Int'l Union, United Automobile, Aircraft, Etc.

National Labor Relations Board - Board Decisions

Nov 6, 1964

149 N.L.R.B. 482 (N.L.R.B. 1964)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union, United Automobile , Aircraft and Agricul-
tural Implement Workers of America , AFL-CIO and Amal-
gamated Local 4531 and Hugh McRoberts
Maremont Corporation and Hugh McRoberts . Cases Nos. 13-CB-
1372 and 13-CA-5409. November 6, 1964
DECISION AND ORDER
On March 23, 1964, Trial Examiner David London issued his Deci-
sion in the above-entitled consolidated proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the attached
Trial Examiner's Decision. Thereafter, the General Counsel and the
Respondent Amalgamated Local 453 filed exceptions to the Trial
Examiner's Decision together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and modifi-
cations.
Chairman McCulloch and Members Leedom and Jenkins agree with
the Trial Examiner that the Respondent Amalgamated Local 453, by
causing the Respondent Maremont to discriminate against the em-
ployees from Central Tool and Die as to their accrued seniority,
violated Section 8(b) (1) (A) and 8(b) (2) of the Act and that the
Respondent Maremont Corporation thereby also violated Section
8 (a) (3) and 8 (a) (1). All of the above-named Members agree with
the Trial Examiner that Local 453, acting through the Unit,2 did not
rely in good faith on article I, section 6 of the contract (the "layoff"
'As no exceptions were filed to the Trial Examiner's recommended dismissal of the
complaint insofar as it alleged that the International Union had engaged in unlawful
conduct, we adopt such recommendation pro forma.
2 The term "Unit" is used hereinafter to refer to Unit 21 of Respondent Local 453.
Unit 21 is the administrative division of that Local which has jurisdiction over the
Maremont employees involved herein. The Unit has its own officers and administers the
collective-bargaining agreement between Local 453 and Maremont. However, officials of
Local 453 help to negotiate contracts and have general supervision over the Unit's
activities . The Trial Examiner found , and the Board agrees , that Unit 21 is not an
autonomous union but an agent of Respondent Local 453 , and that the Respondent Local
is responsible for any unfair labor practices committed by the Unit.
149 NLRB No. 48.
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 483
clause) in urging that the employees who moved from Central Tool
and Die to Harvey Maintenance and were in the contract unit were
not entitled to retain their accrued seniority. They differ, however, as
to the basis for finding a violation herein.
Member Leedom agrees with the Trial Examiner, and for the rea-
sons stated by him, that the Unit was motivated in its conduct by
animosity against the affected employees because of their race. Thus,
like the Trial Examiner, he believes that the record establishes that
the Unit, which was mainly composed of Negro members and officers,
harbored resentment against the employees in Central Tool and Die
because of the "lily-white" nature of that shop and because of the
failure of the Central Tool and Die employees to make any efforts to
bring about the employment of Negroes. Because the Unit pressed its
position concerning the reduction of the employees' seniority, which
position was grounded upon considerations of race, in negotiations
with Maremont, and because this resulted in Maremont acceding to
the Unit's proposal, Member Leedom would find, in agreement with
the Trial Examiner, that the Unit attempted to cause and did cause
the discrimination here in violation of Section 8(b) (2) and 8(b) (1)
(A) of the Act.3 He would also find that, as the Unit's conduct was
based on racial considerations, it has failed to fulfill its duty as ex-
clusive bargaining representative to represent all employees in the
bargaining unit fairly, impartially, and without invidious discrimina-
tion, thus violating Section 8(b) (1) (A).4 Member Leedom further
agrees with the Trial Examiner that Respondent Maremont, by ac-
ceding to the Unit's unlawful demands, "albeit unwillingly," thereby
discriminated against the affected employees in violation of Section
8(a)(3) and (1).
Chairman McCulloch would find that the foregoing conduct by the
Unit was motivated at least in part by union considerations and to
that extent violated Section 8(b) (2) and 8(b) (1) (A).5 He relies on
the testimony in the record that over a period of many years em-
ployees in Central Tool and Die (including some who are discrimi-
natees herein) opposed those who were administering the Unit and
frequently supported candidates opposing incumbent unit officials at
election time. Thus, Cellini, one of the discriminatees, testified with-
out contradiction that he had run unsuccessfully against Octavia
3lndependent Metal Workers Union (Hughes Tool Company), 147 NLRB 1573;
Miranda Fuel Co., Inc., 140 NLRB 181. See Galveston Maritime Association, 148
NLRB. 897.
4 I bid.
5 The Radio Officers' Union of the Commercial Telegraphers Union. (A. H. Bull Steam-
ship Company) v. N.L.R.B., 347 U.S. 17, 40; N.L.R.B. v. Shear's Pharmacy, et al., 327
F. 2d 479 (C.A. 2) ; N.L.R.B. v. Miranda Fuel Co., 326 F. 2d 172 (C.A. 2) ; N.L.R.B. V.
Local 294, International Brotherhood of Teamsters, etc. ( Valletta Motor Trucking Co.,
Inc.), 317 F.. 2d 746 (C.A. 2).
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hawkins for the position of unit chairman in 1958 and 1961, and that
he had supported Ellis in campaigns against Hawkins on other occa-
sions. Cellini had also run several times for a place on the bargaining
committee. In addition, there is testimony that union officials resented
the failure of Central Tool and Die employees to help Hawkins when
she was in difficulty with the International Union. Thus, one of the
Central Tool and Die employees testified without contradiction that
the plant's chief steward told him that "You would contribute noth-
ing to Octavia Hawkins' hearing at the time she had her trouble with
the International Union ... [and] ... Cellini didn't testify at the
hearing when Octavia was suspended, and that Octavia will never
forget that, so don't expect any favors." Central Tool and- Die em-
ployeeses were thus, in Chairman McCulloch's view, considered to be
the heart of the opposition movement within the Unit and it was this
factor which played a prominent part in the Unit's decision to press
for the reduction of seniority of employees in Central Tool and Die
when they moved to Harvey Maintenance. Chairman McCulloch
would, therefore, find that the Unit's use of its position as exclusive
bargaining representative to punish employees in the bargaining unit
for their dissidence in internal union affairs violated Section .8(b) (2)
and 8(b) (1) (A) of the Act.6 Chairman McCulloch would also find
that by submitting to the Unit's unlawful demands, Respondent
Maremont discriminated against the affected employee in violation
of Section 8(a) (3) and (1).
