Chicago Magnesium Casting Co.

National Labor Relations Board - Board Decisions

Jan 29, 1979

240 N.L.R.B. 400 (N.L.R.B. 1979)

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago Magnesium Castings Company and David
Session
The Chicago Foundrymen's Association and Chicago
Magnesium Castings Company and Chicago and Vi-
cinity Conference Board of the International Mold-
ers and Allied Workers Union, AFL-CIO-CLC.
Cases 13 CA 15981, 13-CA-16065, and 13-CA-
16365
January 29. 1979
DECISION AND ORDER
BY MEMBERS JENKINS, ML RI'IIY, ANDI) TR ISl)AI,.
On September 29, 1978, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, Respondent Chicago
Magnesium Castings Company filed exceptions, Re-
spondent Chicago Foundrymen's Association filed a
posthearing brief, and the General Counsel filed a
brief in support of the Administrative aw Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.
IThe Respondent (Company has excepted to certain credibility findings
made bhy the Administrative I.aw Judge. It is the Board's established policy
not t overrule an Administrative Iaw Judge's resolutions with respect to
credibility unless the clear preponderance of all the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producs.
Inr.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d ('it. 1951). We hase
carefully examined the record and find no basis for reversing his findings
In the remedy section of his Decision and in the recommended Order
and notice the Administrative Law Judge recommended that Respondent
Company be required to honor the terms of the collective-bargaining agree-
ment between the Union and Respondent Chicago Fundrymen's Associa-
tion "until such time as it could lawfully withdraw from membership in the
Respondent Association." We do not adopt this recommendation to the
extent that it suggests that Respondent Company's withdrawal from mem-
bership in Respondent Association, stlnding alione, .ilcted Sec 8(a}5) of
the Act, inasmuch as withdrawal from a multiemployer bargaining unit is
not in and of itself unlawful. Rather. Respondent Company's failure to
honor the terms of the contract negotiated by Respondent Association and
the Union constitutes unlawful conduct. Ringside l.iquors, Inc., d h a Dino's
Iounge and (asell & Ireidmran. In.. d au King of (luhs. 237 NLRB 31)
(1978). We shall therefore tlodif I lihe Adnrllllistiltisc Law Judge's recom-
mended Order and notice accordingly.
We note also that the Administrative l aw Judge incorrectly stated in the
last paragraph if sec. ' of his Decision that Respondent Company with-
drew from Respondent Association on March 31, 1976, rather than March
31. 1977
240 NLRB No. 57
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondents, Chicago
Magnesium Castings Company, Blue Island, Illinois,
and the Chicago Foundrymen's Association, West-
chester, Illinois, their officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraphs A(l)(d)
and A(2)(c), respectively:
"(d) Refusing to bargain collectively in good faith
with the Chicago and Vicinity Conference Board of
the International Molders and Allied Workers
Union, AFL-CIO CLC, by failing and refusing to
honor the terms and provisions of the Chicago
Foundrymen's Association's collective-bargaining
agreement with the Union, including the processing
of employees' grievances under the contractual griev-
ance procedure."
"(c) Upon request, bargain collectively in good
faith by honoring the terms and provisions of the
Chicago Foundrymen's Association's collective-bar-
gaining agreement with the Chicago and Vicinity
Conference Board of the International Molders and
Allied Workers Union, AFL CIO C'LC, as applied
to Respondent Company, including processing em-
ployees' grievances under the contractual grievance
procedure."
2. Substitute the following for paragraphs B(l)(a)
and B(2)(a), respectively:
"(a) Refusing to bargain collectively in good faith
with the Chicago and Vicinity Conference Board of
the International Molders and Allied Workers
Union. AFL CIO CLC, by failing and refusing to
honor the terms and provisions of the Respondent
Association's collective-bargaining agreement with
the Union as applied to the Respondent Company,
including the processing of employee grievances un-
der that agreement, with respect to bargaining unit
employees of Chicago Magnesium Castings Compa-
ny."
"(a) Upon request, bargain collectively in good
faith with the above-named Union as the exclusive
representative of the employees in the appropriate
unit described above, by honoring all the terms and
provisions of the Respondent Association's collec-
tive-bargaining agreement with the Union as applied
to the Respondent Company, including the pro-
cessing of grievances of bargaining unit employees of
the Respondent Company."
CHICAGO MAGNESIUM CASTINGS CO. 401
3. Substitute the attached notices for those of the
Administrative Law Judge.
APPENDIX A
NOTICE To EMPI(OYEES
POSEI) BY ORDER Of III.
NAIIONAI LABOR RE.AII()ONS BOARI
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence it has been decided that
we violated the law, and we have been ordered to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
WE Wl. NOT maintain or enforce any rule
prohibiting our employees from engaging in
union activities on company time, and WE WILL
delete from our employee handbook the provi-
sion set forth on page 8, item II, I b, which pro-
hibits union activities on company time.
WE WILL N interfere with or participate in
our employees' internal union elections or union
activities.
WE Will NOI lay off or otherwise discriminate
against our employees with regard to the hire
and tenure of their employment or any other
term or condition of employment for engaging
in union activity or concerted activity for their
mutual aid or protection.
WF WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act.
WE WILL offer David Session immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges, and WF
WILl. make him whole for any loss of earnings he
may have suffered as a result of our discrimina-
tion against him.
