals returned to the bargaining unit
on August 24, his status was that of a "rehire" or new employee, casts doubt upon
the meritoriousness of the Union's defense. - Shifting reasons are often indicative
of a discriminatory intent. Dant and Russell Ltd., 92 NLRB 307, 320; Intertown
Corporation, 90 NLRB 1145, 1188. The giving of contradictory reasons may, of
course, be considered in determining the real motive; N.L. R. B. v. Condensor Corp.
of America, 128 F.2d 67 (C. A. 3); and inconsistent explanations is a circumstance
indicating its motivation. N. L. R. B. v. Somerset Shoe Company, 111 F. 2d 68
(C. A. 1). Finally, there is the variance in the Unions' attempts in this proceeding
to explain Seals being ranked last on the seniority roster from the explanation given
Seals at the time he was so ranked. At that time, the Union told Seals that the, date
of his seniority was.determined on the basis Qt, when he returned to the bargaining
unit but at the hearing the ,Union claimed that for'purposes of `computing his sen-
iority, he'was a- new employee as of August 24. The Union also asserted another
reason' for demanding that Seals' seniority should be computed from August 24, as
Mullally testified on his direct examination: "Reluctantly, we accepted or I- accepted
Mr. Cerio's contention that as Mr. Seals -had never' been a member of the Union
that he had no seniority rights."
Upon a study,of the evidence on the record as a ,whole, and based upon the re-
liable, probative, and substantial' testimony taken in, this case, it is concluded that
Respondent Local Union with the affirmance of the, Respondent International
Union 18 ,demanded, that the Respondent Company 'compute-Seals' seniority begin-
ning from the time he was recalled on August 24, 1953, to a, nonsupervisory 'job
within the, bargaining unit. 'As the 'Charging Party; Seals, would not have been
laid off on October 20, absent the Respondent Company's compliance with the union
demand, it ' is'fburid that the Respondent-Company in order to improve its relations
with 'the`Local and'avoid' further' troublesome incidents, permitted' the Union-to:uni-
11 N. L. It. B. v. Illinois Tool Work's,' 153 F. 2d 811, 814'(C. A.'7) N. L. R: B.'v.,Hud-
Bon Afotor'Car'"Co 'i28-F. 2d'528,"532-33 (C. A.56) N. L.R. B, v.•Perfect,Circle 0o.,1162
F: 2d 566, 569 (C: A^. 7). .. ;:)
28 See pp. 255 and 256 of the transcript. a'J.
BOWEN PRODUCTS CORPORATION 743
laterally arrogate to itself control over employment, and to use such control to ac-
complish Seals' layoff which was clearly discriminatory.19 The Union caused com-
pany discrimination which resulted when the Company enforced the demand of the
Union as to Seals' seniority and inherently encouraged union membership by dem-
onstrating the power of the Local to protect the job of its members at the expense
of others toward whom it was not kindly disposed.20 The insistence of the Respond-
ent Unions that in computing Seals' seniority he should not receive credit for the
time prior to August 24, violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act,
and the Respondent Company's yielding to the Unions' pressure, which eventually
resulted in Seals being laid off on October 20, 1953, was an unfair labor practice
within the meaning of Section 8. (a) (3) and 8 (a) (1) of the Act. See United
Mine Workers, 90 NLRB 436, 437.
