Dresser Industries Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1969

178 N.L.R.B. 317 (N.L.R.B. 1969)

DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV.
Dresser Industrial Valve & Instrument Division,
Dresser Industries Incorporated and Beulah M.
Gay. Case 9-CA-4917
August 29, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN AND ZAGORIA
On April 1, 1969, Trial Examiner Ivar H.
Peterson issued his Decision and on April 16, 1969,
an erratum thereto, in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision The Trial
Examiner further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in
connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
The Trial Examiner found, and we agree that this
is not an appropriate case in which to defer to the
grievance-arbitration procedures included in the
contractual agreement between the Union and the
Respondent.'
The Trial Examiner found that Respondent
transferred and subsequently discharged Mrs. Gay
in violation of Section 8(a)(3). The Respondent
excepts, contending that the record considered as a
whole does not support the Trial Examiner's
findings. We find merit in the Respondent's
exceptions.
As more fully set forth in the Trial Examiner's
Decision the incident which gave rise to this
proceeding took place on May 15, 1968' when Mrs.
Gay, the union steward in her department on the
'in so finding, however, we do not adopt the Trial Examiner's statement
that "the earlier cases such as Consolidated Aircraft. 47 NLRB 694, enfd
141 F 2d 785 (C A 9), have in effect been overruled Nor do we find it
necessary to adopt the Trial Examiner's remarks concerning waiver (fn 12
of Trial Examiner's Decision)" In addition, Member Zagoria does not
adopt the Trial Examiner's reliance on Unit Drop Forge Division. 171
NLRB No 73 He regards that case, which involved an alleged violation
of Sec 8(a)(5) as inapposite to the alleged 8(a)(3) violations involved
herein
317
day shift, motioned superintendent Steffen over to
her machine to present two written grievances about
which she had spoken to Steffen on the previous
day. Since Steffen did not want to accept the
grievances Mrs. Gay put them in his shirt pocket as
he was leaving. Shortly thereafter, (Mrs. Gay
testified about 5 minutes; Steffen testified half an
hour;)' Steffen returned and told Mrs. Gay she
would have to go on the night shift. Mrs. Gay
testified she told Steffen she could not work nights
and would bring in a doctor's certificate to that
effect. Steffen testified the only reason Mrs. Gay
gave for refusing to work on the night shift was a
transportation problem In any event, Mrs. Gay did
not go on the night shift, but worked on her regular
job as solderer for the remainder of the week.
On May 17, Mrs. Gay accompanied by Union
President White presented a doctor's statement4 to
Steffen along with a grievance against him; the
grievance among other things alleged that Steffen
had tried to bribe Mrs. Gays and had transferred
her because she had submitted the May 15,
grievances. On Friday, May 18, Steffen told Mrs.
Gay that she would go on the FX assembly line on
the day shift the following Monday. The FX job
paid 6 cents per hour less and required that she give
up her position as union steward in the soldering
department (the department to which she was being
transferred had a union steward).
On May 23, Mrs. Gay along with Arnold, an
international representative of the Union, met with
Steffen and works manager Buda. Buda asked her
why she had not bid on the jobs that had been
posted after her transfer; Mrs. Gay gave various
reasons for not bidding on those jobs and asked for
her old job back.
On June 7, Mrs. Gay obtained another statement
from her doctor, which indicated that due to
dislocated ribs (suffered in her February automobile
accident) she was unable to perform work which put
her in a straining position; she gave this statement
to Union President White. White testified he
thought that he had turned it over to the
Respondent.
On June 12, a meeting under the fourth step of
the grievance procedure was held to discuss Mrs.
Gay's grievance, particularly that part of it alleging
'Unless otherwise indicated all dates refer to the year 1968
it should be noted that the Trial Examiner credited all of the witnesses
He stated that " the various witnesses on the whole, aside from one
incident involving Mrs Gay, conducted themselves in a manner inspiring
confidence in their essential integrity." And he subsequently stated, " my
assessment of Mrs Gay and the several other witnesses who appeared
before me is that each of them sincerely attempted to tell the truth
`The doctor's statement read as follows
Beulah Gay has not completely recovered from injuries suffered in an
accident February 1968 In my opinion she is not physically able to
work at night.
Upon her return to work in April she had presented a doctor's statement
which said only that she would be "physically able to return to work April
1, 1968 "
'The Trial Examiner dismissed 8(a)(1) allegations based on this conduct
There is no exception
178 NLRB No. 51
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that her transfer resulted from the fact that she had
presented two grievances to Steffen. The meeting
was attended by Respondent's director of industrial
relations Hoekenga and Union International
representative Arnold. As in the earlier steps of the
grievance procedure, it was concluded that Mrs
Gay's transfer was in accordance with a prior
decision of management made prior to her notifying
management she intended to file two grievances.`
Mrs. Gay last worked on June 15, the following
work day she sent word by her daughter that she
would not be returning to work. Thereafter, she
received a letter dated June 17, from works manager
Buda which stated that since May 21 she had been
offered several positions on the first shift; the jobs
offered were enumerated in the letter. The letter
concluded
If you cannot perform any of the duties
associated with these positions, you may apply for
a leave of Absence ... .
If you refuse to accept any of the positions
offered and do not apply for a leave of absence,
you will be terminated
Mrs. Gay did not reply to this letter.
The Trial Examiner found that Steffen's transfer
of Mrs. Gay was "inseparably related to Mrs Gay's
insistent presentation of the two grievances" and
violative of Section 8(a)(3) and (1) of the Act
That the decision to transfer a day shift solderer
to nights was made several days prior to Mrs Gay's
transfer was established by Steffen's uncontradicted
testimony and corroborated by foreman Mullins and
group leader Barbara Alexander (group leader is a
nonsupervisory position) And quite significantly, on
May 15, prior to Steffen's informing Mrs. Gay of
her transfer to the night shift, Buda had asked
Steffen whether he had transferred a solderer to
nights pursuant to Buda's earlier instructions. Upon
Steffen's reply that he had not, Buda said, "All
right. I'm telling you now. Let's move â–º t today."
It having been established that a solderer was to
be transferred, the question remains as to whether
the Respondent discriminatorily chose Mrs Gay for
transfer According to the collective-bargaining
agreement such determinations are to be made on
the basis of seniority. The record establishes, and
the Trial Examiner in fact found, that Mrs. Gay
was the junior solderer on the day shift in the
soldering department. As such she was subject to
transfer unless she enjoyed "bumping rights" with
respect to classifications other than solderer within
the soldering department. The Trial Examiner found
that according to the literal provisions of the
contract, inasmuch as no layoff was involved, Mrs.
Gay did not enjoy bumping rights within her
department. Likewise the record reveals that Mrs.
Gay was told by both Steffen and Union president
White that she could not "bump" in these
'At the third step of the grievance procedure it had been concluded that
Mrs Gay had been transferred with due regard for the rules of seniority
circumstances. Nevertheless, the Trial Examiner,
relying on certain testimony of Hoekenga,
Respondent's director of industrial relations, found,
in effect, that Mrs. Gay should have been allowed
"bumping rights" with respect to other more junior
employees within different classifications in her
department; he noted that there were three such
junior employees However, the Trial Examiner
apparently neglected to consider a subsequent
colloquy between himself and Hoekenga' wherein
Hoekenga clarified his earlier testimony and made it
quite clear that in the instant situation Mrs Gay did
not enjoy bumping rights.