WE WLL, upon request, bargain collectively in
good faith with the Chicago and Vicinity Con-
ference Board of the International Molders and
Allied Workers Union, AFL-CIO-CLC, by
honoring the terms and provisions of the Chica-
go Foundrymen's Association's collective-bar-
gaining agreement with that Union as applied to
the Chicago Magnesium Castings Company. in-
cluding the processing of grievances of our em-
ployees in the appropriate unit under the con-
tractual grievance procedure.
CHICA(i(O MA(NESItM CASIINGS COMPANY
APPENDIX B
NolI('E. To EI, IO, EIs
POSIE- B ORDER 01. I1E
NATIONAl LABOR RELAIIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nit 5 to present their evidence, it has been decided
that we violated the law, and we have been ordered
to post this notice. We intend to carry out the Order
of the Board and abide by the following:
WE WILL NOI in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain collectively
with the Chicago and Vicinity Conference
Board of the International Molders and Allied
Workers Union. AFL CIO-CLC, as the exclu-
sive collective-bargaining representative of all
the employees of Chicago Magnesium Castings
Company in the appropriate unit described be-
low by honoring all the terms and provisions of
our collective-bargaining agreement with the
Chicago and Vicinity Conference Board of the
International Molders and Allied Workers
Union, AFL CIO-CLC, as applied to the C'hi-
cago Magnesium C('astings Company. including
processing of bargaining unit employees' griev-
ances under the contractual grievance proce-
dure. The appropriate collectiv:e bargaining unit
is:
All foundry production and maintenance em-
ployees of member companies of the Associa-
tion. excluding all office clerical employees, jani-
tors, watchmen, supervisors as defined in the
National Labor Relations Act, as amended, and
employees employed in another collective-bar-
gaining unit represented by another duly author-
ized labor organization.
THE CHI( AGO FOUNDRY MEN'S AssocIATION
DECISION
STATEMENI OF tHE CASE
RI(CHARD L. DENISON. Administrative Law Judge. This
consolidated proceeding was heard at Chicago, Illinois. on
October 17, 18, 19, and 20, 1977, based on charges filed by
David Session, an individual, in Cases 13 CA 15981 and
13-CA 16065, on November 15 and December 16, 1976,
respectively; and by Chicago and Vicinity Conference
Board of the International Molders and Allied Workers
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, AFL-CIO CLC, the Union herein, on December
23, 1976. The consolidated complaint issued May 24, 1977,
and amended October 5, 1977, alleges that Respondent
Company violated Section 8(a)(I) of the Act by promulgat-
ing, maintaining, and enforcing an unlawful no-solicitation
rule in its employee handbook, and by interfering with its
employees' internal union election for shop chairman by
contacting eligible employee voters, directing employees to
attend the election, permitting the election to be held on
paid working time, and by formally announcing the results
of the election. It is also alleged that Respondent Company
violated Section 8(a)(1) and (3) of the Act by laying off
Charging Party David Session on or about December 22,
1976, and thereafter failing and refusing to recall him, be-
cause of his union and/or protected concerted activities.
Lastly, it is alleged that Respondent Company and Re-
spondent Association violated Section 8(a)(1), (a)(5), and
(d) of the Act in that at all times since on or about March
28, 1977, the Respondents have failed and refused to pro-
cess grievances in accordance with section 8. 1, step 2 of the
contractual grievance procedure. The Respondents' an-
swers deny the allegations of unfair labor practices alleged
in the complaint, as amended. The General Counsel and
Respondents have filed briefs.'
Upon the entire record in the case, including my obser-
vation of the witnesses, and upon consideration of the
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Chicago Magnesium Castings Company, Respondent
Company, is an Illinois corporation engaged in the busi-
ness of manufacturing magnesium and aluminum castings
at a plant located at Blue Island, Illinois. During the 12-
month period immediately preceding the issuance of the
complaint in this matter, Respondent Company in the
course and conduct of its business operations sold and
shipped products valued in excess of $50,000 directly to
points outside the State of Illinois. As admitted in its an-
swer, Respondent Company is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Chicago Foundrymen's Association, Respondent
Association herein, is and has been at all times material
herein, an Illinois not-for-profit corporation with an office
located in Westchester, Illinois, from which it engages in
the service of representing its member firms in collective
bargaining and labor relations matters. During the 12-
month period immediately preceding the issuance of the
complaint in this matter, a representative period, the ap-
proximately 21 members of Respondent Association have
sold and shipped products valued in excess of $50,000 di-
rectly to points located outside the State of Illinois. During
('ounsel for the General Counsel's unopposed post-hearing motion to
correct the transcript is granted, except for item 84. on p. 6 of that motion.
Likewise, counsel for Respondent Association's unopposed post-hearing
motion to correct the transcript is also granted.
Counsel for the General Counsel's unopposed post-hearing motion to
correct the duplicate exhibit file by substituting a correctly marked copy of
G.(. Exh. 26 for a duplicate copy of G.(C. Exh. 25., is granted, since the
original exhibits are correctly identified in this respect.
the same period of time the members of Respondent Asso-
ciation have also purchased and received goods valued in
excess of $50,000 directly from points outside the State of
Illinois. As admitted in its answer, I find that at all times
material herein Respondent Association is now and has
been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
t1 LABOR ORGANIZATION
As admitted in Respondents' answers, the Chicago and
Vicinity Conference Board of the International Molders
and Allied Workers Union, AFL-CIO-CLC, and the In-
ternational Molders and Allied Workers Union, Local No.