Member Jenkins would find, in agreement with Chairman McCul-
loch and Member Leedom, that the Unit's treatment of employees in
the bargaining unit violated Section 8(b) (1) (A) and (2). But he
would do so only on the following grounds.
Member Jenkins considers that the evidence herein is insufficient to
support a finding that the Unit sought to reduce the seniority of
Central Tool and Die employees directly because they were white.
He concludes on the basis of the entire record that there was intense
hostility between the two political factions in the Unit extending
over a period of approximately 15 years, and that, as is usual in such
situations, political differences degenerated into personal enmity and
these differences were exacerbated by real and imagined grievances.
Of significance in this connection is the fact that whites and Negroes
participated on both sides of this controversy. Thus, one of the
candidates supported for chairman of the Unit by employees in
Central Tool and Die, the "lily-white" shop, was a Negro. Further,
6 Chairman McCulloch expressly does not rely on the majority opinions in Hughes Toot
Company and Miranda Fuel Co., Inc., supra, footnote 3, in finding a violation. In accord
with his position in those cases , Chairman McCulloch believes that the Unit 's discrimina-
tion against employees in the bargaining unit because of race, assuming such discrimi-
nation existed herein , would not in itself be a basis for finding that Respondents violated.
Section 8 (b) (2), (1) (A ), and (a) (3), respectively.
I
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 485
white employees-sat on the unit,bargaining committee which nego-
tiated the reduction of seniority of the discriminatees. In, these cir-
,cumstances, Member Jenkins does not find that racial animosities
against the transferred employees were the direct cause of the Unit's
position at the bargaining table. .
Member Jenkins,finds from the evidence that despite the efforts of
the faction which was in power in the Unit, Central Tool and Die
remained a segregated department in an otherwise integrated plant.
When, the employer announced a change of operations which would
bring Central Tool and Die employes into Harvey Maintenance, it
became obvious that this combined operation would soon be inte-
grated. But, because of the history of exclusion of Negroes, they
would be lower on the seniority roster, since white employees at
Central Tool and Die , had, because of the segregation, benefited in
accumulating seniority and would start work at Harvey Maintenance
with more seniority and in one instance with 21 years. Member
Jenkins finds that, in an effort to obviate this, the Unit sought to de-
prive the white employees coming from Central Tool and Die of their
accumulated seniority. He notes that the seniority in question related
to the right of layoff and recall, and that no effort was made to
interfere with seniority rights to vacation or retirement benefits. The
latter are personal benefits not related to those of any other indi-
vidual, while the former can have meaning only insofar as they affect
other employees' jobs. The Unit thus was seeking to vitiate the effects
of years of racial discrimination at Central Tool and Die, at the
expense of the Central Tool and Die employees.
Thus, unlike Member Leedom, Member Jenkins finds that the op-
position of the Unit to the transfer of the seniority of Central Tool
and Die employees was predicated not on personal animosity to those
employees because of their race, but rather on the fact that Central
Tool and Die, where these employees had worked, had employed no
Negroes. However, in agreement with Chairman McCulloch, and for
the reasons given by him, Member Jenkins concludes that the position
of the Unit respecting the seniority of Central Tool and Die em-
ployees was also related to the latter's dissidence in internal union
matters.
Although, in light of these facts, the Unit's conduct in seeking to
vitiate the effects of years of racial discrimination may be under-
standable, this does not, Member Jenkins finds, excuse the Unit's
using its status as collective-bargaining representative to deprive
certain of the employees it represented of valuable seniority rights, to
which these employees would otherwise have been entitled. Such con-
duct, Member Jenkins concludes, violated Section 8(b) (1) (A) and
8 (b) (2) on two grounds; first, because it was based on invidious, irrel-
486 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
evant , and unfair considerations , and, second , because it, was based on
union considerations . He further finds that the employer 's acquies-
cence in such union demands violated Section 8(a) (3) and (1).'
THE REMEDY
As the Board has found, in agreement with the Trial Examiner,
that Respondent Local 453 violated Section 8(b) (2) and 8(b) (1) (A)
of the Act and that Respondent Maremont Corporation violated Sec-
tion 8 (a) (3) and (1) of the Act, we shall adopt the Recommended
Order of the Trial Examiner in order to remedy those violations.
However, since a majority of the Board does not agree with the Trial
Examiner that the violations herein were directly grounded on the
race or color of the discriminatees , we shall not adopt those portions
of the Recommended Order based on that finding.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended , the Board hereby adopts , as its Order, the Order recom-
mended by the Trial Examiner , with the following modifications,
and -orders that Respondent Amalgamated Local 453 , International
Union , United Automobile , Aircraft and Agricultural Implement
Workers of America, AFL-CIO, its officers , agents, representatives,
successors , and assigns and Respondent Maremont Corporation, its
officers, agents , successors, and assigns , shall take the action set forth
in the Trial Examiner 's Recommended Order.
Eliminate from paragraph A1(a) and B1 ( a) of the Trial Examin-
er's Recommended Order, from the first indented paragraph in the
Notice 8 contained in Appendix A, and from the first indented para-
graph in the Notice contained in Appendix B, the phrase "for reasons
of color or race."
7 See cases cited in footnote 3, supra.
8The address of Region 13 stated in Appendix A and B of the Trial Examiner 's Deci-
sion is amended to read: "219 South Dearborn Street , Chicago , Illinois , Telephone No.