It thus appears not only that the decision to
transfer a solderer was made several days prior to
the alleged discriminatory transfer, but that Mrs.
Gay as junior solderer was subject to transfer and
not entitled to bump other employees in her
department. In these circumstances, we do not
believe that Respondent was obliged to alter the
existing seniority rules in Mrs. Gay's favor, and
thereby discriminate against other employees.
In our opinion the only factor (and the fact on
which the Trial Examiner apparently relied) which
tends to support to an 8(a)(3) finding is the timing
of Mrs Gay's transfer. And while we agree that the
circumstances of her transfer and particularly the
timing are suspect, more than suspicion is required
to find an 8(a)(3) violation.' Accordingly, we are
unable to find the transfer of Mrs. Gay violative of
Section 8(a)(3).
With respect to Mrs. Gay's termination the Trial
Examiner stated.
Since I have found that the transfer of Mrs.
Gay was tainted by discriminatory considerations,
and inasmuch as it fairly appears that the jobs
thereafter assigned her involved severe physical
discomfort for her, a fact known to Management,
I think it logically follows that her quitting her
job on June 15 must be viewed as a constructive
discharge induced by similar discriminatory
'Q (By Mr Murphy) With regards to these bumping rights and in
particular with regards to Mrs Gay , when she was notified of her transfer
to the night shift, is it your testimony that she could then displace someone
on the first shift`?
A No Normally, the junior person in the classification , if they need to
equalize the shift, would automatically go to second shift
TRIALEXAMINER Let me pose this so that I have it clearly in mind as
to what your testimony is Assuming that Mrs Gay at that time had
seniority over at least one solderer and the need was for the movement
of one solderer to the second shift, Mrs Gay would have stayed on the
first shift , is that correct`?
THE WITNESS Yes
TRIAL EXAMINER In other words , the most junior person in the
soldering classification would have gone to the second shift'?
THE WITNESS Yes
TRIALEXAMINER Assuming that she was the junior solderer on the
first shift but she held seniority over some people on the first shift in
that department who were performing other work but work which she
was qualified to perform , what would have happened?
THE WITNESS She would have gone on second shift
TRIAL EXAMINER She would have had no bumping rights'?
THE WITNESS Right
'See Technical Maintenance , Inc 172 NLRB No 60, G H Hicks and
Sons. Inc, 141 NLRB 1272
DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV.
motives on the part of' the Respondent. I so find,
and accordingly conclude that Mrs Gay's
termination of employment was violative of
Section 8(a)(3) and (1) of the Act.
The Trial Examiner's finding that Mrs. Gay was
constructively discharged is thus predicated on his
finding that her transfer was discriminatorily
motivated Because we do not agree that Mrs. Gay's
transfer was discriminatorily motivated, we are
unable to find that she was constructively discharged
in violation of 8(a)(3)
In conclusion, since we find neither the transfer of
Mrs. Gay nor her purportedly constructive discharge
violative of' the Act, we shall dismiss the complaint
in its entirety
ORDER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER BROWN, concurring
The underlying dispute in this case, namely,
alleged discriminatory conduct respecting union
steward Beulah Gay, was taken up under the
settlement procedures of' the parties' operative
agreement upon a grievance filed by Mrs. Gay. The
matter was finally resolved by responsible
representatives of' the contracting parties at the
fourth stage of the dispute procedures outlined in
their agreement, without having to go to arbitration.
So far as the record establishes, the Union
prosecuted the matter diligently and fairly, and the
record discloses no basis for impugning either the
manner or the reasonableness of the Union's
handling of the grievance.
Having invoked the contractual procedures and
lost, Mrs. Gay now seeks the same relief through
the charge filed by her in the present case. To
entertain this charge and the General Counsel's
consequent complaint undercuts in effect the agreed
upon procedures of the parties, and, in my opinion
upon consideration of all attending circumstances,
does not effectuate declared national policy in this
area '
I accordingly loin my colleagues in dismissing the
complaint, but do so without reaching the merits of
the dispute 10
'Steelworkers v Enterprise Wheel & Car Corp , 363 U S 593
"See my separate opinions in Thor Power Tool Co , 148 NLRB 1379,
1381-83, Cloverleaf Division of Adams Dairv Co , 147 NLRB 1410,
1420-25
TRIAL EXAMINER'S DECISION
STATFMI NT o1 THE CASE
IvAR H PETI RSON, Trial Examiner This case was tried
before me at Berea, Kentucky on February 6 and 7, 1969
It was initiated by a charge filed on October 15, 1968, and
a complaint issued on December 5, 1968, alleging that the
319
Respondent, Dresser Industrial Valve & Instrument
Division, Dresser Industries, Inc., had violated Section
8(a)(1) and (3) of the Act by the transfer and constructive
discharge of the Charging Party, Mrs Beulah M. Gay, on
or about May 15 and June 24, 1968, respectively ' At the
commencement of the hearing, the Respondent filed a
motion to dismiss the complaint on the ground, inter alga,
that the issues involved should have been allowed to be
handled by the grievance procedure provided in the
existing collective-bargaining agreement which the
Respondent had with Local 399, International Union,
Allied Industrial Workers of America, AFL-CIO, herein
called the Union This motion was denied, without
prejudice to the Respondent's right to renew it later At
the conclusion of the General Counsel's case, the
Respondent renewed the motion and, in addition, orally
moved that the balance of the allegations in the complaint
be dismissed for failure to make a prima facie case I
denied both motions. Subsequent to the hearing, the
General Counsel and the Respondent on March 20 filed
helpful briefs which have been carefully considered.
In its brief the Respondent renewed its motion to
dismiss. For the reasons hereinafter stated, the motion is
denied
Upon the entire record in this proceeding and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged at
its Berea, Kentucky, plant in the manufacture of industrial
valves This plant is the only one involved in this
proceeding. During the 12 months preceding issuance of
the complaint, a representative period, the Respondent
sold and shipped products valued in excess of $50,000
from its Berea plant directly to points outside the State of
Kentucky The Respondent admits and I find that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
It. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find, that Local 399, International Union , Allied
Industrial Workers of America , AFL-CIO , is a labor
organization within the meaning of Section 2(5) of the
Act
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Statement and Issues
At all times here material the Respondent and the
Union were parties to a collective-bargaining agreement
which, among other things, provided (section 5, article II)
that "There shall be no discrimination against employees
because of legitimate Union activity," and, in Section 1 of
Article V provided
[s]hould any dispute or difference arise between the
employees and the Company as to the meaning,
application or operation of any of the provisions of this
Agreement, such dispute or difference shall within
fourteen (14) working days following the alleged
'Unless otherwise indicated all dates refer to the year 1968
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident or dispute be submitted to the grievance
procedure. This procedure, consisting of four steps,
further provided that any unresolved grievance, after
having progressed through the fourth step, could be
submitted by either party to final and binding arbitration.
The Charging Party, Mrs. Gay, had been employed for
about 2 years and at the time in question was a union
steward in the soldering department. On May 15, Mrs.