233, are each labor organizations within the meaning of
Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory Status
Based upon the admissions in Respondent Company's
answer and the testimony of both the General Counsel's
and the Respondents' witnesses, including in most in-
stances their own testimony, I find that at all times mate-
rial herein the following named persons occupied the posi-
tions set opposite their respective names, and have been,
and are now, agents of Respondent acting on its behalf and
are supervisors within the meaning of Section 2(11) of the
Act:
Donald R. Burnett
Ronald Larson
Calvin Trock
John Svoboda
President
Plant Manager
Foundry Superintendent
Foreman
B. The Respondent Company's No-Solicitation Rule and
Other Background Events
Respondent Company manufactures magnesium and
aluminum castings at Blue Island, Illinois, utilizing two
classifications of employees, miscellaneous and journey-
men. Since about 1970 Local No. 233 has been their collec-
tive-bargaining representative. Respondent Company be-
came a member of Respondent Association on or about
July 1, 1973, and shortly thereafter a party to Respondent
Association's contract with the Chicago and Vicinity Con-
ference Board of the International Molders and Allied
Workers Union, AFL-CIO-CLC.2 Following the termina-
tion of that agreement on April 30, 1976, a strike of Re-
spondent Association's members' employees ensued which
terminated with the successful negotiation of a new con-
tract for the period June 9, 1976, through April 30, 1979.
The current collective-bargaining agreement provides a
two-step grievance procedure. Step I calls for exploration
of the grievance by the employee, a member of the shop
committee, and a company representative. If not settled at
that level, step 2 permits the matter to be submitted in
writing to the Union from whence it proceeds to a griev-
ance committee composed of four association and four
2Hereafter referred to as the Union.
CHICAGO MAGNESIUM CASTINGS CO. 403
union members. Since there is no provision for arbitration.
the contract provides that the Union may strike if the
grievance is denied following completion of the second
step.
Following the distribution of the newly negotiated 1976
contract, David Session, who had worked for 13 years as a
journeyman molder for Respondent Company and who
had served as union shop chairman since his election in
1973, received a complaint in September 1976 from the die
cast machine operators that they were not receiving their
proper wage rates as set forth in the agreement. After Ses-
sion contacted the Union's staff representative, Leroy
Ware, a meeting was held on September 16. 1976, between
Session and Ware and Plant Manager Ronald Larson, but
no resolution of the problem was achieved. Pursuant to
Ware's instructions Session then filed a grievance concern-
ing the matter. Soon afterward Session filed another griev-
ance on behalf of the Union's shop committeeman, labora-
tory technician Marilyn Reynolds, who had complained
that she was making less than the minimum rate under the
new contract. These grievances were discussed but not re-
solved at a meeting on October 18, 1976. among Ware and
Session and Larson and three other members of the associ-
ation grievance committee. Since the Company insisted
that the wage rates would not be changed, Session. with
Ware's approval, polled the employees later that day on
the question of whether or not they would be willing to
strike over the wage issue.
On the following day Larson interrogated Session at his
machine concerning whether or not there was going to be a
strike.3 Larson did not reply to Session's question concern-
ing where Larson had obtained this information, but con-
tinued by asking if Session had met with the employees
concerning the strike. When Session agreed that he had.
Larson questioned him about when the strike would occur.
Session parried the question by stating that since Larson
knew everything else, he should know when the strike
would take place, and the conversation ended.
Within a day or two thereafter. Session informed Ware
that the results of his poll revealed inadequate employee
support for the strike, but Ware responded that Session
should not worry since the Union had obtained a strike
sanction from the International which provided them with
"leverage" in further discussions with the Company and
the Association. On October 21 the Union's International
vice president, William Bonifer. contacted Ware upon in-
structions from the Union's International president. and a
meeting was arranged with Respondent Company for the
following day. This meeting began with a dispute over
whether or not Session would be allowed to participate,
based on Larson's claim that Session was losing too much
worktime. However. Larson allowed the union representa-
tives to talk with Session when Bonifer insisted that there
would be no meeting unless Session was present. The union
representatives then talked with Session in the plant con-
cerning the pay rates. Then Larson took the union repre-
sentatives to his office and showed them a list of job classi-
fications and pay rates dated 1973 which were in effect
this incident was not alleged as a violation of Sec. 8(a)( I) of the Act.
and was not fully litigated.
when Respondent Company joined Respondent Associa-
tion. Bonifer then explained that the wage rates currently
applicable were those listed in the 1976 contract. No agree-
ment was reached.