828-7572." -
TRIAL EXAMINER'S DECISION -
STATEMENT OF THE CASE
Upon charges filed by Hugh McRoberts in the above-entitled cases on February
7, 1963, the General Counsel for the National Labor Relations Board, by the
Regional Director for Region 13 issued his consolidated complaint, 'dated June 25,
1963 , against Respondents ,, International Union , United Automobile, 'Aircraft
and Agricultural Implement Workers of America, AFL-CIO, and Amalgamated
Local 453, and ' Maremont • Corporation , - hereinafter referred to, respectively, as
the International , Local 453, ands the Company , alleging , that -the' International,
and its Local 453, had engaged and were engaging in unfair labor , practices
within the meaning ' of Section '8'(b)(1) (A) and 8 (b)(2)' of the Natiohal 'L'abor
Relations Act,, herein called the Act. ; The complaint also,alleges̀, that the Company
had engaged in and was engaging in unfair labor practices within then meaning
of Sectidh '8(a)(l)- and ( 3) "of the Act. The answer of' all three' ' Respondents
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 487
denied that they had engaged in any violation of the Act. Copies of the complaint,
the charges, notice of consolidation of cases, and hearing, were duly served upon
all parties.
Pursuant to notice, a hearing was held on October 14 through 18, 1963, at
Chicago, Illinois, before Trial Examiner David London. All parties were represent-
ed by counsel and were given full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant and competent evidence. Since
the close of the hearing, the General Counsel and Respondent Local 453 have
filed briefs which have been duly considered. Motions, upon which ruling was
reserved during the hearing, are disposed of in accordance with the findings
and conclusions that follow.'
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses as they testified, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
Respondent Company is now, and has been at all times material herein, a corpora-
tion duly organized and existing under and by virtue of the laws of the State
of Illinois. At all times material herein, it has maintained its principal office
and place of business at Chicago, Illinois, and various other facilities in the States
of Maine, Oregon, California, Ohio, Texas, Pennsylvania, Georgia, Kansas, Michi-
gan, New York, South Carolina, North Carolina, Indiana, and Illinois, and is
now, and has been at all times material herein, engaged at said facilities in
the manufacture, sale, and distribution of automotive replacement parts and related
products.
During the year preceding the filing of the complaint herein, the Company,
in the course and conduct of its manufacturing operations, had a gross revenue
of approximately $111 million, of which an amount in excess of $1 million was
received for the direct shipment of finished products to points outside the State
of Illinois. During the same period, Respondent Company, in the course and
conduct of its manufacturing operations, purchased, transferred, and delivered to
its Illinois plants, goods and materials valued in excess of $1 million, which
goods and materials were transported to said plant directly from States of the
United States other than the State of Illinois. Respondent Company is, and at
all times material herein has been, engaged in commerce and its operations affect
and have affected commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE RESPONDENT LABOR ORGANIZATION
Local 453 is a labor organization which admits to membership employees of
the Company.
III. THE UNFAIR LABOR PRACTICES
A. The issue
It is the contention of the General Counsel, in substance, that on or about
January 1, 1963, Local 453, by its demands and insistence, attempted to cause,
and caused, the Company to reduce the departmental seniority of six employees
named in the footnote,2 herein called the discriminatees, because they are Cauca-
sians, which reason the complaint characterizes as arbitrary, irrelevant, invidious,
and unfair, and/or because the discriminatees engaged in union or other protected
activities. The complaint also alleges that the Company, upon the demands or
insistence of Local 453, reduced the departmental seniority of the six discriminatees
for the reasons recited above.
B. The nature of the discrimination; the position taken by Local 453 and the
Company's ultimate acquiescence therein
The events with which we are concerned involve the facilities and operation
of the Company's plant in Harvey, Illinois, which, at all times relevant, was divided
1 During the hearing the allegations of the complaint charging that Respondent Inter-
national had engaged in conduct violative of the Act were dismissed for lack of proof of
an unlawful motive on the part of that Respondent.
2 Hugh McRoberts, Kenneth Morr, Art Cellini, Albert Pompa, Edmund Nowak, and
William Faber.
Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into 14 departments:' .Those departments were not housed under one roof,,however-,
but were scattered among a: substantial number of buildings bearing various
numbers ranging from 1 to 52. One of those departments, known as the central
tool-and-die shop, and manned exclusively by members of the white race, including
the six alleged discriminatees, was established in 1946 in building No. 44. It
remained there, for about 10 years and was then moved, to the easterly third
of building No. 2.3 It was housed in that building until December 1961, when
the shop was moved to building No. 51, a new building approximately 30, feet
from "the main plant," and has since remained there. Upon the transfer of the
shop to building No. 51, both the Company and Local 453 ceased' to regard
the shop as a separate plant and it became a part of the Harvey maintenance
department. -
During the period with which we are concerned, and for more than 10 years
prior thereto, Respondent International and Local 453 have been the collective-bar-
gaining representatives for all of the Company's production and maintenance em-
ployees at its plants in Harvey, Cicero, and Chicago, Illinois. Local 453 is
an Amalgamated Local Union having approximately 3,200 members, and also
represents the employees of other employers. Of its total membership, 52 to 55
percent are Negroes, the remainder being Caucasians and persons of Latin Ameri-
can origin. Its last two presidents were Negroes.
The organizational structure of Local 453 is divided into employer units, ' each
staffed by its own elected officials. One of these units, known as Unit No. 21,
governs the affairs of all the approximately 620 production and maintenance em-
ployees engaged by the Company at its Harvey facilities, including those employed
in the central tool-and-die shop. The membership of Unit 21 was approximately
"50-50" white and Negro. Its chairman is, and since 1948 has been, Octavia
Hawkins, a Negro. In 1961 9 of its 10 officials were Negroes. In 1962 all
its officials were Negroes. Negotiations between the-Company and its employees
at Harvey, Cicero, and Chicago are conducted with representatives of the Interna-
tional, Local 453, and the unit whose employees are involved.
Because the collective-bargaining agreement of December 22, '1960, hereafter
referred to as the 1960 contract, covering the employees at all three of the plants
last aforementioned, was due to expire on December 1, 1961, the parties met
on October 31, 1961, for the purpose of negotiating a successor contract. During
the bargaining conference on that day, or prior thereto, the Unions and Unit
21 were notified by the Company that it proposed to transfer all of its production
facilities from Cicero to the Harvey plant. David Spear, the Company's vice presi-
dent and general manager of the Harvey plant, also informed 'the representatives
of the Unions that the Company was going "to discontinue Central Tool and
Die as a separate plant and . [have it] become a part of the Harvey
plant, . that all the equipment [would] be consolidated into one area" under
the supervision of Ben Reich, superintendent of the Harvey maintenance department.