Gay submitted to Darrell Steffen, the plant
superintendent, two written grievances involving two
employees, Sarah Parker and Lorene McClure. Within a
matter of about 5 minutes after submitting the grievances
Mrs. Gay was notified by Superintendent Steffen that she
was being transferred from the day shift to the night shift.
She protested this action, for reasons which will appear,
and, on May 17, filed with Steffen a detailed grievance on
her own behalf complaining about a variety of things
including an alleged attempt by Steffen to bribe her in
connection with her union duties. Mrs. Gay was
transferred to other work on the day shift and thereafter,
on June 15, she quit her employment for the stated reason
that, due to serious physical injuries she had sustained in
February as a result of an automobile accident, she could
not perform the duties to which she had been assigned.
Mrs. Gay's grievance progressed through the grievance
procedure, culminating in a decision on June 12 by the
Director of Industrial Relations, Thomas Hoekenga and
J. B. Arnold, International representative of the Union.
The matter involved in Mrs. Gay's grievance concerned
her transfer as well as the other allegations of misconduct
on the part of Superintendent Steffen. Hoekenga and
Arnold concurred in a finding that there was no
discrimination against Mrs. Gay and that her transfer had
been ordered in accordance with a decision made by
Works Manager Buda prior to May 15 for reasons wholly
concerned with the proper management of the plant.
Although Mrs. Gay urged the Union to pursue the
grievance further by taking it to arbitration, the Union
determined not to do so.
The issues thus presented are twofold: (a) the factual
one, whether Mrs. Gay's transfer and subsequent
termination of employment were discriminatorily
motivated; and (b) the legal question whether under the
Board's decisions in this area I should defer to the
grievance-arbitration machinery provided by the
collective-bargaining agreement and, in consequence
thereof, refuse to pass upon whether or not Mrs. Gay's
transfer was discriminatorily motivated. Counsel for the
Respondent very ably argues that, in harmony with the
underlying policy of the Act and the applicable Board and
Court decisions I should defer to the private machinery
provided for the settlement of industrial disputes. On the
other hand, counsel for the General Counsel urges that the
principles established by the Board for deferring to the
grievance-arbitration machinery are inapplicable in the
present circumstances particularly because what is here
involved is the exercise of a statutory right by the
Charging Party which, absent a clear and unmistakable
waiver, must be vindicated in an unfair labor practice
proceeding. For the reasons hereafter stated, I am
persuaded that this is not an appropriate instance for
deferring to the machinery provided by the private parties
for the settlement of differences or disputes.
B. The Applicable Deferral Principles
It is, of course, clear that the Board's jurisdiction over
unfair labor practices is exclusive. Section 10(a) of the Act
provides that the Board's power to prevent any person
from engaging in unfair labor practices "shall not be
affected by any other means of adjustment or prevention
that had been . . . established by agreement, law, or
otherwise." However, consistent with the Congressional
policy to encourage utilization of agreements to arbitrate
grievance disputes,' the Board, in the exercise of its
discretion, will under appropriate circumstances withhold
its processes in deference to an arbitration procedure. As
early as 1943,' the Board had occasion to consider
whether it should defer to the grievance-arbitration
procedure provided by the parties' collective-bargaining
agreement. In that case, the Board concluded that it
would not pass upon certain allegations of violations of
Section 8(5) of the Wagner Act by reason of unilateral
acts and Section 8(3) by reason of the discharge of certain
employees, stating.
We are of the opinion, however, that it will not
effectuate the statutory policy of "encouraging the
practice and procedure of collective bargaining" for the
Board to assume the role of policing collective contracts
between employers and labor organizations by
attempting to decide whether disputes as to the meaning
and administration of such contracts constitute unfair
labor practices under the Act. On the contrary, we
believe that parties to collective contracts would thereby
be encouraged to abandon their efforts to dispose of
disputes under the contracts through collective
bargaining or through the settlement procedures
mutually agreed upon by them, and to remit the
interpretation and administration of their contracts to
the Board. We therefore do not deem it wise to exercise
our jurisdiction in such a case, where the parties have
not exhausted their rights and remedies under the
contract as to which the dispute has arisen.
It should be noted that in the cited case, as here, the
arbitration procedure had not been utilized.
In Speilberg,' the Board, faced with a contention that a
complaint should not have been issued and no findings of
unfair labor practices should be made in the face of an
arbitration award dismissing the matter involved in the
unfair labor practice charge, stated that where "the
[arbitration] proceedings appear to have been fair and
regular, all parties had agreed to be bound, and the
decision of the arbitration panel is not clearly repugnant
to the purposes and policies of the Act," the Board
believed "that the desirable objective of encouraging the
voluntary settlement of labor disputes will best be served
by our recognition of the arbitrators' award" and,
accordingly, dismissed the complaint in its entirety.
The problem here, as I conceive it, is when and under
what circumstances it is appropriate to defer to the
grievance, arbitration procedure that has been provided by
the parties for the settlement of disputes, whether or not
the dispute involves matters clearly within the scope of the
rights guaranteed employees by Section 7 of the Act. As I
read the cases, the invocation of the deferral principle is
not controlled by whether or not the private machinery
has been invoked, although the Board's more recent
expressions appear to confine the principle to instances
where arbitration has in fact been used. Thus, in.
For example, Textile Workers Union v Lincoln Mills , 353 U.S. 448,
United Steelworkers v. Warrior & Gulf Navigation Co. 363 U S 574,
578-581.
'Consolidated Aircraft Corporation , 47 NLRB 694, 706, enfd. 141 F 2d
785 (C.A. 9).
'Speilberg Manufacturing Company, 112 NLRB 1080, 1082.
DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV.