A few days later. when Bonifer informed Respondent
Association's attorney, Bernard Echlin, that the Union had
obtained a strike sanction because of its dispute with Re-
spondent Company, Echlin threatened to sue the Interna-
tional Union and the Local if the sanction were utilized
because a complete grievance committee had not been
present when Ware and Session discussed the problem at
Respondent Company, and because they had failed to no-
tify the Association in accordance with the contract. This
conversation prompted the Union to send out letters for-
mally requesting a step 2 grievance meeting relating to the
grievances which Session had filed. This meeting was held
on November 3 in the lunchroom of Respondent ('ompa-
ny. It was attended by Bonifer, Ware, the Union's district
representative, Toby Truitt. and Session on behalf of the
Union, and Association President John K. Hodgson. chair-
man of the grievance committee, Echlin. Larson, and Rob-
ert Phelps. another foundry owner in his capacity as com-
mittee member. Dunng the meeting Bonifer insisted that
Respondent Company was obligated to raise its wage rates
to those set forth in the current contract with the Associa-
tion, but Echlin stated that he did not feel they were re-
quired to do so. The meeting ended without an agreement
on the question, but the parties agreed to consider the mat-
ter further at a meeting on November 11, 1976. On Novem-
ber 10 Superintendent Calvin Trock informed Session that
since there was to be a union management meeting the
following day, he was going to lay Session off that day
because he couldn't make enough molds to pour. Session
had never before been laid off on a day on which he was to
participate in a meeting between the Union and manage-
ment.4 Trock also told Session that John Walker, a melter
who poured metal into the molds Session made, would also
be laid off on November II1.
At the hearing in this matter the parties stipulated that at
all times material to the issues raised by the complaint,
Respondent Company's employee handbook, introduced
as General Counsel's Exhibit 2, was either distributed or
available to the employees of the Company. The handbook
is not dated. On page 8 under section II, Union & Senior-
ity, there appears the following rule:
b. Any matters concerning union activities should be
taken up with your union shop committee. This ac-
tivity is not to take place on company time.
Calvin Trock testified that this rule was not arrived at
through negotiation with the Union. It is clear from the
record that the rule has been maintained in effect at all
times material herein, although there is no evidence in the
record concerning the date of its promulgation. The Board
has frequently held such rules invalid in that they are am-
biguous and susceptible to the interpretation that they pro-
hibit solicitation and other union activities during all paid
time including nonworking time such as breaks and lunch
periods. Florida Steel Corporation. 215 NLRB 97 (1974);
4 The comnplaint does not alege tht, IlCIldetll .c li s ,I.oltl or the Act
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Great Atlantic & Pacific Tea Co., Inc., 162 NLRB 1182
(1967). Consequently, I find that the maintenance of Re-
spondent Company's rule herein violates Section 8(a)(1) of
the Act even though it appears from evidence in the record
discussed herein, that it has not been consistently enforced.
I also find that this violation of the Act was not cured by
Respondent's December 21, 1976, letter to the effect that
the rule was intended to apply only during "working time,"
since this letter was not posted, but was simply handed to
Session alone. It is therefore clear that Respondent
Company's publication of its disclaimer was inadequate for
the purpose of absolving it from liability for a violation of
the Act. Finally, the record reveals that Respondent Com-
pany has not shown special circumstances which would
excuse it from the consequence of maintaining a presump-
tively invalid rule.
C. The Events Relating to the Respondent Companv's
Alleged Unlawful Interference With and Participation in the
November 11, 1976, Union Shop Chairman Election
A week or two before the November II grievance meet-
ing employee Tellie Gay approached Calvin Trock about a
union election for shop chairman to replace David Session.
Gay stated that he did not think it was fair that although
he had more seniority than Session, Session had supersen-
iority under the contract for purposes of layoff and recall.
Trock responded, "More power to you." Thereafter, Trock
and Company President Donald Burnett discussed the
matter, and on November 10 or I Trock told Burnett that
the employees would try to contact the Union about the
matter when they came to the plant for the grievance meet-
ing and would try to have an election that day. Thus, prior
to the commencement of the November I 1th grievance
hearing, employee Erwin Gerhardt told Toby Truitt that
employees at the Company wanted to hold a shop chair-
man election, but Truitt explained that the correct proce-
dure for such action was to circulate a petition for nomina-
tions and that if more than one nomination was received
by the Union, Mr. Pitts, who was responsible for holding
all the elections for the Local, would conduct an election at
the plant during nonworking time such as lunch break.
The November I I meeting produced an agreement be-
tween the Union and Respondent Association concerning
the wage rates to be paid laboratory technicians and core
mold assemblers, but no agreement was reached over the
rates to be paid die casters.5 The meeting also resolved
Session's grievance concerning having been laid off on the
day of the grievance meeting by awarding him 2 hours'
pay, in addition to discussing another grievance filed by
Session on October 22.
After the meeting, as the union representatives were
leaving, Gerhardt again appeared and asked what Truitt
This agreement was later reduced to writing. but a dispute subsequently
arose over whether it consisted of one or two pages at the time it was signed.
Although I find it unnecessary for the purposes of this proceeding to resolve
this subsidiary issue. the agreement. in evidence, bearing the signatures of
Hodgson for Respondent Association and I ruitt for the Conference Board.
clearly states that a list of joh classifications and rates of pay at Chicago
Magnesium Castings ('ompan) are" . .attached hereto and made a part
hereof . . "
was going to do about the election. Once more Truitt re-
ferred Gerhardt to Mr. Pitts.