2.- The method used in computing Seals' seniority which eventually resulted in him
being laid off on October 20
Seniority is preference in employment based upon length of service.21 However,
this preference is not absolute, but is limited by many factors which determine the
value of seniority to different groups of workers. When forces are curtailed, man-
agement is confronted frequently with the problem of layoff or demotion of fore-
men as well as the curtailment of the regular working force. It is reasonable for
employers to look upon foremen as their most highly trained and valuable em-
ployees and thus contend that management should have an unqualified right to re-
tain foremen even if rank-and-file employees are displaced thereby. Labor organ-
izations , on the other hand, it is equally reasonable to suppose, feel that, since tore-
men constitute a separate classification of employees not eligible for union member-
ship, they should not be allowed to take available work from a bargaining unit
employee 22
- Seniority can affect the tenure of employment of individual employees. By its
very nature, seniority is a relative matter and the denial of seniority to Seals prior
to the time he returned to the bargaining unit and joined the Union, necessarily
improved the seniority of other employees who were hired after Seals. Thus, when
Seals originally came to work for the Company, all employees within the bargaining
unit had acquired a fixed relative seniority which, but for the -Unions' insistence
that Seals not receive credit for the time.he was employed prior to August 24 would
have remained relatively constant , except, of course, for normal personnel turnover
and possibly', promotion to a position outside the bargaining unit. The effect of
the Respondent Unions' demand that Seals be denied any seniority prior to his re-
turn to the bargaining unit and joining the Union, and at the-same time permitting
other bargaining unit employees to accrue seniority for the corresponding period,
changed the relative seniority to the detriment of Seals.23 Thus, the effect of the
Unions' action with respect to Seals' seniority was to penalize him because he had
not been a member of- the Union. By this demand, in which- the Company ac-
quiesced, the Union and Company impaired Seals' seniority and affected' his tenure
of-'employment as evidenced by him being the first employee to be laid off in a reduc-
tion in force on Octobei 20, 1953. . - - .
Thus, the determination as to which employee would be laid off first in the event
of a reduction in force, was, in part, made on the basis of when an employee joined
the Union and not when he was originally employed by the Company. The effect
of this joint action by the Company and Union was to encourage and actually re-
quire an- employee to become a member of the Respondent Union as soon as he was
hired. Where, as here, the contract between the Company and Union contained a
" Air Products Inc., 91 NLRB 1381 ; Pacific Intermountain Express Company, 107
NLRB 837 ; Printz Leather Co., 94 NLRB 1312, 1327.
21 See N. 'L. R. B. v 'Iiiternatson'al Brotherhood of Teamsters, 74 Sup. Ct' 323, 335-7,
where the union violated-Section 8 (b) (2) when, -pursuant 'to an agreement- with .the
employer whereby it was to determine all questions of seniority in employment, it moved
a union member to last place' on the seniority list because he became delinquent in the
payment of dues. The Court held it is not necessary to establish the specific intent of
the employer to encourage union membership because such intent can be inferred from
the- showing that such discrimination had `the effect of encouragement. Id.' at 337 et seq.
21 See article XII, section-1; General Counsel's Exhibit No 3 -
>> 22 See Seniority Policies and-Procedures, Harbison (1941) ; Ford Motor Co. v. Huffman,
345 U :-S. 330 ; Aeronautical Lodge v. Campbell, 337 U 'S 521. • -
It, will be recalled that' Seals -held a 'bargaining unit job 'from January 16, 1940, to
October 1, 1945, when he was promoted to•a supervisor's position. --
379288-56-vol . 113-48
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-security provision requiring employees to become members of the Union 30
days after their employment, the practical effect of basing seniority on the date an
employee joined the Union was to deny him the 30-day grace period provided for in
the provision of Section 8 (a) (3) of the Act.
General Counsel's Exhibit No. 3 is the collective-bargaining agreement that was
in effect between the Company and the Local for the period beginning September 28,
1953, and ending July 28, 1954. General Counsel's Exhibit No. 4 is the contract
that was in effect between the parties from July 28, 1952, to July 28, 1953, except
that the latter contract also contained article XIII, section 10, page 44 of General
Counsel's Exhibit No. 3; and it was further stipulated that the July 28, 1952, to July
28, 1953, contract was extended by oral agreement between the Company and Local
to September 28, 1953, at which time General Counsel's Exhibit No. 3 was executed.
All these various agreements contained a union-security provision.24
Employees have no statutory or constitutional right to seniority. Such right exists
solely by reason of contract 25 In the instant case, the contract which was in effect
between the Company and the Union when Seals was both laid off from his super-
visor's job on August 6, and later recalled to a nonsupervisory position on August 24,
provided that a bargaining unit employee promoted to a supervisor' s position, shall
accumulate seniority for 6 months from the time he became a supervisor.26 The
same contract also contained a provision that when a bargaining unit employee who
was promoted to a supervisor is later demoted, he shall not lose any seniority rights.
