International Harvester Co.

National Labor Relations Board - Board Decisions

Mar 5, 1974

209 N.L.R.B. 357 (N.L.R.B. 1974)

HOUGH DIV. OF INTL. HARVESTER
Hough Division , International Harvester Company
and Henry C. Winslow
Local 1643, United Automobile, Aerospace & Agricul-
tural Implement Workers of America and Henry
C. Winslow. Cases 13-CA-11795 and
13-CB-4484
March 5, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon charges duly filed, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 13, issued a consolidated
complaint and notice of hearing, dated November
30, 1972, against Hough Division, International
Harvester Company (hereinafter Respondent Em-
ployer) and Local 1643, United Automobile, Aeros-
pace & Agricultural Implement Workers of America
(hereinafter Respondent Union). The complaint
alleged that the Respondents had engaged in and
were engaging in certain unfair labor practices
affecting commerce within the meaning of Sections
8(a)(1) and (3), 8(b)(1)(A) and (2), and 2(6) and (7) of
the National Labor Relations Act, as amended.
Copies of the charges, order consolidating cases, and
complaint and notice of hearing were duly served
upon the parties. Respondents individually filed their
answers to the complaint, denying commission of
unfair labor practices and requesting that the
complaint be dismissed.
Thereafter, the parties entered into a stipulation of
facts and jointly petitioned the Board to transfer this
proceeding directly to itself for findings of fact,
conclusions of law, and Order. The parties stipulated
that they waived a hearing before an Administrative
Law Judge, the making of findings of fact and
conclusions of law by an Administrative Law Judge,
and the issuance of an Administrative Law Judge's
Decision, and that no oral testimony was necessary
or desired by any of the parties. The parties also
agreed that the charges, consolidated complaint, the
answers thereto, and the stipulation of facts consti-
tute the entire record in this case.
On May 8, 1973, the Board issued its Order
granting petition, approving stipulation, and trans-
ferring the proceeding to the Board. Thereafter, the
General Counsel and Respondent Union filed briefs
in support of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I The position of Respondent Employer was set forth in a letter by its
counsel to the Board's Regional Office shortly before the complaint was
209 NLRB No. 54
357
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the stipulation, includ-
ing exhibits, the briefs, and the entire record in this
proceeding, and hereby makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent Employer is a Delaware corporation,
with its home office and principal place of business
in Chicago, Illinois. It maintains a plant known as
the Hough Division in Libertyville, Illinois. This
division is engaged in the manufacture of road-
building and general excavating heavy equipment.
During the last calendar year, a representative year,
Respondent Employer, in the course and conduct of
its operations, purchased goods having a value in
excess of $50,000 from sources located outside the
State of Illinois, and caused these goods to be
shipped directly from their sources to the Hough
Division plant at Libertyville, Illinois.
The parties have stipulated, and we find, that
Respondent Employer is, and at all material times
has been, an employer within the meaning of Section
2(6) and (7) of the Act. We find that it will effectuate
the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties have stipulated, and we find, that
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Since some time prior to 1950, the International
Union, United Automobile, Aerospace & Agricultur-
al Implement Workers of America (hereinafter
UAW) and various affiliated locals have represented
employees of Respondent Employer at many of its
plants throughout the United States. At these
locations, the bargaining relations between the
parties have been governed by one Production and
Maintenance Main Labor Contract (hereinafter
Master Agreement) executed by Respondent Em-
ployer and UAW.
From 1953 to June 3, 1970, the UAW and its
affiliated Local 1301 represented a unit of pro-
duction and maintenance employees at Respondent
Employer's "Tractor Works" facility in Chicago.