After the meeting, Session went home. He noticed that
Larson was watching him as he left the company parking
lot. Although no one told Session that an election for shop
chairman was to be held that day, credible testimony by
employee Monroe Westwood reveals that Westwood, who
had been on layoff status, received a telephone call from
Calvin Trock about 10:30 a.m. in which Trock stated,
"They were having an election and they wanted me to
come out and vote." In addition, Trock requested that
Westwood bring laid-off employee John Walker to the
plant to vote. Around 2 p.m. that afternoon Burnett called
Trock to his office and told him to let all of the employees
leave their work to go to a union meeting and to quickly
spread word of the meeting. Burnett had granted Erwin
Gerhardt permission to hold the election at a time when
the employees were normally working. Pursuant to
Burnett's instructions Trock went through the plant in-
forming various employees about the meeting while Tellie
Gay likewise spread the word.6
The election, which was conducted by Tellie Gay, Erna
Caswel, and Erwin Gerhardt in the company lunchroom
while all the participants remained on the clock, resulted in
a one-vote victory for Gay, which was publicized in the
company newsletter on the following day, although the
Union refused to recognize Gay as Session's replacement
because no official of the Union had presided over the
election.
I find that Respondent Company violated Section
8(a)(l) of the Act by interfering with and participating in
its employees' union activities relating to the November 11
shop chairman election in the hope that David Session
would be replaced as shop chairman. This conclusion is
substantiated by testimony from both the General
Counsel's and Respondents' witnesses. Thus, although
Burnett testified that Respondent Company's policy was to
discourage nonwork activity during working time, Burnett
and Trock not only permitted the election to be conducted
while employees remained on the clock, but also blatantly
rounded up eligible employee voters both inside and out-
side the plant. Finally, it is clear that the Company at-
tempted to eliminate all organized opposition to Gay's can-
didacy by laying Session off on November II and by
concealing from him the fact, known to the Company, that
the election was to be held later that day. The Respondent
Company, in its brief, seeks to analogize its conduct with
that of an employer who encourages its employees to vote
in a Board-conducted union representation election. How-
ever, in my view, no similarity exists. In the case of a repre-
sentation election where employees are to choose between
a union or no union, the employer has a legitimate interest
in the entire election process and, indeed, within the frame-
TIhese findings concerning Burnett's and Trock's participation in the
election process are based on their own testimony as well as that of Session,
Westwiod, and Reynolds. Generally. Session, Westwood, and Reynolds im-
pressed me as honest and sincere witnesses who were attempting to relate
long past events as accurately and completely as possible. Trock and Bur-
nett. however, revealed a tendency to evade, conceal, or distort events at
times in order toi place their testimon) in the most favorable light possible
under the circumstances presented. For these reasons, where a conflict oc-
curred. I have credited the General (,ounsel's witnesses.
CHICAGO MAGNESIUM CASTINGS CO. 405
work of Board law governing employer conduct during
such a campaign, is free not only to encourage employees
to vote, but also to seek to persuade employees to vote
against the union. In the instant set of circumstances, how-
ever, Respondent Company had no legitimate interest in
the outcome of an internal local union election. The Board
has long held in many cases that an employer has no right
to interfere or to seek to control the selection of its employ-
ees' representatives who are to deal with the employer for
purposes of collective bargaining, and that to attempt to do
so violates the Act. Those are the cases apposite here. I find
that Respondent Company violated Section 8(a)(1) of the
Act as alleged in paragraph 7 of the complaint.
D. The Events Surrounding the Alleged Discriminator
Layoff of David Session on December 22, 1976
Following the Union's refusal to honor the results of the
November II shop chairman election, Session returned to
work on Monday, November 15, the day on which he filed
charge, Case 13-CA-15981 alleging that Respondent Com-
pany interfered with its employees' Section 7 rights by or-
ganizing and sponsoring the November 11 election. There-
after, Session actively pursued his responsibilities as shop
chairman by filing several additional grievances prior to
his layoff on December 22, including three in November,
two of which claimed that the contract had been violated
by Respondent Company's allowing journeymen employ-
ees to perform miscellaneous employees' work. On Decem-
ber 14 Calvin Trock transferred Session to Tellie Gay's job
in the core room. Gay, who had more actual seniority but
lacked the superseniority Session possessed by virtue of his
shop chairmanship, was laid off. Session had never per-
formed any of the various jobs his newly assigned responsi-
bilities required." Session was instructed to seek assistance
from Andrew Bracey concerning the manner in which the
various types of cores were to be made. At this time he was
not told that there were any production standards which he
would be required to meet." On December 15 Session com-
plained that the overhead crane he was required to use on
the coremaking job was dangerous because it did not have
a safety catch, but Trock simply brushed the matter aside
by saying that the job had been run that way for years and
that it was a risk Session must take. Session was laid off on
December 16 and 17. It was during this period that he filed
charge, Case 13-CA-16065. Ulpon his return to work he
also filed grievances over his layoff and what he contended
were hazardous conditions in the core room. On Monday,
December 20, 1976, Session returned to work, but any in-
structions or assistance he received that day came from
Bracey.' It was not until December 21 that Session learned
that he was required to meet production standards. That
day, just before lunch, Trock came to Session and stated
that he was not meeting the standard, and when Session
7Session testified that he had last worked in the core room In 1970. (al-
vin Trock testified that he did not recall Session having ever worked under
him during the 8 )ears he had heein core roiom supervisor.
s I credit Session's testimon, in this respect over tesiimon to the contrar
h Respondent ( ompans sitnesses
Session s testimon) in this respect is credited
inquired concerning what Trock meant, Trock answered
that there was a standard for each job set forth in a stan-
dard book which Bracey would show him. Trock did not
specify either what the standards were or b what margin
Session had failed to meet them. However, later that day
when Session asked Brace)' about the standard book he
was told, "They are over there some place .... Don't
worry about them because you can't make no standard no
way. We have been here a long time and some of them we
just can't make. You have to be here longer to make stan-
dard." For the remainder of the dav Session continued to
work on a variety of coremaking jobs which he had never
performed before, occasionally assisted only by Bracey. On
December 22, Trock laid Session off for failing to meet the
standard, and refused to permit Session to exercise his su-
perseniority on other jobs in the die cast department on the
ground that under the contract journeymen could not
bump miscellaneous employees. Session was told that Tel-
lie Gay would be recalled to work on January 3, 1977.