Consolidated Aircraft, supra, it is clear that the parties
had not processed the matters on which the Board
deferred exercising its jurisdiction through any step of the
grievance-arbitration provisions'
As recently as 1965 the Board, in American Oil
Company," adopted without comment a Trial Examiner's
Decision dismissing the complaint in its entirety on the
ground that there existed grievance-settlement machinery
as provided in the contract of the parties. In that case, a
panel majority, with Chairman McCulloch concurring,
apparently adopted the Trial Examiner's ultimate
recommendation that the complaint be dismissed, which
was bottomed upon the Board's language in Crown
Zellerback (95 NLRB 753), where the Board stated that it
was reluctant to issue any remedial order in a situation
where "the parties have failed to utilize the contractual
procedures established for bargaining concerning the
interpretation and administration of their contract "'
Here the parties have established a detailed grievance
procedure which was utilized to consider the problems
raised by Mrs Gay as well as her transfer from the
soldering department to the FX assembly line This
procedure, had it been pursued beyond the fourth step
where it ended, would have resulted in final and binding
arbitration I note that in Article Ill of the contract,
dealing with management rights, the parties have agreed
that the right to hire, discharge for proper cause,
"promote or transfer employees from one class of work to
another," and to determine and change production
methods, departments, facilities, equipment and schedules
and the work to be performed "is vested exclusively in the
Company, but shall not he inconsistent with the Terms of
this Agreement " It seems evident, therefore, that the
several grievances raised by Mrs Gay, as well as her
transfer, were cognizable not only under the grievance but
also the arbitration provisions of their collective
agreement
Mrs Gay's grievance covered a variety of accusations
The first item, however, was fairly specific in that it
alleged that Steffen notified her 5 minutes after she gave
him the Parker and McClure grievances that she would
have to go on the night shift In processing the grievance
management noted, at the second step, that the "decision
to transfer a day shift soldering department employee to
the second shift was made to balance the work force and
was originated by the Works Manager several days before
this complaint." Further, the decision at this step noted
that Mrs Gay was transferred with due regard for the
rule of seniority since she was the least senior employee in
the soldering department However, it further noted that
since the transfer imposed a hardship upon Mrs Gay, by
reason of her physical condition, she was offered a job on
the first shift At the third step Works Accountant
Sculley, on May 30, 1968, concluded, as is indicated in
the grievance file, that Works Manager Buda had ordered
'In McDonnell Aircraft Corporation, 109 NLRB 930, 934-935, the
Union specifically refused to take the matter to arbitration In The Borden
Company , 110 NLRB 802 - 805, and Crown Zellerback Corporation, 95
NLRB 753, although no step of the grievance-arbitration machinery had
been utilized the Board nonetheless expressed the view that it would
effectuate the policies of the Act to defer thereto
'152 NLRB 492
'I am aware , however, that in several cases decided shortly before
American Oil members of the Board expressed some divergence of thought
concerning the application of the deferral principle See Cloverleaf
Division of Adams Dairy Co , 147 NLRB 1410, Dubo Manufacturing
Corporation , 142 NLRB 431, Thor Power Tool Company , 148 NLRB
1379 See also Producers Grain Corporation , 169 NLRB No 68
321
Superintendent Steffen to make this transfer "several days
before this complaint " In passing, however, I note that
Sculley did not negate the clear implication in Mrs Gay's
grievance that the transfer was occasioned by her
presentation of two grievances At the fourth step, which
occurred on June 12 at a meeting between the director of
industrial relations, Hoekenga, and International
Representative Arnold, the answer given by them was that
the transfer was in accordance with a prior decision of
management and, respecting the "other allegations set
forth," the answer was that they "will be investigated and
the appropriate action taken "
Hoekenga testified that a substantial part of the
meeting on June 12 was devoted to a consideration of
Mrs Gay's grievance. He and Arnold, as well as the
bargaining committee of the Union, were assured that
Buda had made a previous decision to effect a transfer of
a soldering department employee from the first to the
second shift, that this had been made "many days prior"
to May 15 when Mrs Gay was notified, but that Steffen
"had been lax in carrying it out." With respect to the
various allegations of discrimination and bribery, the
parties on June 12 concluded that these would be
investigated to ascertain whether any cause therefor
existed Hoekenga testified credibly and without
contradiction that these were discussed with
Superintendent Steffen and, "after thorough
investigation," it was decided that no grounds for these
allegations existed This decision was communicated to
Arnold and to Union President White' Mrs Gay was not
interviewed by Hoekenga and Arnold, so far as the record
indicates; however, it does appear that Works Manager
Buda conferred with her regarding the allegations she
made against Steffen I credit Mrs Gay's testimony that
she urged President White of the Union to pursue the
grievance further but that he declined to do so
In Cloverleaf Division of Adams Dairy (147 NLRB
1410, at 1415-16), the Board considered whether it was
appropriate to defer to the arbitration process. The Board
there concluded that none of the conditions that in the
past had impelled the Board to defer was present,
observing
In the instant case, it does not appear that there is
already in existence an arbitration award passing on
matters that bear on the ultimate issue we must decide,
and to which we are asked to give weight or effect
Indeed, it affirmatively appears that neither party has
even so much as sought to invoke arbitration. Nor is
this a case involving an alleged unfair labor practice,
the existence of which turns primarily on an
interpretation of specific contractual provisions,
unquestionably encompassed by the contract's
arbitration provisions, and coming to us in a context
that makes it reasonably probable that arbitration
settlement of the contract dispute would also put at rest
the unfair labor practice controversy in a manner
sufficient to effectuate the policies of the Act. On the
contrary, it is highly conjectural that arbitration in this
case, even if resorted to by the Union, could have
effectively disposed of the basic issue in this case -
whether Respondent acted lawfully in engaging in the
unilateral actions to which the instant complaint is
addressed Under all the circumstances, therefore, we
are unable to agree with the conclusion of the Trial
Examiner that even though Respondent's unilateral
'Works Manager Buda did not testify, it clearly appearing that he is in
extremely poor health and as a result could not be called as a witness
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action provides a statutory basis for doing so, the Board
ought not in this case exercise its power to remedy
Respondent's unfair labor practice. Rather, we believe
that for us to dismiss this complaint on the ground he
states would be an unwarranted abuse of our statutory
responsibilities.
More recently in the Unit Drop Forge case,' which
involved unilateral action with respect to changing
methods of operation and compensation, the Board
majority declined to defer to the contractual
grievance-arbitration procedure. It said.
Contrary to our dissenting colleagues, who concedes
that the availability of grievance-arbitration procedures
does not preclude the Board from exercising its
undoubted authority to assert jurisdiction over the
unfair labor practices herein, we find ample reason for
doing so in the instant proceeding. The Board is the
forum chosen to decide the issue of, and to remedy, the
asserted violation of employees' statutory rights. The
controversy is not one that is beyond our competence to
resolve, and as long as it is unresolved it may have a
continuing impact on the bargaining relationship. The
Board's remedial authority is likewise clear and
adequate. The parties have litigated the matter fully,
and it is over a year since the events giving rise to the
dispute occurred. We are unwilling, therefore, to
withhold our determination in these circumstances and
to send the parties away empty-handed to seek their
resolution elsewhere. As the Court of Appeals for the
Eighth Circuit stated in its Huttig opinion, it is
desirable "to avoid delay either in the courts or in the
arbitration process; to emphasize and protect in cases
of doubt, and to give priority to, statutorily declared
rights; to regard as no more than secondary any
contract interpretation aspect of what is regarded as
basically an unfair labor practice dispute . .; to take a
broad, and not a narrow or technical, approach to the
Act .; and not to close the door upon Board
expertise when such restraint is clearly not violative of
congressional mandate."
The principle which appears to emerge from these more
recent cases, is that, in general, the Board will decline to
make a finding of an unfair labor practice violation and
will defer to arbitration where the parties have already
obtained an arbitrator's decision, or are in the process of
obtaining such a decision, and where it is "reasonably
probable that an arbitrated settlement of the contract
dispute would also put at rest the unfair labor practice
controversy in a manner sufficient to effectuate the
policies of the Act."'° It seems apparent, although the
Board has not expressly done so, that the earlier cases
such as Consolidated Aircraft have in effect been
overruled or at the least confined to their particular facts''
'Unit Drop Forge Division , 171 NLRB No 73.
"Adams Dairy, supra, at p. 1416.