Throughout the six negotiation sessions that followed between October 31, 1961,
and December 7, 1961, the Company consistently took the position "that both
[the Cicero and central tool and die] groups were being transferred into the
Harvey plant basically within their job classifications with their work, and that
both groups should carry their seniority into the Harvey plant" in accordance
with article III, section 1, of the 1960 agreement between the parties which reads
as follows:
Employees transferred with operations from one plant to another within their
job classification shall carry their plant seniority date to the new plant.4
To facilitate the transfer, the Company, on or about October 31, 1961, submitted
to the Respondent Unions its written "Procedure for Processing Combination of
Cicero and Harvey plants" which specifically provided, inter alia , that "employees
in the Cicero and Central Tool operations [would] be reclassified in their jobs
3 The remainder of building No. 2 was occupied by locker rooms and a cafeteria used by
all employees of the Harvey plant.
Article III, section 1, of the 1960 contract appears to have application only if the
operations are transferred "from one plant to another" and , though the central tool-and-
die shop was in fact always located on Harvey 's premises and part of its plant, the
parties throughout the entire negotiations, consistently, and in accordance with that
article, treated that shop as a separate plant and therefore subject to the provisions of
article III, section 1.
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 489
according to the closest corresponding Harvey job title. They will be allowed
to use their plant seniority within their plants (without and actual bumping
taking place) to acquire status in the revised seniority list."
At this point a definitive statement must be made concerning the seniority prob-
lem. That problem involves departmental seniority only, which is invaluable because
it governs layoffs. On the other hand, no one questions the plantwide seniority
of employees in central tool and die, which seniority is valuable in the area of
vacations, retirement benefits, insurance, etc. With respect to departmental seniority
the positions of the Company and Local 453 were in conflict during the negotia-
tions, as recited below.
During the first several negotiation sessions that followed, Octavia Hawkins,
chairman of Unit 21 and principal spokesman for both Respondent Unions at
all the negotiations, entered no objection to the Company's proposal other than
that the proposed transfer should not be interjected in the negotiations for the
new collective-bargaining agreement in which the parties were then engaged.
On December 1, 1961, the Company transferred the operations and equipment
of central tool and die to the Harvey maintenance department.
On December 7, 1961, the parties reached agreement on a successor contract,
hereafter referred to as the 1961 contract, without, however, agreeing upon the
departmental seniority status of the employees who were involved in the central
tool-and-die transfer. Instead, because the, Company had given assurances that
no termination of the services of these employees was contemplated within the
foreseeable future, it was agreed, on that day, that a resolution of their seniority
status would be held in abeyance, that their names on the seniority list would
be "red circled," and that when "a layoff occurs, [the parties] would have to
reevaluate the situation." On several seniority lists prepared by the Company,
as late as November 1962, the names of the six discriminatees still appeared high,
but "red circled." 5
Insofar as the record discloses, the parties to the negotiations allowed the matter
under consideration to remain at rest until the 1961 contract was about to expire.
During the negotiations between the parties in November and December 1962
for a further collective-bargaining agreement, the subject was again discussed
but without fruition, until December 7, 1962. On that day total accord was reached
on the collective-bargaining agreement for the coming year. With respect to
the move of the central tool-and-die shop and the status of the ex-central employees,
Hawkins summarized Local 453's position as follows: "In this operation, there
was no physical move of the Central Tool and Die operation. The Company
went out of the job shop business . Based on this, these people have
no right of [departmental] seniority under the contract. They have rights under
the contract on the basis of preferential hiring, . . .' pursuant to article III,
section 6, of the contract, quoted at length below.
After further discussion, Spear, manager of the Harvey plant, reluctantly yielded,
saying: "O.K. we'll let you argue it out with your own people. Central tool-and-
die people will have seniority from when they moved into the Harvey maintenance
department, December 1, 1961." 6 The reductions in seniority demanded by Haw-
kins were thereafter interposed on the Company's seniority register, resulting in
the loss of departmental seniority by the six alleged discriminatees in periods
ranging from 15 to 21 years. The ex-Cicero employees, whose operations were
moved to Harvey in the spring of 1962, were all allowed to retain the seniority
they had established at Cicero.
Counsel for Local 453, in his opening statement at the hearing, stated that
it was the Union's position "that the employees at the Central Tool and Die
had not been transferred from one plant to another with their job classification
. within the terms of [section III, article 1] of the contract," a position he
reiterated in its posthearing brief. Instead, Local 453 contends, because the central
tool-and-die employees after, their transfer to the Harvey maintenance department
on or about December 1, 1961, did not perform some of the work in which
s Of the approximately 600 employees listed in order of seniority, McRoberts was No. 7;
Morr and Cellini appeared as Nos 12 and 13, respectively.
6 When Seymour Burrows, the Company's personnel manager who attended all negotia-
tion sessions , was asked "what, if anything , caused the Company to change its position
with respect to whether or not the men from Central Tool and Die should lose their
seniority?" he testified: "This was a small part of the total negotiation. We were involved
in quite a few other things and as in any negotiations , you relinquish some things and
you insist on others , and this at that point in our negotiations was not a matter that
we [were] willing to . . . take a strike on in the context of the total negotiations."
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they engaged prior to that date, that "these employees would have to, have
their seniority date determined in the Harvey Maintenance [department] from De-
cember 1, 1961, the date of their transfer," as prescribed by article III, section
6, of both the 1960 and 1961 contracts. The record, however, is conclusive
that section 6 has no application to the transfer under consideration, and was
never properly invoked with respect to these six employees.
Section 6 has application only with respect to an "employee with plant seniority
who has been laid of} because of lack of work." Here, the central tool-and-die
employees were never laid off and did not lose one hour of work as a result
of their transfer. Indeed, McRoberts, the Charging Party herein, at the time
of central's move was working on a part which he completed in the Harvey
maintenance department immediately after the move.