I find that Respondent Company violated Section
8(a)(1) and (3) of the Act by laying off David Session be-
cause of his union and concerted activities in that Session
diligently performed his responsibilities as shop chairman
by filing grievances and exercised his rights under the Act
by filing charges. The credible evidence clearly shows that
shortly following Session's filing of the wage rate griev-
ances which claimed that the Company was failing to
honor the newly negotiated collective-bargaining agree-
ment between Respondent Association and the Union, Re-
spondent Company encouraged Tellie Gay to attempt to
replace Session as shop chairman. Thereafter, on Novem-
ber I 1, the day on which those same wage rate grievances
were finally resolved, Burnett and Trock not only con-
cealed their knowledge of the forthcoming election from
the union officials and Session, but also busily engaged
themselves in efforts to insure maximum attendance by
other employees at the election which was conducted on
paid for working time. Shortly after the Union voided the
results of the November 11 election Session resumed his
shop chairmanship accompanied by a flurry of grievances
and an NLRB charge. Almost immediately thereafter Ses-
sion was transferred to work which he had never per-
formed before, and after only 4 days on that job with little
or no assistance was laid off for failure to meet unspecified
standards, which other core room employees had not been
required to meet, and with no explanation concerning by
what amount he had fallen short. Finally, Session's undis-
puted testimony shows, consistent with his version of
Bracey's remark about standards quoted above, that he
had never been disciplined while working in the molding
department for the times on which he failed to meet the
standards there. The Board has often held that the timing,
inconsistencies, and illogical and arbitrary aspects of the
events comprising a set of circumstances relating to alleged
discrimination may constitute strong indicators concerning
the motive behind the alleged discrimination. Applying
these considerations to the instant case I find that the
events, detailed above, leading to Session's final layoff con-
vincingly demonstrate that Respondent Company's true
motive was to eliminate from its employ a troublesome
union activist who insisted upon diligently enforcing the
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms of the newly consummated collective-bargaining
agreement. Thus, Respondent violated Section 8(a)(1) and
(3) of the Act in laying off David Session on December 22,
1976.'0
E. The Events Relating to the Respondent Compan,'v and
the Respondent Association's Refusal To Process Step 2
Grievances After March 28, 1977
David Session filed grievances with respect to his layoff,
which resulted in a formal grievance committee hearing on
February 9, 1977. In addition to Session, Ware, Bonifer,
and Truitt attended for the Union, and Larson, Horton,
Phelps, and Hodgson for the Association. In response to
the Company's position that Session had been released for
failure to meet production standards, Bonifer pointed out
that there were no negotiated standards in the
Association's contract except for a general statement that
employees were expected to do a fair day's work for a fair
day's pay. After further discussion, Session's grievance was
denied, and the meeting adjourned with Bonifer reminding
those present that the Union had obtained a strike sanction
which it could use to strike over the Session matter.
On March 24, 1977, another grievance committee hear-
ing was held concerning another grievance Session filed on
February 15, 1977, over the Company's failure to recall
him to work. Those persons who had attended the previous
grievance committee meeting also were present at this
meeting, with the addition of Tellie Gay, who on February
22. 1977, had been elected temporary shop chairman. At
the outset of the meeting the parties argued over whether
Session should be permitted to be present during the entire
agenda since he was no longer shop chairman. Then a
grievance filed by Marilyn Reynolds was considered and
resolved by agreeing to pay Reynolds 3 days' pay for work
she could have performed while temporarily laid off for
short periods. Session's grievance was then brought forth
for consideration by the committee. Truitt pointed out that
under the contract Session, as a journeyman, could operate
the shell core machine. The Union also insisted that Tellie
Gay was performing molding work 3 to 4 days a week.
After hearing the Union's presentation the members of the
Association caucused for about an hour after which the
Union was informed that a "serious internal problem" had
arisen and that the Association desired a continuance of
the Session matter. With the agreement of the Union, fur-
ther deliberation of Session's grievance was scheduled for a
meeting on April , 1977.
On March 31, 1977. Respondent Association accepted
Respondent Company's March 28, 1977, letter of resigna-
tion from Respondent Association. Also on March 31,
1977, Respondent Association notified the International
Union by telegram that it had approved Respondent
Company's withdrawal request effective March 31, 1977.
Truitt learned of Respondent Company's withdrawal
'I he correctness of this conclusion is reiniforced by the fact that li-
though Session has not been recalled to work, Plant Manager L.arson testi-
fied that since January 1977 there has been an average o)f 3 days' molding
work per week performed in the plant and that it has been performed bh
none oither than Tellie Gay.
shortly before the scheduled April I meeting, during a
phone conversation with Hodgson. Hodgson stated, in ad-
dition, that he had received a letter from Respondent Com-
pany stating that it would negotiate a separate grievance
procedure with the Union. Truitt vigorously objected on
the ground that the Union already had a contract which
bound Respondent Company, and had no need to negoti-
ate a separate one. Nevertheless, Hodgson, who referred to
Respondent Company as a "pain in the ass," insisted that
there was no longer any need for a meeting on April I since
Respondent Company was no longer a member and that
the Association would not participate in any further griev-
ance meetings involving Chicago Magnesium Castings
Company.