Other employee units at Tractor Works were repre-
sented by other unions. On or about June 3, 1970,
issued In all material respects, its position conforms with that of
Respondent Union described in detail below
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tractor Works ceased operations. Shortly prior to
and shortly after the closing of the Tractor Works
facility, Respondent Employer and four unions,
including UAW Local 1301, entered into separate
agreements covering the transfer of their respective
unit employees from Tractor Works to other Respon-
dent Employer plants. The agreement between
Respondent Employer and the UAW, its Local 1301,
and other affiliates covering employees the UAW
represented provided that all Tractor Works pro-
duction and maintenance employees transferring into
plants of Respondent Employer, other than its
Hough Division, would be given a pegged seniority
date of October 1, 1961. Employees transferring into
Hough Division plant would he given a pegged
seniority date of September 1, 1969.2 The agreements
between Respondent Employer and the local affili-
ates of the other three unions, Chicago Journeymen
Plumbers Association (Plumbers), International Die
Sinkers Conference (Die Sinkers), and International
Brotherhood of Electrical Workers (IBEW), howev-
er, specifically waived the granting of portable
seniority for any of their respective employees
transferring out of Tractor Works, but instead
provided that their seniority dates would commence
on the date they started work at the plant to which
they transferred.3
After the closing of the Tractor Works plant, a
number of its employees transferred into the Hough
Division plant. Some of them were transferees from
the production and maintenance unit represented by
the UAW and its Local 1301. Ten employees,
however, were transferees from the units represented
by the other three unions. All of the transferees
became part of an overall production and mainte-
nance unit at the Hough Division plant, which was
represented by the UAW and UAW Local 1643,
Respondent Union.4 In anticipation of the Tractor
Works closing, UAW, Local 1643, and Respondent
Employer, on March 2, 1970, signed an agreement
which provided for a pegged seniority date of
September 1, 1969, for all employees transferring to
Hough from Tractor Works, presumably including
those 10 employees who had been in the non-UAW
units there.5
At a May 1972 membership meeting, Respondent
Union voted to grant an October 1, 1961, pegged
seniority date to all transferees from Tractor Works.
There is nothing to indicate that Respondent
intended to limit the effect of this decision to
employees represented by the UAW at Tractor
Works. Respondent Union subsequently demanded
of Respondent Employer that it take action in
conformity with that decision. On August 10, 1972,
UAW International Representative Paul Korman
instructed Respondent Employer to exclude from the
pegged seniority request the 10 members of Respon-
dent Union who had transferred from the non-UAW
units at Tractor Works. Since that time, Respondent
Employer has complied with Korman's request and
granted additional seniority only to the Tractor
Works transferees who were formerly in the UAW
unit. Pursuant thereto, 2 of the 10 non-UAW unit
transferees, W. Feret and Louis Krolis, were subse-
quently "bumped" to lower job classifications be-
cause of their lack of seniority.
The complaint alleges that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act in
August 1972 by seeking to arrange that the employ-
ees who had transferred from non-UAW units at
Tractor Works receive less seniority than their fellow
unit employees who had been members of the UAW
unit at Tractor Works. The complaint further alleges
that Respondent Employer violated Section 8(a)(3)
and (1) of the Act by acquiescing in and implement-
ing such arrangement.
B. Contentions of the Parties
Respondent Union initially asserts in its brief that
it did not commit the acts complained of in that the
request to exclude the 10 non-UAW unit transferees
from greater seniority benefits was made by Kor-
man, a UAW international representative, who could
not bind Respondent Union absent the latter's
ratification or cooperation. Assuming that Korman's
actions were properly imputed to it, Respondent
Union further argues that the denial of greater
seniority to the 10 alleged discriminatees was
properly motivated by its good-faith attempt to abide
by the provisions of the Master Agreement which
guaranteed a portable pegged seniority date of
October 1, 1961, to all transferees from the UAW
unit at Tractor Works.6 Since the 10 alleged
discriminatees were never part of the UAW unit at
2 Although the agreement refers to all Tractor Works employees, the
stipulation makes it clear that this agreement covered only employees
represented by the UAW and its locals
3 The Die Sinkers contract did provide for portable seniority , but only
for employees transferring into certain plants of Respondent not in issue
here,,
UAW and the affiliated Respondent Union had represented the
employees in that unit since August 1969
5 In this regard, we have noted that par. 12 of the Stipulation of Facts
has described this agreement as only bestowing the pegged 1969 seniority
dates on those transferees from the UAW unit at Tractor Works. For
reasons outlined below, we need not resolve this conflict in the record
between the stipulation and wording of the agreement itself , attached to the
stipulation as Exh. F
6 The relevant portions of art. XVI. sec. 5-Seniority-of the Master
Agreement (1968-71 ) read as follows:
(h) If the transfer of major operations between Works or to a new
Works results in the permanent termination of employees with
seniority. the Company will give preference to the application of a laid
off employee having seniority in a bargaining unit covered by this
contract for employment in a bargaining unit represented by the
HOUGH DIV. OF INTL. HARVESTER
Tractor Works, they never enjoyed the portable
seniority guaranteed under the Master Agreement to
those other employees represented by Respondent
Union who were in that UAW unit. Therefore, the
denial of the greater seniority benefits to these 10
employees was not based on their former non-UAW
membership status, but on their former non-UAW
unit status and hence was not violative of Section
8(b)(1)(A) and (2) or 8(a)(3) of the Act. Respondent
Union finally argues that, as the 10 alleged discrimi-
natees were first denied superior seniority rights
when they transferred to Hough in 1970, their
charges, filed in September 1972, were untimely and
their complaint therefore should be dismissed on
these grounds, barred by Section 10(b) of the Act.