The question whether these two provisions are consistent , inconsistent, or ambiguous
is not before the trier of these facts. It is sufficient for purposes of resolving the par-
ticular issues in this case to hold merely that in any event, a reasonable interpretation
of Seals' contract rights entitled him either to uninterrupted seniority dating continu-
ously from the time he was employed originally on January 16, 1940; or seniority
computed from January 16, 1940, to 6 months beyond October 1, 1945, when he
was promoted to supervisor plus any additional seniority he might accumulate after
August 24, 1953, the date he returned to the bargaining unit. Since it has been stipu-
lated that under either interpretation, Seals would not have been laid off on October
20, 1953, it is not necessary to determine which of these two interpretations is correct.
Article XIII, section 10, of General Counsel's Exhibit No. 3, which was also con-
tained in the contract in effect at the time Seals was recalled to a position within the
bargaining unit on August 24, 1953, provides:
An employee who is a member of the bargaining unit who is transferred or pro-
moted to a job outside the bargaining unit will accumulate seniority for six
months from the date of such transfer or promotion.
Article XVI, section 4, of General Counsel's Exhibit No. 4 which was in effect when
Seals was demoted on August 6, 1953, provides:
In the event any employee who has been, or may be promoted to positions not
covered by the Agreement, is demoted, such employee shall lose no seniority
rights.
General Counsel's Exhibit No. 3, which was the agreement in effect on October
20, 1953, the date Seals was laid off, provides:
In the event any employee who has been, or may be, promoted to positions not
covered by this Agreement, is demoted, such employee shall lose no seniority
rights accrued under this contract.
Article XII, section 2, B, page 34, of General Counsel's Exhibit No. 3, provides:
In determining an employee's length of service for seniority purposes, computa-
tion will begin from the date of the employee's hire or rehire 27 at Bowen
Products Corporation.
Moreover, when the seniority provisions in the agreement between the Company
and the Union, supra, are considered in a frame of reference with the Unions' refusal
u Article XII, section 2, A, (2) of both General Counsel's Exhibits Nos. 8 and 4 pro-
vide that seniority shall be plantwide.
21 Starke v. N. Y., Chicago & St. Louis R. R., 180 F. 2d 569 (C. A. 7, 1950).
0 It should be noted that this provision is silent as to what shall be such an employee's
seniority rights in the event he is subsequently demoted to a nonsupervisory position.
27 The Union's contention that Seals was "rehired" on August 24 is rejected for two
reasons : First, Seals did not fill out a new set of employment forms at that time ; and
secondly, the term "rehire" in its ordinary dictionary sense means the hiring of a former
employee which description does not apply to Seals.
BOWEN PRODUCTS CORPORATION 745
to grant Seals any seniority prior to his return to the bargaining unit, the obvious
conclusion is that the Unions' interpretation of Seals' seniority rights was so unrea-
sonable as to be discriminatory. The unreasonable and discriminatory interpretation
placed by the Union on Seals' seniority rights, insofar as it has relevancy to the issues
in this proceeding, casts doubt upon the bona fides of the Unions' motivation in insist-
ing that the Company compute Seals' seniority beginning from the time he returned
to the bargaining unit on August 24, 1953. Corroborative of this conclusion is the
fact that on May 10, 1954, the Unions receded from their position that Seals' senior-
ity should begin on August 24, and agreed to grant him seniority from his original
date of hire on January 16, 1940, to 6 months beyond October 1, 1945, when he
became a supervisor. Nor is it without significance that the seniority list (General
Counsel's Exhibit No. 6) has a column captioned "Date of Hire" which might appear
to indicate that length of prior service with the Company is the criterion for deter-
mining the bargaining unit employees' numerical ranking on the seniority roster.28
It will be recalled that Seals had been a member of, and was being represented by
the Local for approximately 2 months when he was laid off on October 20. As a
union member, he was entitled to the same protection and representation by the
Union with respect to his terms of employment as was afforded to the other union
members in the terms and conditions of their employment. The Union, as Seals'
representative, had almost 2 months in which to countermand its decision that he
was not entitled to any seniority prior to August 24. Under the circumstances, its
failure to act, which ultimately resulted in Seals' layoff on October 20, is additional
indication that the Union was discriminatorily motivated.