As soon as this conversation with Hodgson was complet-
ed, Truitt called Company President Burnett and received
confirmation of Chicago Magnesium Castings Company's
resignation from Respondent Association. In response to
Burnett's expressed desire to negotiate another grievance
procedure, Truitt adhered to his position that the Company
remained bound to the Association contract. At all times
since March 31, 1977, both Respondent Association and
Respondent Company have refused to conduct step 2
grievance meetings relating to matters at Chicago Magnesi-
um Castings Company under the terms of the Association's
contract with the Union. Further grievances have been
filed, but remain pending. Thus, in mid-May 1977 Hlodg-
son told Ware, Bonifer, and Truitt, of the Union, that Re-
spondent Association no longer represented Chicago Mag-
nesium and therefore would not conduct step 2 grievance
meetings for that Company. Subsequently, on September
22, 1977. Truitt and Ware were instructed by the Associa-
tion to stop sending grievances relating to Respondent
Company to the Association.
The General Counsel contends that Respondent Compa-
ny and Respondent Association unilaterally changed the
terms and conditions of employment be refusing to honor
the provisions of the Association's contract with the Union
insofar as it relates to the holding of step 2 grievance meet-
ings on grievances filed by employees at Respondent Com-
pany. Thus, the General Counsel urges that the Respon-
dents have violated Section 8(a)(5) of the Act. Respondent
Association argues that it has acted consistently with past
practice and that it has no authority to represent Respon-
dent Company after its withdrawal from the Association.
While denying any violation of the Act by its withdrawal
and refusal to honor the grievance procedure o the
Association's contract, Respondent Company has failed to
explicate its legal position either by oral argument or in its
brief. I am not persuaded by Respondent Association's ar-
gument with respect to past practice being the controlling
consideration here. It is clear that Respondent Company
continued to be a member of Respondent Association at
all times since it joined the Association in 1973. Respon-
dent Company remained a member of Respondent Associ-
ation throughout the collective-bargaining negotiations
and labor relations difficulties which resulted in the Asso-
ciation entering into the present collective-bargaining
agreement with the Union on or about June 9, 1976. The
current agreement has an expiration date of April 30, 1979.
Pursuant to this agreement, until March 31, 1976, when it
CHICAGO MAGNESIUM CASTINGS CO. 407
withdrew. Respondent Company and Respondent Associa-
tion have processed the grievances which have been filed
by Respondent Company's employees. The Board has long
held that absent unusual circumstances, once actual bar-
gaining negotiations have begun in a multiemployer unit,
the unit may not be discarded by either the employers or
the union. Retail Associates, Inc.. 120 NLRB 388 (1958). It
is also clear that a withdrawal from a multiemployer asso-
ciation does not affect that employer's obligation to honor
the provisions of a negotiated contract. No unusual cir-
cumstances have been shown here. What has clearly been
shown in the instant case is, simply, that because of a dis-
agreement between Respondents, characterized as a "seri-
ous internal problem," which obviously arose over the pro-
posed disposition of Session's grievances, Respondents,
each for reasons of their own, decided to abandon the pro-
visions of the newly negotiated collective-bargaining agree-
ment insofar as the)y apply to Respondent Company. In
doing so they each plainly refused to bargain in good faith
in violation of Section 8(a)(5) and (I) of the Act.
CON LSIONS OF LAW
I. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(2)., (6), and (7)
of the Act.
2. The Respondent Association is an employer engaged
in commerce within the meaning of Section 2(2). (6), and
(7) of the Act.
3. The Charging Party-Union is a labor organization
within the meaning of Section 2(5) of the Act.
4. Local No. 233 is a labor organization within the mean-
ing of Section 2(5) of the Act.
5. By maintaining an unlawful provision in its employee
handbook prohibiting union activities on company time,
and by interfering with and participating in its employees'
internal union affairs, Respondent Company violated Sec-
tion 8(a)(1) of the Act.
6. By laying off David Session on December 22. 1976,
and thereafter failing and refusing to reinstate him to his
job because of his union and protected concerted activities,
Respondent Company violated Section 8(a)( ) and (3) of
the Act.
7. By failing and refusing to comply with the terms and
conditions of the June 9. 1976, collective-bargaining agree-
ment executed by Respondent Association on behalf of
Respondent Company and other Association members, in-
cluding the provisions of that agreement with respect to the
processing of grievances, and by failing and refusing to
process grievances under the provisions of that agreement,
the Respondents violated Section 8(a)(1) and (5) of the
Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
9. Respondents have not violated the Act in any)' respects
other than those specifically found.
Tit RMF)DY
Having found that Respondents have engaged in certain
unfair labor practices. I find it necessary to order that Re-
spondents cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act. Accordingly, I shall order Respondent Company to
cease and desist from maintaining or enforcing the provi-
sion set forth on page 8. item II, 1. b. prohibiting union
activities on compan) time, and to delete that wording
from the handbook. I shall order Respondent Company to
cease and desist from interfering with or participating in its
employees' internal union elections or union activities.