"The penetrating observation of Justice Douglas, dissenting in N.L.R B
v Strong, 393 U S 337, may have some pertinency here, especially when
we consider the Board 's disinclination to defer to the grievance , in contrast
to arbitration, procedures established by collective bargaining in
conjunction with the agency's increased case load and consequent alleged
decisional delay "The jurisdiction of any agency or branch of government
has a built- in impetus for growth and expansion Seldom does a
department restrict its powers narrowly and assume a self -denying attitude
The tendency is to construe express powers broadly. The organism grows
by subtle and little-noticed extensions of authority To students of
government this phenomenon is as predictable as the operation of other
so-called 'laws "'
In harmony with the Board's principles, and controlling
court decisions, as I understand them, I conclude that this
is not an appropriate case in which to defer to the
grievance-arbitration procedures contained in the
contractual arrangement between the parties.12
C. The Transfer and Termination of Mrs. Gay
1. The transfer
Beulah M. Gay went to work for the Respondent in
September 1966 and continued until she quit on June 15,
1968. She worked on a number of jobs but from about the
first of January 1967 she was a solderer on the first shift
in the soldering department. In November 1967 she
underwent major surgery and was off approximately 2
months on that account. Early in February 1968, after she
had returned to work for about 4 weeks, she was seriously
injured in an automobile accident which required that she
be hospitalized for about 2 months. She returned to work
early in April."
Shortly after she returned in April Mrs. Gay was
elected union steward by the other employees in her
department. As steward, it was her duty to attempt to
adjust grievances and, failing that, to assist employees in
preparing written grievances. Thereafter her responsibility
in the grievance procedure came to an end. On April 19,
Mrs. Gay prepared a written grievance involving an
employee named Hazel Gadd. This grievance asserted that
Foreman Herbert Mullins, of the soldering department,
had given Mrs. Gadd a written warning for leaving the
"Perhaps it would be unnecessary in this case to reach a consideration of
the deferral principle in view of the fact that the parties ' contract appears
not to contain a clear and unmistakable waiver of assertion of statutory
rights guaranteed by Section 7 of the Act. However , in view of the vigor
and earnestness with which the Respondent has argued the deferral
principle, it has appeared to me advisable to deal with it rather than to
dispose of this aspect of the case on the narrow ground of lack of clear and
unmistakable waiver. But the management rights provision, quoted above,
cannot be regarded as an express waiver of the right to pursue statutory
remedies rather than the grievance machinery. Moreover , it is clear,
perhaps contrary to earlier Board decisions previously cited , that the "mere
existence" of a grievance machinery terminating in arbitration is not to be
construed as a waiver of the Union' s statutory right to invoke the Act. It is
settled law that a waiver of statutory rights will not be inferred , but must
be clear and unmistakable . See e.g ., N L.R B v. Perkins Machine Co., 326
F.2d 488 (C A. 1); Timken Roller Bearing Co v. N.L R B.. 325 F 2d 746,
751 (C.A 6), cert denied 376 U S. 97I; N.L, R B v. Item Co . 220 F 2d
956, 958-959 (C A 5), cert. denied 350 U.S. 836, N L R B. v . Yarmen &
Erbe Mfg Co, 187 F.2d 947, 949 (C A. 2); and Fafner Bearing Co v.
N.L R B., 362 F.2d 716, 722 (C.A. 2)
See N L.R B v . Acme Industrial Co.. 385 U.S. 432, where the Supreme
Court dealt with this problem . There the Court , reversing the judgment
below, pointed out that the Steelworkers Trilogy, upon which the court
below relied , "dealt with the relationship of courts to arbitrators when an
arbitration award is under review or when the employer 's agreement to
arbitrate is in question ," a situation in which the "arbitrator's greater
institutional competency , which was so vital to those decisions , must be
evaluated in that context ." On the other hand , the "relationship of the
Board to the arbitration process is of a quite different order." The Court
further noted that the Board 's action in asserting jurisdiction did not
constitute an intrusion "upon the preserve of the arbitrator" but "was in
aid of the arbitral process," since "if all claims [had] to be processed
through to arbitration " then the system would be woefully overburdened- a
condition which was precisely what the Respondent ' s restricted view would
require as it would "force the Union to take a grievance all the way
through to arbitration without providing the opportunity to evaluate the
merits of the claims."
"Her doctor ' s statement said that she would be "physically able to
return to work April 1, 1968 " The statement contained no restrictions, as
the Respondent points out in its brief.
DRESSER INDUSTRIAL VALVE &INSTRUMENT DIV
plant without notice The answer, given by Plant
Superintendent Steffen, stated that Mrs Gadd had not
been given a written warning but only a verbal reprimand
and that if her attendance remained good the verbal
warning would not operate to her prejudice. On May 15,
Mrs Gay wrote out two additional grievances involving
Foreman Mullins, one concerning Sarah Parker and the
other Lorene McClure Both grievances involved the
assignment of overtime on Saturday, May 4, and both
were eventually processed through the fourth step of the
grievance procedure
Mrs Gay testified that before filing these grievances
she discussed them with Foreman Mullins and also with
Superintendent Steffen and Alvin White, president of the
Union It is her testimony that during the 10-day interval
before she filed grievances she went over the substance of
them with Foreman Mullins, claiming that Mrs. Parker
and Mrs McClure should have worked the overtime on
Saturday, May 4, rather than two other employees.
According to Mrs. Gay she told Mullins that the girls
"had a hard feeling" because of the fact that "two of the
other girls who didn't have the seniority" worked the
Saturday overtime. She testified that Foreman Mullins
admitted that he was in the wrong and stated that he
would give Parker and McClure the next overtime. Mrs
Gay also testified that she told Steffen about the
grievances and that he told her that "seniority didn't
count " However, subsequently Steffen "admitted that he
was in the wrong," and stated that Parker and McClure
would be given the next overtime However, they did not
get it. According to Mrs Gay, the employees were not
satisfied with Steffen's promise since they felt that they
should be compensated for the overtime that rightfully
should have been worked by them Steffen, in the
conversation with Mrs. Gay, told her that by the end of
the year the overtime in the soldering department would
be equalized and all employees would have had a fair and
equitable distribution of overtime
Mrs Gay testified that on May 14 she informed
Steffen, who was near her machine, that she was going to
have to write up the grievances involving Parker and
McClure According to her, Steffen "then bent over my
right shoulder and put his head almost against my head
and he says, `Now, Beulah, forget about the grievances
and forget about the Union."' Mrs. Gay replied that she
could not do that but he continued to press her to forget
about the grievances and forget about the Union, adding
if she would do as he suggested "you and I will get along
fine " Mrs Gay remained adamant and the next day filed
the written grievances It is her testimony that on May 15
she motioned to Steffen and he came over to her machine
She then told him that she had the grievances but he said
that he would not accept them Thereupon she "stuck
them in his shirt pocket" and told him that he would have
to accept them Five minutes after having given Steffen
the grievances he returned to her machine and the
following then transpired.
Q. Did you have any further conversations that day
with Mr Steffen"
A Five minutes later he came back and he says,
"Beulah, you'll have to go on night shift "
TRIAL EXAMINER. What time of the day was
that?
THE WITNESS: That was before noon.
TRIAL EXAMINER: Go ahead.
THE WITNESS. He said, "You'll have to go on
night shift You'll have your bumping rights and [in]
your classification "
323
I said, "I can't go on night shift. I'll bring in a doctor's
statement "
He said, "You'll have to go on night shift."
So I said, "Well, I'll take it to the Union President and
to the Company," and I got up and left. I went to the
Union President.
Q Did he say when you were to report on night
shift')
A He didn't say and he didn't say what my duties
would be.