Though section 6 gives a laid-off employee certain preferential hiring rights
at "other plants of the Company," he must apply for such employment and present
"notice of layoff within 30 days of lay off." Here the central tool-and-die employees
were never given "notice of lay off," nor did any of them make application for
employment in "any other plant of the Company "
In the case of an employee who is entitled to, and exercises his preferen-
tial hiring rights under, section 6, his "seniority in the plant of new hire shall
be acquired after the regular probationary period, and he shall be treated - as
a new employee in that plant." During the 4-week probationary period, section
6 of the contract prescribes that "the Company shall be free to release or discharge
the probationary employee and make its reason available upon request During
this probationary period, neither the Union nor the employee shall have recourse
to the grievance procedure in case of discharge. Until a probationary employee
has acquired seniority, he shall have no reemployment rights in case of lay off."
The ex-central tool-and-die employees never served any probationary period in
Harvey maintenance, nor were they ever informed that their status during the first
4 weeks following their transfer was as insecure as section 6 imposes
The transcript of testimony herein covers 851 pages. A substantial portion
thereof is devoted to testimony concerning (1) the work actually performed by
the central tool-and-die employees both before and after the move to the Harvey
maintenance department, and (2) the discussions at the negotiations between the
parties thereto pertaining to that same subject. A detailed review and analysis
of all the testimony relating to all the foregoing would unduly prolong these
findings. I have, however, carefully reviewed the entire record and conclude, and
find, that it abundantly establishes that the employees transferred from central
tool and die to Harvey maintenance performed the same "operations" before and
after the move within the contemplation and scope of article III, section 1, of
the contract.
Each ex-central employee testified credibly that he did the same work after
the move as he had done in central prior to the move and, insofar as the record
discloses, each continued to receive the same pay. They repaired the same dies,
worked from the same blueprints, made the same parts for dies, continued to
replace broken or worn parts, and did the same type of maintenance work they
did earlier at central. Practically all the machinery and equipment located in
central's quarters was moved to, and thereafter used by, the ex-central employees
in the Harvey maintenance department. Hugh, foreman in central, continued in
the same capacity after the move.
In 1960 and 1961, about 70 percent of the time of the central tool-and-die
employees was spent on maintenance work, repairing dies and replacing their parts,
grinding and repairing broken machines; 30 percent of their time was devoted to
making new tools, jigs, and dies. Since the move to Harvey maintenance, the
ex-central tool-and-die employees continued performing all of the work afore-
mentioned except that, up to the time of the hearing, the Company deemed it more
economical and advisable to have practically all of its new dies made by another
manufacturer. With respect to this phase of their work, the record establishes that
in 1961, central tool-and-die made 14 new dies. In `1962, after - the move, the
ex-central. employees continued to make new tools and jigs, but made only one
new die. During the negotiations, however, it was made clear to the Unions that
the Company.might resume making new dies.
Having found that all the alleged discrithinatees were "employees transferred
with operations"' from central, tool and die to Harvey . maintenance as required
by article III, section 1, of the 1960 contract,7 I further find' that, in substantial
compliance with said section 1, they were also transferred, "within their job
classification." . , . , , .,
7 An identical clause was incorporated in the' 1961 contract.' "' '
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 491
Thus, the classification of Cellini and McRoberts, as tool-and-die makers, re-
mained the same for both men after the transfer, as did Nowak's classification as
tool-machine operator. Faber was classified as a machinist in central tool and die
and remained a machinist in Harvey maintenance . Pompa was classified as a tool-
and-die maker prior to the move and remained in that classification for the first
week after the transfer to Harvey maintenance. At that time, he was called to the
personnel office where, in the presence of Hawkins, Cellini, and McRoberts, he
was told that the number of tool-and-die makers would be reduced from five
to three 8 and that one of these three would have to work on the night shift. Cellini
and McRoberts, having greater seniority, chose the day shift. Pompa was offered
the night shift and, after thinking about it for a couple of days, decided to take
the lower classification as machinist in order to stay on the day shift. Other
than not making new dies, a task in which the Company was no longer engaged,
Pompa continued to engage in the same repair and maintenance work in Harvey
maintenance as he did in central tool and die.
While Morr testified that prior to the move he was classified as a "machinist
welder," the only applicable welder classification found in either the 1960 or 1961
contracts was that of "welder (maintenance)," the classification which he maintained
in the Harvey maintenance department. Though some of the employees from
Cicero were reclassified upon their transfer to Harvey, all of them retained their
seniority.
Here, as the Board concluded in its original decision in Miranda Fuel Company,
Inc., 125 NLRB 454, 455, "[t]he record . .. discloses, and [I] find, that [article
III, section 6] was not by its terms applicable to [the central tool-and-
employees], and thus the reduction in their seniority, though accomplished
under the guise of contractual agreement, was nevertheless not the result of the
Union's performance of a purely ministerial act, but in fact was effectuated through
concession by the Company to a position taken by the Union which, although
purportedly in reliance on the contractual provision, nevertheless was outside the
scope" of that section.
By reason of all the foregoing, I find and conclude that the six alleged discrimi-
natees were "employees transferred with operations from one plant to another within
their job classification [and therefore entitled to] carry their [central tool and
die] seniority date to the [Harvey maintenance department]" as contemplated,
and specifically prescribed, by article III, section 1, of the contract.
Local 453, however, also seeks to justify its resistance to the Company's an-
nounced plan to transfer these employees with their central tool-and-die seniority
on the ground that its request "that the Company show what portion or percentage
of the Central Tool and Die operations was transferred to Harvey was never
met." There is no merit to this contention.
Spear informed the Union's representatives over and over again during the
course of the entire negotiations in both 1961 and 1962, that these employees
would continue to do the same work with the possible, but not certain, exception
of making new dies, as heretofore found. When making these statements, he
was never challenged by any union representative. During the negotiations, the
Company brought in records reflecting "in dollars and hours and percentages"
the work done by the central tool-and-die employees and also furnished the Union
with a "proposed manning table for the Harvey Maintenance Shop."
The position of Local 453 with respect to the aforementioned alleged lack
of information is not only without foundation, but is in sharp contrast to its
position with reference to the right of the Cicero employees to retain their Cicero
seniority upon their transfer to the Harvey plant.