General Counsel asserts in its brief that there had
been a history of uniformity of treatment of all of the
Tractor Works transferees by Respondent Union, as
evidenced by the March 1970 agreement between
Respondent Union and Respondent Employer, and
the Respondent Union's May 1972 request that all
transferees from Tractor Works be granted a pegged
1961 seniority date. Korman's request in August
1972, that the 10 former non-UAW unit employees
of Tractor Works be excluded from the May 1972
request and Respondent Employer's agreement,
amounted to unlawful coercion of these 10 employ-
ees and discrimination against them because of their
non-UAW membership status at Tractor Works.
General Counsel also argues that, while Korman was
a UAW international representative and not an
official spokesman for Respondent Union, his
request was ratified by the Union in that it did not
object to Korman's initial request, or subsequent
"bumping" of employees Feret and Krolis. General
Counsel acknowledges that the Master Agreement
gives superior rights to ex-UAW unit employees at
Tractor Works, but contends that this agreement was
superseded by the subsequent March 1970 agreement
between Respondent Employer and Respondent
Union which gave equal seniority rights to all ex-
Tractor Works employees.
C. Conclusions
The seniority status -of employees transferring into
an already existing plant unit represented by an
incumbent union has always posed difficult prob-
lems, especially where the transferees have come
Union to which the work is transferred .
(c) When employed , such employee will have the status of a
probationary employee in the new Works . Upon completion of
the probationary period. semonty will date back to October 1, 1961, or
his seniority date, whichever is later
The successor Master Agreement (1971 to date) does not differ in any
material aspect
359
from a plant unit which was either represented by
another union or was unrepresented altogether.7
In the instant case , however, we note that the usual
dilemma of how to dovetail the seniority of the
employees transferring to the Hough Division from
the various employee units of Tractor Works was not
only contemplated, but a specific resolution was
provided therefor by all the interested parties, the
Plumbers, Die Sinkers, and IBEW, as well as the
UAW, their affiliated locals, and Respondent Em-
ployer. The UAW-Employer Master Agreement, and
a supplemental transfer agreement between Local
1301, UAW, and Employer provided, in effect,
portable seniority for all UAW unit employees
transferring from Tractor Works to Hough. The
other three unions also negotiated transfer rights on
behalf of their respective employees, but specifically
waived portable seniority. Given such an arrange-
ment by Respondent Employer and the bargaining
representatives of all the employees concerned, we
cannot now hold that in effectuating such an
arrangement and granting portable seniority only to
the transferees from the UAW unit at Tractor
Works, Respondent Union and Respondent Employ-
er violated Section 8(b)(1)(A) and (2) and 8(a)(3) of
the Act.
The General Counsel relies on the March 1970
agreement between the Respondents, wherein they
contracted to treat all the Tractor Works transferees
in a uniform manner regarding seniority, as the
linchpin of his case. By subsequently taking away the
seniority rights of the 10 non-UAW unit transferees,
argues General Counsel, the Respondents unlawfully
discriminated against them. Respondent Union
counters with the contention that the March 1970
agreement between Respondents was intended to
cover only transferees from the UAW unit at Tractor
Works, and the parties in this proceeding stipulated
to such coverage in the stipulation of facts. We are
thus faced with a conflict in the record between the
March 1970 agreement itself , which on its face
accords pegged seniority dates to all transferees from
Tractor Works, including the 10 alleged discrimina-
tees, and the stipulation, which interprets the
agreement in such a way that these 10 alleged
discriminatees are not to be accorded such seniority
dates. However, we need not resolve this conflict in
the evidence since a resolution in favor of the
General Counsel would not cause us to change our
7 See International Brotherhood of Teamsters, Chauffeurs . Warehousemen
and Helpers of America, Local Union No 17 (Colorado Transfer & Storage,
Inc), 198 NLRB No 42; International Photographers of the Motion Picture
Industries, Local 659 of the International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the United States and
Canada (MPO-TV of California, Inc, Y-A Productions, Inc), 197 NLRB
1187. Compare Fleet Carrier Corporation, 201 NLRB 227
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion that Respondents did not violate the Act
as alleged in the complaint. Given the 1970 agree-
ment as construed by the General Counsel, such an
agreement would be a clear departure, most likely
inadvertent, from the Master Agreement, under
which the benefits of portable seniority accrued only
to those employees covered by it. The subsequent
reversal of policy and refusal to grant portable
seniority to the 10 non-UAW unit transferees would
represent nothing more than an attempt to bring the
dealings between Respondent Union and Respon-
dent Employer back within the framework of the
Master Agreement and, for that matter, the effects-
of-transfer agreements negotiated by the other three
unions.