On or about May 16 Mrs. Gay called on her doctor,
Dr S G. Marcum, who gave her a handwritten statement
reading as follows:
May 16, 1968
Beulah Gay has not completely recovered from
injuries suffered in an accident Feb., 1968.
In my opinion she is not physically able to work at
night.
(Signed) S G. Marcum
On the morning of May 17 she brought this statement to
work and conferred with Union President White
concerning it. The two of them then went to see Steffen,
and the following ensued
Q What transpired at this meeting? This meeting
with you, Mr. White and Mr. Steffen"
A I gave him the doctor's statement and laid it on
the desk and he refused it He said he wasn't going to
have it
I said, "You can take it or leave it "
He said, "Why didn't you bring it in sooner9"
I said, "Mr. Steffen, why didn't you tell me sooner I
was going to have to change shifts "
He got angry . I forgot the exact words he said
and I said, "Here's some grievances that I have written
out against you "
At the meeting on May 17 Mrs. Gay apprised Steffen
verbally of a series of grievances she had prepared
concerning him. The following then transpired.
A He glanced down at the grievances and kind of
thumbed through them and he turned all colors and
jumped up and, real loud, said "I am not going to stay
here and take accusations
TRIAL BCAMINER : Was Mr. White there?
THE WITNESS: Mr White was there all the time. He
was just sitting there.
Q (By Mr Murphy) Go on?
A. He said, "I'm going to have witnesses to this."
I said, "All right. Bring in the whole shop and I'll
tell them exactly how it happened."
Steffen stated that he wanted a witness and thereupon
brought in an office employee. After Mrs. Gay had recited
her complaints against Steffen, the latter told White that
he would give him (White) 10 minutes to "try and talk
some sense in her head." White asked Mrs. Gay what she
wanted and she replied that she wanted to operate the
soldering machine that she had previously operated,
claiming that it had been working that morning. After the
conference in Steffen's office had gone on for some time,
Works Manager Buda entered, claiming that he had
received a telephone call at his home to the effect that
some female employee was shouting at the superintendent.
Mrs. Gay apologized for inconveniencing Buda and
asserted that both she and Steffen had raised their voices.
Mrs. Gay continued working at her regular job the
balance of the week. During the afternoon of May 17
Mrs. Gay asked Steffen "about her bumping rights"
during which Steffen in effect stated that seniority did not
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
count. According to Mrs. Gay there were several
employees in the soldering department who had less
seniority than she, mentioning specifically Kathy Morgan,
Gladys Cates and Jesse Smith. During the course of the
discussion with Steffen, when she mentioned that her
rights were protected by the contract, Steffen replied that
"the contract didn't mean anything to him."
On Friday, May 18, Steffen told Mrs. Gay that she
would go on the FX assembly line on Monday, May 20,
on the first shift. This job paid 6 cents less per hour and,
in addition, required Mrs. Gay to give up her position as
steward in the soldering department. Mrs. Gay testified
she did not report to work on Monday as she was
involved in taking a variety of shots at the, doctor's office .14
On Tuesday, May 21, she came to work and started
operating a machine called a seamer. She complained to
White, president of the Union, to the effect that she did
not think the Company had a right to take her out of the
soldering department and thereby deprive her of her
position as union steward. Mrs. Gay described the FX
assembly job as involving considerable bending, twisting
and sitting in a cramped position The latter, in particular,
caused her to have difficulty breathing. She told the group
leader, Ruby Thacker, of her discomfort and stated that
she could not do the job. According to Mrs. Gay, Thacker
replied, "They knew that when they sent you back here."
On June 7 Mrs. Gay went to her doctor and he gave
her a note referring to the fact that one of her injuries was
a dislocated rib which prevented her from performing
work that involved placing herself in a strained position.
The doctor added that because of the pain she was
experiencing she would have to be considered "disabled
for such work for the present." Mrs. Gay gave this
statement to Union President White and asked him to
deliver it to Steffen.
On May 21 Mrs. Gay complained to President White
about her job assignment and on May 23 Mr. Arnold, the
international representative of the Union, came and she,
Arnold and the bargaining committee met with Works
Manager Buda and Superintendent Steffen on that day.
During this conference Buda referred to certain jobs that
bad been posted following her transfer from the soldering
department. Mrs. Gay testified that she gave various
reasons why she could not successfully perform these fobs,
principally because of her injuries. She asked for her old
machine back several times and expressed a willingness to
do anything else when it was not running. She was told
that before she was taken off the machine a decision had
been made to discontinue it. She then stated in substance
that if she had been told of her transfer 5 minutes before,
rather than 5 minutes after she had presented the Parker
and McClure grievances "I would not have [had] any hard
feelings." Nothing definite was decided at this conference
regarding future assignments for Mrs. Gay. A few days
thereafter Steffen came to her work station and showed
her some yellow sheets of paper which he described as
containing his answers to her grievances filed with him on
May 17. Mrs Gay turned the answers over to White.
2. Mrs. Gay's termination
Mrs. Gay's last day of work was June 15." Thereafter
she received a letter, dated June 17, from Works Manager
Buda which listed several jobs he claimed had been
available prior to her quitting and which were still
available. Mrs. Gay testified that the first job, an
"However, the parties stipulated she worked on Monday , May 20.
assembler in the FX department, was the job she "was
offered that I couldn't do." The other position, assembler,
ring and glass, she testified was usually a man's job since
it involved lifting, twisting, turning and bending. She
described it as "a real hard job to do." The third job,
assembler, apply Bardahl to movements, was a temporary
position on the first shift. According to Mrs. Gay,
management did not explain the job to her but in any case
she was not interested in a temporary job. According to
Mrs. Gay the last day she worked was June 15, Saturday,
and the following work day sent word by her daughter
Linda that she would not be coming back. She related
that prior to her quitting she had several times told the
group leader, Ruby Thacker, that she "would just have to
quit if I had to keep that job. I just couldn't do it. I told
her several times."
3. Analysis and conclusions
The General Counsel's theory is that Superintendent
Steffen, piqued over Mrs. Gay's handing him the Parker
and McClure grievances, which he felt were
unmeritorious, decided and announced to her that she
would be transferred to the second shift. The Respondent,
on the other hand, asserts that there was need to equalize
the number of solderers as between the first and second
shift and that Mrs. Gay, being the junior in that
classification, was told that she would be transferred to
the night shift. The Respondent further contends that the
decision to equalize the number of solderers on the two
shifts had been made well in advance of May 14 when
Mrs. Gay spoke about the grievances with Superintendent
Steffen, but that the latter had been lax in implementing
Mr. Buda's decision and acted on May 15 in response to
Buda's admonishment that he, Steffen, proceed to effect
the change that had been decided upon. The General
Counsel further argues that having been discriminatorily
transferred, Mrs. Gay was assigned jobs which the
Respondent knew she could not physically perform
because of her injuries; also, General Counsel urges that
she was offered jobs that either did not exist or which she
could not perform and that the Respondent well knew that
she could not, by reason of transportation problems and
her injuries, work on the second shift. Therefore, the
theory goes, the Respondent in substance and in fact
constructively discharged her because of her pressing her
own and other grievances.