"A wide range of reasonableness must be allowed a statutory bargaining represent-
ative in serving the unit it represents, subject always to the complete good faith and--
honesty of purpose in the exercise of its discretion.. ." 29 Moreover, "The
[statutory] representative is clothed with power not unlike that of a legislature which
is subject to constitutional limitations on its power to . . . discriminate against the
rights of those for whom it legislates and which is also under an affirmative consti-
tutional duty equally to protect those rights." 30 Therefore, "the fair interpretation
is that the organization chosen to represent a craft is to represent all of its
members, the majority as well as the minority, and it is to act for and not against
those whom it represent." 31
Finally, the Respondent Unions assert as a further defense that this proceeding is
barred by the limitation provisions of Section 10 (b) of the Act. Section 10 (b) of
the amended Act establishes a 6-month period of limitations upon the filing of charges.
It is contended that the determination to ascribe an August 24 seniority date to Seals
occurred more than 6 months prior to the filing of the charges against the Local on
March 26, 1954, and the International on June 1, 1954. This argument is based on
the premise that the unfair labor practice occurred on or about August 24, when the
Company and Union decided that Seals' seniority should be computed as of that
date. This contention is untenable because the unfair labor practice did not occur
when the Union and Company agreed on the August 24 seniority date, but rather,
when it was applied and given effect to in the layoff of Seals on October 20, 1953,
which is well within the statutory limitation of Section 10 (b).32
H. THE REMEDY
As Seals, who was discriminatorily laid off on October 20, 1953, was restored to
his job on May 10, 1954, no order of reinstatement is necessary. It will be recom-
mended that the Respondent Unions notify in writing both the Company and Seals
that they will not insist that Seals' seniority be computed beginning on August 24,
1953, when he returned to the bargaining unit. Furthermore, it will be recommended
that the Respondents jointly and severally, make whole Seals for any loss of pay
suffered as a result of the discrimination against him, by payment to him of a sum of
money equal to that which he normally would have earned as wages from the date
of his layoff on October 20, 1953, to May 10, 1954, when he was recalled to work
from his layoff, less his net earnings, if any, during such period. Crossett Lumber
s Whether "length of prior service" includes or excludes time in a supervisory position
is not here decided.
N Ford Motor Company v. Huffman, supra, at page 338.
OD Steele v . Louisville and Nashville Railroad Co., 323 U. S. 192, 198.
a Id. at page 202 ; Rockaway News Supply Company, Inc., 94 NLRB 1056, 1059.
n Potlatch Forests, Inc., 87 NLRB 1193, 1210, 1211; Pennacoven, Inc., 94 NLRB 175
at 191 , 192; North East Texas Motor Lines, Inc., et al., 109 NLRB 1147; N. L.. R. B. v.
McGraw and Co., 206 F. 2d 835 , 839 (C. A. 8). 1
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, 8 NLRB 440. Back pay shall be computed in accordance with the Board's
usual policies . F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing , and upon the entire record in the case, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. Bowen Products Corporation is an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act.
2. International Union, United Automobile, Aircraft, and Agricultural Implement
Workers of America, CIO, Local 611, and International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America, CIO, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of Charles
L. Seals, thereby encouraging membership in Respondent Unions, Respondent Com-
pany has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, Respondent Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
5. By attempting to cause and causing Respondent Company to discriminate against
Charles L. Seals in violation of Section 8 (a) (3) of the Act, Respondent Unions have
engaged in and are engaging in unfair labor practices within the meaning of Section
8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act, Respondent Unions have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (b) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act. .
[Recommendations omitted from publication.]
United States Rubber Company and Textile Workers Union of
America, CIO , Petitioner . Case No. 10-RC--074. .August 16,
1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Edwin R. Hancock, hearing
.officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of all of the Employer's production
and maintenance employees at its Shelbyville, Tennessee, plant, with
the usual exclusions. The Employer and the Petitioner agree, basi-
113 NLRB No. 80.