The only testmony offered pertaining to the right of the Cicero employees
to retain their seniority pursuant to article III, section 1, of the contract, was
offered by Wayne Miller, the Local's skilled trade representative on its bargaining
committee during the course of the negotiations. When asked- "what type of
proof was given by the Company to show that the Cicero operations were trans-
ferred over with the operations [sic]," he testified several times that' "the proof
was evident." Insofar as' the record discloses , the only "proof asked for;" with
reference to the approximately 70 Cicero employees who transferred, was their
names, a request which the Company complied with by submitting "a list of
the people who were manning the operation." When asked whether the Union
was "interested in knowing the names of the people who were coming over from
Central Tool and Die," -Miller testified that Local 453 was not interested because
81t will be recalled that the Company was then having its dies made' by an outside
manufacturer. ' ' • •
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
their names "were evident, we all knew what their names were." 9 And, though
he testified that there was further discussion about "the amount of the [Cicero]
operations that was being transferred," there is no intimation in his testimony,
or in that of any other witness at the hearing, that any documentary evidence,
which Local 453 now contends was-demanded and never supplied with respect
to the central tool-and-die employees, was ever demanded by the Union with respect
to the Cicero employees.
This contrast in the treatment of the two groups takes on additional significance
in view of the fact that among the Cicero employees who transferred to Harvey
were two men, John Leonard and Steve Hardy, who transferred from the
Cicero maintenance department to the Harvey maintenance department (Local Un-
ion's Exhibit No. 8). Insofar as the record discloses, not a single inquiry or
request was made of the Company to furnish Local 453 with any information
or records to indicate whether or not article III, section 1, of the contract entitled
these two men to retain their Cicero seniority. Notwithstanding such lack of
interest, Union's Exhibit No. 8 establishes that these two ex-Cicero men, by reason
of their transfer to the Harvey maintenance department, are now numbers 1 and
2 on that department's seniority roster, replacing McRoberts and Cellini in those
slots, and relegating the latter two men to numbers 8 and 9 on that register
This, notwithstanding the fact that McRoberts and Cellini had considerably more
seniority at central tool and die than Leonard and Hardy had in the Cicero mainte-
nance department.
There is also evidence in the record which throws great doubt on the sincerity
of the Union's demand for more information concerning the central tool-and-die
transfer than it was given by the Company at the bargaining conferences. Union
Committeeman Miller testified that since 1951 he has been employed at Harvey
as a "machine repairman." During the course of his employment, he had occasion
to visit the central tool-and-die department and "saw what kind of machines they
ran and what they did." He also testified that he has "been able to observe
the people who used to be in Central Tool and Die since they came over to
Harvey Maintenance," and that they now work on "the same kind of machines
that they were working on at Central Tool and Die." In view of his status
as a skilled trade representative on the Union's negotiation committee,10 the com-
plete absence of testimony by him, either at the bargaining conferences or at
the hearing before me, that the work of the ex-central tool-and-die employees
was different after their transfer to Harvey maintenance, is highly significant.
C. The reason for Local 453's conduct
Having determined that all the discriminatees were entitled to retain in Harvey
maintenance the departmental seniority status they achieved in central tool and
die, as prescribed by the collective-bargaining agreement, we turn next to the
critical contention of the General Counsel that they lost that status for the reasons,
and in the manner, alleged in the complaint.
Negroes constitute between 52 and 55 percent of the membership of Local 453,
and "about 50" percent of the membership of Unit 21 employed at the Harvey
plant. Notwithstanding this proportion between the two races, no Negroes were
ever employed in central tool and die from the time that department was created
in 1946. This gross disparity between the races caused Hawkins and other Negro
members of Unit 21 great concern and generated their deep resentment by reason
of which that department was repeatedly referred to by Hawkins and other Negroes
as the "lily white" shop.
Hawkins testified that early in her reign as chairman of Unit 21, Hillard Ellis,
then engaged as organizer for Local 453, asked her to use her "influence ... to
break through in Central Tool and Die, [the] lily white shop," and that it became
one of the "fundamental principles" of the Union to do whatever could be done
to "bring about a change from this kind [of] situation." 11
In 1949 Ellis, a Negro, then the president of Local 453, discussed union affairs
with Hawkins and recommended that Cellini be brought into the leadership of
9 At one point in his testimony , when Miller was asked "what kind of proof" the
Union wanted with reference to the central tool-and -die employees, he answered: "I had
nothing specific in mind and I don't believe anybody else did."
10 The work of the central tool -and-die employees was classified as skilled trade.
11 Though Hawkins was able to induce the Company in 1956 to engage in a skilled trade
training program , apparently in the hope that it might bring Negroes into the higher
classification , it brought about no change in the staff of central tool and die.
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 493
that organization. Hawkins objected strenuously, stating that Cellini "was no
damn good,", that he was from "the lily white shop, no Negroes there, and
[he wasn't] doing anything about that problem."
In the spring of 1953, prior to the election of union officials, Hawkins and
Ellis attended a union caucus and participated in a discussion to determine whom
the participants in that caucus "were going to support and bring forward for
leadership in the Local Union." Ellis again urged that "more whites" should
be brought into the leadership of Unit 21. Hawkins expressed disagreement with
that view stating, "that they [the whites] were not coming forward and there [was]
no point in putting the round pegs in the square holes." With specific reference
to Cellini, she stated that she "didn't want to hear anything about him," that
he was a white man in central tool and die where there were no Negroes and
that he was not the type of man to become part of the leadership.
In the spring of 1956, Hawkins presided at another meeting to discuss candidates
for an approaching Unit 21 election. During that meeting, when Cellini's name
was raised, Hawkins stated that she could not support him because, inter alia,
he "worked in Central Tool and Die, . . . a lily white plant," and that he had
done nothing "to eliminate the situation."