In sum , we perceive nothing coercive or discrimi-
natory about the way Respondents treated the 10
non-UAW unit transferees. They never had any
vested portable seniority rights at the time of transfer
which could later be unlawfully denied them by
either Respondent Union or Respondent Employer.
We therefore are unable to conclude that Respon-
dent Union and Respondent Employer violated the
Act as alleged in the complaints ,
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. Hough Division, International Harvester Com-
pany, did not violate Section 8(a)(3) and (1) of the
Act.
4. Local 1643, United Automobile, Aerospace &
Agricultural Implement Workers of America, did not
violate Section 8(b)(1)(A) and (2) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
MEMBER KENNEDY, dissenting:
Equal treatment of employees in establishing a new
seniority date was agreed to by both the Respondent
Union and the Respondent Employer for those
employees who transferred to the Hough Division
8 By so finding , we need not dispose of Respondents ' defenses of lack of
agency and untimeliness of the charges
9 My colleagues point to a conflict between the wording of the
agreement and the recitation of what the agreement was in par 12 of the
stipulation of facts My colleagues find it unnecessary to resolve the conflict
because in any event they reach the same conclusion to dismiss the
complaint I disagree and would resolve the conflict in favor of the clear and
-plant as a result of the closing of the Tractor Works
plant. Notwithstanding that specific agreement,
unequal treatment subsequently was accorded to
those same employees long after their transfer to the
Hough Division plant.
The sole basis used for the disparate treatment of
these employees was whether in past years the
employees had been represented by the UAW in the
Tractor Works. If the employees had been represent-
ed previously by the UAW, then the UAW request-
ed, and the Employer acquiesced, in giving those
employees a superior seniority date of October 1,
1961. If the employees had not been represented
previously by UAW in the Tractor Works, then they
were denied that early seniority date. In my view, this
belated reversal of the specific agreement to equal
treatment of transferring employees and the resulting
disparity of treatment based solely on prior UAW
representation in the Tractor Works violated the Act
as alleged by the General Counsel.
On March 2, 1970, in anticipation of the closing of
the Tractor Works plant, the Respondent Employer
and both the International Union of UAW and its
affiliated Local Union 1643 entered into an agree-
ment whereby a pegged seniority date of September
1, 1969, was agreed to for "any Tractor Works
employee who may be transferred to the Local 1643
bargaining unit at Hough Works as a result of the
Tractor Works closing." This clear and express intent
of the parties is made plain in paragraph 2 of that
agreement and is repeated in unequivocal language
in paragraph 4 of the agreement .9
The agreement provides:
THIS AGREEMENT is entered into this 2nd day of
March, 1970, by and between INTERNATIONAL
HARVESTER COMPANY (hereinafter called the Com-
pany) and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, and its affiliat-
ed Local Union 1643 (hereinafter collectively
called the Union).
WHEREAS, the Company has been advised that
the members of Local 1643 have voted to provide
a pegged seniority date of September 1, 1969, at
Hough Works of the Company, to any Tractor
Works employee who may be transferred to the
Local 1643 bargaining unit at Hough Works as a
result of the Tractor Works closing, and
WHEREAS, the Union has requested the Compa-
unambiguous language of the document itself There is no need to look
beyond the document for interpretation of its precise reference to "any
Tractor Works employee" which is stated not once, but twice , in the four
short paragraphs of the agreement Moreover , the language of the document
is consistent with par 14 of the stipulation concerning the action taken in
the May 1972 union meeting concerning a pegged seniority date for "all
transferees from Tractor Works "
HOUGH DIV . OF INTL. HARVESTER
ny to enter into an agreement in accordance
therewith;
NOW THEREFORE, the Company and the Union
do hereby agree, notwithstanding anything to the
contrary appearing in any Master Labor Con-
tract, supplemental letter agreements or local
seniority supplement agreements entered into
between the Company and the Union, that for
purposes of seniority, any Tractor Works employ-
ee who, as a result of the Tractor Works closing,
is transferred to the Local 1643 bargaining unit at
the Company's Hough Works will be credited
with a pegged seniority date in the Local 1643
bargaining unit of September 1, 1969.
Dated this 2nd day of March, 1970
FOR THE COMPANY FOR THE UNION
/s/ T. F. Logan /s/ Frank C. Muse
Hough Works Local 1643
/s/ Robert F. Crowel /s/ S. Kahan
International Union
Furthermore, the agreement expressly provided
that the parties entered into it "notwithstanding
anything to the contrary appearing in any Master
Labor Contract, supplemental letter agreements on
local seniority supplement agreements entered into
between the Company and the Union." Thus, the
parties expressly waived whatever contrary provi-
sions existed in other agreements in favor of equal
treatment for all employees transferring from the
Tractor Works plant.