At the outset in this attempt to discover where the basic
truths lie, it seems appropriate to remark that this case
was tried with dispatch on both sides and the various
witnesses on the whole, aside from one incident involving
Mrs. Gay, conducted themselves in a manner inspiring
confidence in their essential integrity. To be sure, as is
inevitable in adversary proceedings, differences emerge,
sometimes more in the nature of nuances or perhaps
mannerisms than in real content. This is not to say that
decision has been made easier. The litmus paper of verity
has yet to be perfected.
Mrs. Gay impressed me as a person who, still suffering
from major surgery and a subsequent serious automobile
accident, all experienced in the 6 months before she
appeared before me as a witness, would not knowingly
prevaricate. Her ability to recount the details of what
occurred in the shop more than 6 months before she
testified seemed to me initially an exercise in memory; but
"The parties stipulated that Mrs. Gay was absent on May 27, 29, 30,
and June I.
DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV.
as the hearing went on I became convinced that Mrs. Gay
had excellent recall.16 Contrary to the suggestion of
counsel, I do not believe that should not be credited or
that she harbored a feeling of resentment against
Superintendent Steffen or anyone in the Respondent's
hierarchy. In short, my assessment of Mrs. Gay and the
several other witnesses who appeared before me is that
each of them sincerely attempted to tell the truth.
We start, then, with the circumstances attending Mrs.
Gay's transfer from the soldering department. The
evidence establishes that she was the junior solderer in
that department and that the contractual arrangement
limited the exercise of seniority rights to job classifications
and was not department-wide." The record is further clear
that seniority did not operate by shifts, with the result that
employees in a particular classification were considered as
a single group regardless of which shift they worked on.
Much of the Respondent's case, doubtless not by
arrangement, appeared self-serving. The failure to call
Works Manager Buda was satisfactorily explained by
counsel on the basis of serious illness. On the other hand,
International Representative Arnold - who to my
knowledge and observation was in attendance at the
hearing-was not called as a witness. This surprised me,
particularly since he and the Respondent's director of
industrial relations, Hoekenga, together passed on Mrs.
Gay's grievance against Steffen and the two grievances she
filed on behalf of Mrs. Parker and Mrs. McClure.
Although Union President White appeared as a witness at
the Respondent's request, he was not examined in any
detail regarding what transpired during the day-long
meeting between management and the union bargaining
committee and Arnold, nor were any of the other
members of the bargaining committee called to relate
their version of this important occurrence. While Mrs.
Gay's detailed grievance against Steffen is rather loosely
worded, it nonetheless goes into considerable detail about
past events and would appear to call for something more
than an interview with Steffen in order to warrant being
considered as having been given a complete investigation.
However, so far as appears Hoekenga did nothing more
than talk with Steffen and obtain his version of the
matters contained in Mrs. Gay's grievance. It does not
appear that Hoekenga interviewed Mrs. Gay or, for that
matter, any other employee in the plant. I think it fair to
say that this falls considerably short of being a thorough
investigation of serious allegations by an employee and
"One somewhat distressing incident should be reported. When
cross-examination of Mrs Gay began, Respondent's counsel noted that
Mrs. Gay had some writing on the palm of her left hand . Upon inquiry as
to its purposeanduse - it proved indecipherable -Mrs.Gay stated she had
written some numbers there while sitting in the car before the hearing
opened . No one, including the Trial Examiner , was able to say that she
had at any point during her testimony referred to the writing Counsel for
the General Counsel disclaimed all knowledge of the writing After I
admonished Mrs. Gay, the hearing proceeded. While I view her conduct in
this regard as ill-advised , on balance I exonerate her of any deliberate
misconduct or intention surreptitiously to rely on a memory aid
"Article VI provides that seniority "shall be established on a plantwide
basis." Seniority applies "in all cases of layoff, recall, transfers, shift
preference , filling of new jobs or vacancies , provided the employee is
capable of performing the work available " In the case of layoffs the
employees having the least plant seniority shall be laid off first providing
the remaining employees can perform the work available . Similarly, when
decreasing the work force in any classification , the employee with the least
plantwide seniority in the classification shall be displaced . The displaced
employee will be laid off in accordance with the layoff procedure or shall
be entitled to displace the employee with the least plantwide seniority in
the classification of his choice if he can perform the work available
325
union official against the second-ranking member of
management in the plant.
Steffen's testimony is uncontradicted, and I have no
basis on which to discredit it, that Works Manager Buda
and he, several days before May 14, concluded that a day
shift solderer should be moved to the night shift. Why
Steffen delayed implementing this decision for a number
of days is not explained, other than by the rather lame
excuse that he was lax. Nor does the manner in which he
announced the transfer of Mrs. Gay, moments after she
had presented him with two very unwelcome grievances,
have the hallmarks of routine managerial action.
Although Steffen testified that he had earlier made inquiry
of Foreman Mullins who was the junior employee in the
soldering classification on the day shift, it does not appear
that the matter had been discussed with Union President
White (except an inquiry by Steffen of White as to the
correct procedure) or the bargaining committee and little,
if any, thought appears to have been given to Mrs. Gay's
personal convenience involved in any rearrangement of her
work schedule from days to nights or the possibility of
someone volunterring for the night shift. I think it fair to
conclude, as I do, that Steffen acted more out of pique
than in a deliberate and impersonal fashion. This is not to
say that he was necessarily motivated by discriminatory
considerations. However, when we examine and weigh all
the circumstances, his action seems to be closely and
inseparably related to Mrs. Gay's insistent presentation of
the two grievances. That her action in so doing was
protected activity, is too plain to require citation of
authority. But it further seems plain that the hasty nature
of Steffen's action is further indicated by the fact that he
failed to inform Mrs. Gay on what day the transfer was to
be effective, in view of his knowledge of her transportation
and other problems. Considering all the circumstances, I
come to the conclusion that Steffen announced the
transfer to Mrs. Gay, when he did, for the reason that she
had annoyed him by presenting two grievances which he
thought were totally lacking in merit , thus putting him to
the trouble of formally answering them. I thus believe that
this action on the part of Steffen was prompted by her
protected activity and, therefore, was violative of Section
8(a)(3) and (1) of the Act.
Concerning the Parker and McClure grievances,
considerable record time was spent in examining into their
merits under the applicable contract provisions. It seems
unnecessary for the purposes of determining the issues
here involved to indulge in a discussion of that subject,
since it is perfectly plain that whether or not they had
merit Mrs. Gay was engaged in a protected activity as a
union steward in discussing these grievances with
management and in preparing and presenting them.
Parenthetically, I think it fair to observe that Mrs. Gay
probably had an erroneous notion regarding the operation
of the overtime agreement attached to the contract and, in
consequence, the disposition of these grievances made at
the fourth step meeting on June 12 appears to be entirely
correct.
There can be no doubt that Mrs. Gay was the junior
solderer in the soldering department. Moreover, while
other employees working under the jurisdiction of
Foreman Mullins may have had less seniority than Mrs.