In February 1958 Ellis and Hawkins attended a "Negro History Week Celebra-
tion" following which Ellis drove Hawkins to her home. During a discussion
between them at that time concerning "problems" that had been called to his
attention there was an incident that involved "a number of southern whites working
in the Cicero plant [who] had been involved in a horseplay act." Hawkins stated
she "would be glad if all those hill billies would get thrown out of the plant." Ellis
protested that "as Negroes, [he and she] couldn't take a position of trying to
say that [they] would be against any particular group." Hawkins stated that
there were "guys right here in Chicago that [were] just as bad," and that
"[his] boy, Celhni, [though] not a hill billy, . [was] still there doing the
same thing in . the lily, white shop, and doing nothing about it." After
further discussion between them, Ellis conceded to her that neither one could con-
vince the other on his or her approach to this racial problem, but that because
she was "in the majority, it would be pretty rough." He concluded the conversation
by accusing her of "certain anti-white feelings, that instead of taking an individual
on [his] merits, she lump[ed] them all in one class ," a view with which he did not
agree.
At a caucus of Local 453's bargaining committee prior to the negotiation
sessions with the Company in November or December 1959, when operations at
central tool and die were under discussion, Hawkins stated that "no certain little
groups [were] going to run the bargaining committee" and specifically referred to
"Cellini and that group of bastards over in Central Tool and Die."
For a number of years prior to 1961 there were competing political factions
within Local 453. Hawkins, chairman of Unit 21 since 1948, has been the undis-
puted leader of one of the factions since that time. Ellis, former president of Local
453, was the leader of the other faction. Some of the employees, under the
leadership of Cellini, were supporters of the Ellis -faction. Ellis, once or twice
during his term as president of Local 453, filed charges with the International
against Hawkins, one of which "led to her expulsion from the Union."
In December 1961, during the contract negotiations, Andrew Garosz, then em-
ployed as a tool-and-die maker in' central tool and die, and the Union's shop
steward in that department, was engaged in a conversation with Alma Settles,
chief union steward for the entire Harvey plant. Garosz inquired how it had
come about that Ed Nowak, the representative of the central tool-and-die employees
on the Union's bargaining committee, was not asked to be present at the next
bargaining meeting with the Company. Settles replied that the "Union decided
Wayne Miller," who was not employed in central -tool and die, was the only
one "that was going to be there" When Garosz complained that he did not
think that was right, Settles, a Negro, replied that the employees in central tool
and die "had nothing to do with [the employees in] the rest of the plant before,"
that they had contributed- nothing to Hawkins' "hearing at the time she had
her trouble with the International Union . . . and that there was no love for
Central Tool and Die because [they] never cared to have anything to do with
the other employees." She also informed him "that Art Cellini didn't testify at
the hearing when [Hawkins] was suspended and that [she] will never forget
that." [Emphasis supplied.]
Cellini also was active in the politics of both Local 453 and Unit 21, having
served as chairman and vice chairman of the Unit, and as a member of the
Local's bargaining committee in 1954, 1956,, and 1961. Three or four times
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the early 1950's and 1961, he was an unsuccessful candidate for Unit
chairman against Hawkins. Cellini always ran with the support of Ellis, and Ellis
always had the support of Cellini, both being in opposition to Hawkins. In
the years Cellini was not a candidate for unit chairman, he supported candidates
who opposed Hawkins.
The charges in this proceeding were filed on February 7, 1963. From a state-
ment by counsel for Local 453 at the opening of the hearing, the ensuing colloquy,
and testimony during the hearing, it appears that on or about March 15, 1963,
the Board's Regional Director advised the Charging Party that he had refused to
issue a complaint based on these charges. It further appears that on appeal from
that ruling, the General Counsel of the Board overruled the Regional Director and
authorized issuance of the complaint presently before me.
On May 19, 1963, prior to the issuance of the complaint, Hawkins called and
presided over a special meeting of Unit 21 to consider "the seniority of the
Central Tool and Die Workers and the overruling of the Labor Board [Director]
by the General Counsel." Hawkins, in addressing the members present at that
meeting, told them that for a period of "100 to 150 years ... [their] forefathers
had been sold as slaves or cattle, like sticks of furniture, . and that Central
Tool and Die was lily white, . even the janitor was white." She then asked
the assembled group, collectively: "Are there any Negroes working at Central
Tool and Die9 . . . Any Puerto Ricans? . . . How about Mexicans?", and paused
for an audience reply after each of these three queries. To each question the
audience answered in loud chorus: "NO." Following her plea that the coming
"trial" would be of great expense, a motion was adopted to have the Union pay
those expenses.12
Having found that the six central tool-and-die employees with whom we are
principally concerned were entitled under the collective-bargaining agreement to re-
tain their earned departmental seniority upon their transfer to Harvey maintenance,
I further find that Local 453 caused the Company to reduce their seniority because
they are Caucasians. The findings on which my conclusions rest are based in
large part on uncontradicted testimony. Where conflict exists, it has been resolved
by the demeanor of the respective witnesses as they testified, and the inherent
probability or improbability of the particular aspect of their testimony, when
weighed against other testimony, which is undisputed.
The record establishes conclusively that the continued existence of central tool
and die from 1946 as a "lily white" shop was the source of great resentment
in Unit 21 and particularly on the part of Hawkins. The reasons why, or how,
this complete disparity in the races came about, or was allowed to continue, were
not disclosed by the record. However, even if it be assumed, arguendo, as Hawkins
apparently assumed, that it came about and was allowed to continue only because
of racial prejudice and discrimination against Negroes , that unfortunate and deplor-
able circumstance is of no avail to Local 453. "Though the [Company] may
have misconducted itself, [that conduct] has a locus poenitentiae." N.L.R.B. v.
Remington Rand, Inc., 94 F. 2d 862, 873 (C.A. 2). "Moreover, one illegality
should not excuse another. The public interest lies in labor peace, and [is] endan-
gered by both. The remedy here was in the filing of charges before the Board
when the claimed illegality came to light, not in illegal self-help. Superior Derrick
Corp. v. N.L.R.B., 273 F. 2d 891, 893 (C.A. 5); Seafarers' International Union,
etc. v N.L.R.B. 364 U.S. 816"; N.L.R.B. v. Plumbers Union of Nassau County,
Local 457 etc. (Bomot Plumbing & Heating), 299 F. 2d 497, 501 (C.A. 2).