Thus, as of March 2, 1970, the International Union
of UAW, its Local 1643 at the Hough Division, and
the Employer were in complete agreement as to
granting a uniform seniority date of September 1,
1969, to those employees transferring from the
Tractor Works plant which subsequently ceased
operations on June 3, 1970. That agreement re-
mained unchanged for over 2 years.
10 The 10(b) issue raised as a defense by the Respondent Union is not
ruled upon by the majority My Colleagues reach the merits of the case and
find that the complaint lacks merit , so they abstain from deciding the issue
of whether Sec. 10(b) of the Act bars such consideration of the merits In the
vernacular , this is "putting the cart before the horse " In my opinion, it is
necessary first to decide whether the unfair labor practice charges are timely
filed within the scope of Sec 10(b) I would do so here and conclude that
the finding of an unfair labor practice is not barred by Sec 10(b) because
the discrimination occurred in August 1972 when the 10 employees were
denied the 1961 seniority date Since the original charges were filed on
September 18, 1972, the allegations of the complaint clearly occured within
6 months of the filing and service of the charges as required by Sec 10(b)
li The defense that the Respondent Union should not be held
responsible for the acts of the international representative of UAW was also
not ruled upon by the majority. I would find that the Respondent Union is
liable for the international representative 's action in requesting the
Employer to deny a 1961 seniority date to employees not represented by the
UAW at Tractor Works The International Union and its affiliated Local
361
Then in May 1972 the members of UAW Local
1643 voted to grant a seniority date of October 1,
1961, to "all transferees from Tractor Works to
International Harvester ." The Union made written
requests to the Employer to this effect . However, on
August 10, 1972, an international representative of
UAW requested the Employer not to grant the 1961
seniority date to employees "who had not been
employed in the production and maintenance unit or
the other units represented by UAW at the time of
their departure from Tractor Works."
Instead of the equal and uniform treatment which
the parties had previously agreed to , the Employer
denied 10 employees a 1961 seniority date solely
because they had not been represented for collective
bargaining by UAW at the Tractor Works plant.
That was the only basis for treating those 10
employees in a disparate manner from the rest of the
transferees . In my view , this discrimination in August
1972 violated the Act.10
The majority concludes that the Union's request"
in August 1972 was a "reversal of policy" and
"nothing more than an attempt to bring the dealings
between Respondent Union and Respondent Em-
ployer back within the framework of the Master
Agreement ." Thus, the justification for the disparate
treatment of the 10 transferees not previously
represented by UAW is grounded on the terms of a
contract which all parties had expressly waived in the
March 2 , 1970, agreement.
We should heed the teachings of the Ninth Circuit
in the Menasco Manufacturing Company case 12 at
765:
But while the latitude necessary to allow a
union and an employer to negotiate an agreement
must as a practical matter be broad enough to
permit them to draw distinctions between differ-
ent classes of employees, still this latitude is
plainly limited by the public policy, expressed in
the Act itself, which forbids either union or
employer to discriminate against an employee so
1643 jointly represent the unit employees at the Hough Division. The
International Union jointly signed the March 2, 1970, agreement with the
Employer concerning the equal and uniform treatment to be accorded
transferring employees in establishing a common seniority date It was the
Local Union in May 1972, which initiated the request to extend the
seniority date back to 1961 and the international representative's action
followed thereafter Furthermore , the Employer took the action requested
by the international representative to the detriment of the 10 employees.
There is no showing on this record that the Local Union protested that
action or in any way showed that it did not acquiesce in and ratify the
action of its International Union In these circumstances , I would find the
Local Union to be responsible for causing the discrimination against these
10 employees in the unit which the Local Union jointly represents with its
international
is N.LR B v. International Association of Machinists, Aeronautical
industrial District Lodge 727 and Local Lodge 758, AFL-CIO [Menarco
Manufacturing Company], 279 F 2d 761 (1960), cert. denied 364 U S 890
(1960)
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to encourage or discourage his membership in
a union. It is clear as well that this policy would
forbid seniority status being used as a basis for
perpetuating any discrimination against employ-
ees in violation of the Act. [Citations omitted.]
they had previously been represented by UAW at
another plant and the contemporaneous denial of
such an early seniority date to transferees who were
not previously represented by the Union is clearly
discriminatory within the meaning of the Act and I
would so find.
In my view, the granting of superior seniority all
the way back to 1961 to transferees solely because