Gay, I think it is correct to observe, in agreement with the
Respondent, that these junior employees had
classifications different from soldering. Therefore,
according to the literal provisions of the contract,
inasmuch as no layoff was involved Mrs. Gay did not
enjoy bumping rights. However, the Respondent's director
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of industrial relations, Mr Hoekenga, testified that while
classifications go by job responsibility and not by level of
pay, when there is an equalization in the work force as
was involved in Mrs Gay's case, employees do in fact
enjoy bumping rights Thus he testified that in Mrs Gay's
case, "due to the fact that it was a second shift job that
she would have had to go to, then we allow them to stay
on the first shift if they have qualifications to bump on
other jobs They can stay on the first shift if they want
to " Concerning Section 8 of Article VI, governing
seniority, which provides that when "decreasing work
force in any classification, the employee with the least
plantwide seniority in the classification shall be displaced"
and the "employee displaced will be laid off or shall
displace the employee with the least plantwide seniority in
the classification of his choice if he can perform the work
available " Hoekenga testified that this pertained to or
was intended to cover situations involving job elimination,
not work equalization. Since no job elimination was
involved in connection with Mrs Gay's proposed transfer,
it appears that Hoekenga was not mistaken in testifying
that during the June 12 conference Mrs Gay's bumping
rights were discussed and it was concluded that "she could
bump other jobs on the first shift or take open jobs as
they occurred or go to the second shift " In short,
employees working on the first shift could, in conjunction
with a work equalization transfer, exercise seniority rights
in connection with other job classifications on the first
shift, contrary to Steffen's reading and announced
application of the contract which necessitated Mrs Gay,
as the junior solderer in the department regardless of shift,
to move to the second shift as a solderer or take a job
opening in another classification on the first shift, namely,
the FX assembler job
An examination of the seniority roster for the week
ending May 12 shows that Mrs Gay was the most junior
solderer on the day shift At that time there were 10
solderers on the day shift and 3 on the night shift
However, Mrs Gay had seniority over three employees
(Jesse Smith, Gladys Cates and Lorene McClure) who
worked as leak testers in the soldering department on the
day shift, she also enjoyed seniority user Kathy Morgan
who worked as an assembler - FX gauge roll-out--on the
day shift The seniority roster for the week ending May 19
discloses that there were 10 solderers, including Mrs Gay,
on the day shift and 3 on the night shift Mrs Gay again
was the most junior solderer in the entire group However,
there were the same three employees engaged as leak
testers on the day shift with less seniority than she and, in
addition, Kathy Morgan was still on the same assembler
job and she had less seniority than Mrs Gay The
Respondent's records show that Mrs Gay was transferred
to assembler on May 21 and that her job as a solderer
was posted on May 16 However, the successful bidder on
her job, Ballinger, did not actually transfer to the job of
solderer on the night shift until May 2718 Steffen
explained the reason for this delay by testifying that the
job from which Ballinger was transferring needed to be
filled before he assumed the job of solderer, he had been
the ring and glass assembler, a job generally filled by a
male and a vital function in the assembly process.
Since I have found that the transfer of Mrs Gay was
tainted by discriminatory considerations, and inasmuch as
it fairly appears that the jobs thereafter assigned her
"As counsel for the General Counsel points out in his brief, the number
of solderers on the night shift was at the level of five from May 27 to
August It, when it reverted to four
involved severe physical discomfort for her, a fact known
to management, I think it logically follows that her
quitting her job on June 15 must be viewed as a
constructive discharge induced by similar discriminatory
motives on the part of the Respondent I so find, and
accordingly conclude that Mrs Gay's termination of
employment was violative of Section 8(a)(3) and (1) of the
Act 19
Paragraph 5 of the complaint alleged that
Superintendent Steffen violated Section 8(a)(1) of the Act
by the following conduct (a) on or about May 14 offering
improved benefits to an employee in return for a promise
to withdraw a grievance, (b) on or about May 15 stating
to an employee that the agreement between the
Respondent and the Union did not mean a thing to him,
(c) on or about June 10 stating to an employee that the
seniority provisions of the contract between the parties
need not be observed, and (d) on or about May 2
promising an employee that if the employee withdrew a
grievance the employee's job would be changed as
requested In addition, the complaint alleged that Works
Manager Buda violated Section 8(a)(I) by on or about
May 16 threatening an employee with disciplinary action
because of that employee's processing of a grievance
No evidence was adduced concerning the incident
attributed to Buda, and it will therefore be dismissed.
There is no evidence that on or about May 2
Superintendent Steffen promised an employee that it a
grievance were withdrawn the employee's job would be
changed in the manner requested Nor do I find any
substance to the remaining three allegations relating to
Superintendent Steffen, although there is some testimony
pertaining thereto It will be recalled that Mrs Gay
alleged in her grievance and also testified that when she
was discussing the Parker and McClure grievances with
Steffen he told her that she should forget about the
grievances and about the Union and, if she did so, she and
he would get along fine Mrs Gay construed this as a
"bribe " I find nothing of that nature in Steffen's remark
I think the most that can be made of it is that Steffen,
being of the definite view that the Parker and McClure
grievances were lacking in merit, attempted to prevail
upon Mrs Gay as steward to refrain from writing up the
grievances and causing them to be processed, and, in
pursuit of that endeavor, may have made some remark to
the effect that she should forget about them and the literal
language of the contract As to the remaining allegation,
that he stated the contract between the Respondent and
the Union meant nothing to him, on its face this seems
but an expression of opinion I think it fairly appears
from Mrs Gay's testimony that a remark substantially to
that effect was made by Steffen when they were discussing
the grievances but, contrary to Mrs Gay, the purport of it
was to convey that in the particular situation the contract
had no application
Upon the entire record, I find that in the respects
alleged in the complaint the Respondent has not
independently violated Section 8(a)(1) of the Act
Accordingly, it will be recommended that the complaint
be dismissed in these respects
"This is by no means an open and shut case The able brief of
Respondent's counsel has given me considerable pause in arriving at my
conclusions After careful consideration I am, however , persuaded that
counsel for the General Counsel has sustained his burden of proof both as
to the transfer and the constructive discharge of Mrs Gay
DRESSER INDUSTRIAL VALVE & INSTRUMENT DIV.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(3) and (1)
of the Act, I shall recommend that the Respondent cease
and desist therefrom and take appropriate affirmative
action in order to effectuate the policies of the Act.
Since I have found that the Respondent discriminatorily
transferred and constructively discharged Beulah M. Gay,
I shall recommend that the Respondent offer her
immediate and full reinstatement to her former or
substantially equivalent position , without prejudice to her
seniority or other rights and privileges, and make her
whole for any loss of earnings she may have suffered from
the date of the discriminatory discharge to the date of the
Respondent's offer of reinstatement. The backpay shall be
computed in accordance with the formula approved in F
W. Woolworth Company, 90 NLRB 289, with interest at
the rate of 6 percent per annum , as provided in Isis
327
Plumbing & Heating Co., 138 NLRB 716. I shall also
recommend that the Respondent preserve and upon
request , make available to the Board, payroll and other
records to facilitate the computation of backpay due.
As the unfair labor practices committed by the,
Respondent are of a character striking at the root of
employee rights safeguarded by the Act , I shall
recommend that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Dresser Industrial Valve & Instrument Division,
Dresser Industries Incorporated , is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Local 399, International Union , Allied Industrial
Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by transferring Beulah M. Gay on May 21, 1968,
and by constructively discharging her on June 15, 1968.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
5 In other respects alleged in the complaint, the
Respondent has not engaged in unfair labor practices.
[Recommended Order omitted from publication.]