Further, having discriminatorily laid off David Session. I
find it necessary to order that Respondent offer him full
reinstatement with backpay computed on a quarterly basis
as prescribed in F. W I Woolworth C(ompanv. 90 NLRB 289
(1950), and Florida Steel Corporation. 231 NLRB 651
(1977). l Finally, I shall order that Respondents honor the
terms and provisions of Respondent Association's collec-
tive-bargaining agreement with the Union as applied to
Respondent Company as a member, including the pro-
cessing of bargaining unit employees' grievances under the
contractual grievance procedure, until such time as Re-
spondent Company may lawfully withdraw from member-
ship in Respondent Association. I shall also order Respon-
dents to post appropriate notices with respect to the
violations they have been found to have committed.
Upon the foregoing findings of fact and conclusions of
law. and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '-
A. Respondent Chicago Magnesium Castings C(ompany.
Blue Island. Illinois. its officers. agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Maintaining or enforcing the provision in its employ-
ee handbook prohibiting union activities on company time.
(b) Interfering with or participating in its employees' in-
ternal union elections or union activities.
(c) Laying off or otherwise discriminating against em-
ployees with regard to the hire and tenure of their employ-
ment or an)y other term or condition of employment for
engaging in union activity or concerted activity for their
mutual aid or protection.
(d) Refusing to bargain collectively in good faith with
the Chicago and Vicinity Conference Board of the Interna-
tional Molders and Allied Workers Union, AFL CIO-
CLC, by unlawfully withdrawing from membership in the
Chicago Foundrymen's Association and by failing and re-
fusing to honor the terms and provisions of the Chicago
Foundrymen's Association's collective-bargaining agree-
ment with the Union as applied to Respondent Compan)
as a member, including the processing of employees' griev-
See. enerall. Irs Plltni & lelimt (. 138 NI.RB 16 1962 .
In Ihe eent no exceplo,n are filed as prtlided h Sec 102 46h f thte
Rules nd Rgulaions of the N.ational I.abor Rel.lals Board. the findings
cincluslons, sn re elllilcrldcd ()rder herein shall. as provided in Sec
110248 .f the Rule, nd Rccuiatlion. he .iadpied h the Blrd and become
its findings, concl usions, a.l.] ()rder, anid all oII hle lns thereto sh.all he
deenmed v:,.ia ed for all piurpo.sce
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ances under the contractual grievance procedure, until
such time as Respondent Company may lawfully withdraw
from membership in the Association.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Delete from its employee handbook the provision set
forth on page 8, section II, , b, prohibiting union activity
on company time.
(b) Offer David Session immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered as the result of his layoff on December 22, 1976, in
the manner set forth in "The Remedy."
(c) Upon request, bargain collectively in good faith as a
member of the Chicago Foundrymen's Association by
honoring the terms and provisions of that Association's
collective-bargaining agreement with the Chicago and Vi-
cinity Conference Board of the International Molders and
Allied Workers Union, AFL-CIO-CLC, as applied to Re-
spondent Company as a member, including processing em-
ployees' grievances under the contractual grievance proce-
dure, until such time as Respondent Company may
lawfully withdraw from membership in the Association.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(e) Post at its plant at Blue Island, Illinois, copies of the
attached notice marked "Appendix A." 13 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by Respondent Company's
authorized representative, shall be posted by Respondent
Company immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent Company to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent Company has taken to comply herewith.
B. The Respondent, The Chicago Foundrymen's Associ-
i In the event that this Order is enforced by a judgment of a United
States Court of Appeals. the words in the notice reading "Posted b Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the Utnited States Court of Appeals Enforcing an Order of the
National abor Relations Board."
ation, Westchester, Illinois, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
the Chicago and Vicinity Conference Board of the Interna-
tional Molders and Allied Workers Union, AFL-CIO-
CLC, by failing and refusing to honor the terms and provi-
sions of Respondent Association's collective-bargaining
agreement with the Union as applied to Respondent Com-
pany as a member, including the processing of employee
grievances under that agreement, with respect to bargain-
ing unit employees of Chicago Magnesium Castings Com-
pany, until such time as Respondent Company may lawful-
ly withdraw from membership in Respondent
Association. t4
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the above-named Union as the exclusive representative of
the employees in the appropriate unit described above, by
honoring all the terms and provisions of Respondent
Association's collective-bargaining agreement with the
Union as applied to Respondent Company as a member,
including the processing of grievances of bargaining unit
employees of Respondent Company as a member of the
Association, until such time as Respondent Company may
lawfully withdraw from membership in Respondent Asso-
clation.
(b) Post at its principal office and place of business at
Westchester, Illinois, copies of the attached notice marked
"Appendix B." 15 Copies of the notice, on forms provided
by the Regional Director for Region 13, after being signed
by Respondent Association's authorized representative,
shall be posted by Respondent Association immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices are customarily posted. Reason-
able steps shall be taken by Respondent Association to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
I1 IS FURTHER ORDERED that the complaint is dismissed in
all respects other than those specifically found.
T4 The appropriate collective-bargaining unit is:
All foundry production and maintenance employees of member com-
panies of the Association, excluding all office clerical employees, jani-
tors. watchmen, supervisors as defined in the National Labor Relations
Act, as amended, and employees employed in another collective-bar-
gaining unit represented by another duly authorized labor organization.
See fn. 13. upra