Whatever doubts, if any, may once have existed, it is now universally agreed
that the Act imposes on a statutory bargaining agent the duty and responsibility
to "fairly and impartially" represent all the employees for which it is a representa-
tive, without hostile discrimination on the basis of race, color, or creed. The Wallace
Corporation v. N.L.R.B., 323 U.S. 248, 255; Steele v. Louisville and Nashville
R.R. Co., 323 U.S. 192, 202; Tunstall v. Brotherhood of Locomotive Firemen
and Enginemen, 323 US. 210; Syres v. Oil Workers, 350 U.S. 892, reversing
223 F. 2d 739, (C.A. 5). This does not mean, as the Supreme Court pointed
out in the Steele case, that a statutory representative "is barred from making
contracts which may have unfavorable effects on some of the [employees] repre-
sented." Nor does it mean that Local 453 herein was barred from insisting, in
good faith, for a reasonable interpretation of the contract which might or would
result in the loss of departmental seniority by the ex-central tool-and-die em-
ployees. What it does mean, as a majority of the Board concluded in Miranda
12 During the hearing , ruling was reserved on the motion of Local 453 to strike all
testimony pertaining to the meeting of May 19, 1963. The motion is hereby denied.
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 495
Fuel Company, Inc., 140 NLRB 181, 185, is that Section 8(b)(1)(A) and 8(b)(2)
of the Act "prohibits labor organizations, when acting in a statutory representative
capacity, from taking action against any employee . in matters affecting
their employment . . . upon considerations or classifications which are irrelevant,
invidious, or unfair." It is only if Local 453 caused the Company to reduce
the seniority of these employees "in violation of the outstanding contract [and
by conduct] otherwise arbitrary and without legitimate purpose" that it could
be found guilty of violating Section 8 (b) (1) (A) and (2) of the Act and the
Company guilty of violating Section 8 (a) (1) (A) and (3).13
Although divergent views concerning the scope of Section 8 (1,) are held by
members of the Board,14 the judiciary,15 and other legal scholars,1B no useful
purpose would be served by an extensive discussion of the subject by me.
As a Trial Examiner, I must apply Miranda Fuel as Board law unless, and until,
the Supreme Court should decide to the contrary, Insurance Agents' International
Union (The Prudential Insurance Company of America), 119 NLRB 768, reversed
on other grounds, 260 F. 2d 736, and 361 U.S. 477. I note, however, that
the discrimination in Miranda Fuel, supra, was nonracial and, in the view of
the Board's minority, not invidious. I note too that neither the Board nor the
Supreme Court has decided whether a statutory representative's duty under Section
9(a) of the Act not to discriminate racially is accompanied by a Section 7 right
of employees to be free from such invidious discrimination by their statutory
representative. 17 If such right exists (and the Board's majority in Miranda Fuel
is authority for the proposition that it does), the violation of Section 8(b)(1)(A)
in the instant case is clear, regardless of my question concerning the merit of my
8(b) (2) finding which may arise from the majority opinions in N.L.R.B. v. Miranda
Fuel Co., 326 F. 2d 172 (C.A. 2).
Having found that the central tool-and-die employees were entitled under the
contract to retain their departmental seniority upon their transfer to Harvey mainte-
nance I further find that Local 453's insistence that they be deprived of that seniority
under guise of article III, section 6, of the contract was an arbitrary, invidious,
and unfair exercise of its function and power as a statutory representative of
those employees. Local 453 offered no credible, probative evidence, either during
the negotiations or in the hearing before me, to rebut or negate the constant
contention of the Company during the negotiations, or that of the General Counsel
at the hearing, that the transfer under consideration fell within the scope of
article III , section 1 , of the contract.
Nor is there any merit to Local 453's contention that its conduct was justified
because the Company failed to "show what portion or percentage of the Central
Tool and Die operation was transferred to Harvey." Not only was this informa-
tion already in the possession of the Local as has heretofore been pointed
out, but the record establishes conclusively that the Company repeatedly made
it clear during the negotiations that all of those operations were being trans-
ferred. The record fails to disclose that the Company at any time refused to produce
any specific information or record requested by the Union with one possible excep-
tion, a vague request which could only be, and was, construed as a demand
for records of the work performed in central tool and die as long ago as 1946,
when the department was created. Not only was it impossible for the Company
to produce such records because they no longer existed, but, even if available,
their contents would have had no relevance, nor would they have shed any light
' Of. Houston Typographical Union No. 87, eto. (Houston Publishing Company, at al.),
145 NLRB 1657; United States Trucking Corporation, 145 NLRB 225; The New York
Times Company and Publishers' Association of New York City, 144 NLRB 1555.
14 See the majority and dissenting opinions in Miranda Fuel, supra.
13 Upon review of Miranda Fuel by the Court of Appeals for the Second Circuit, 326 F.
2d 172, Judge Medina agreed with the Board's minority, Judge Lumbard found that there
had been no violation of Section 8(.b) (2) and that under the particular facts he need not
reach the 8(b),(1)(A) issue, while Judge Friendly, dissenting, found that there had been
a violation of Section 8(b) (2) and, therefore, that he need not reach the 8(b) (1) (A) issue.
See also Stout V. Construction Laborers Council, 226 F. Supp 673.
16 Cox, "The Duty of Fair Representation," 2 Villanova L. Rev. 151 ; Sovern, "The
N.L.R.A. and Racial Discrimination," 62 Col. L. Rev. 563; Blumrosen, "The Worker and
Three Phases of Unionism," 61 Mich. L. Rev. 1435, 1505; Wellington, "Union Democracy
and Fair Representation: Federal Responsibility in a Federal System," 67 Yale L.J. 1327.
17.See Humphrey v. Moore, 375 U.S. 335, 344, 84 S. Ct. 363, 369, which leaves open the
question whether a breach of the duty of fair representation constitutes an unfair labor
practice under Section 8(b).
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the nature of the operations of that department 15 to 16 years later in 1961
and 1962. And, in considering the sincerity of this defense and the effect that
this alleged failure to produce records had on the negotiations , it should be
kept in mind that the Union apparently had no such interest in the records of
the Cicero operations.
There is other evidence in the record which aids in appraising the sincerity
of the Local's claim that it was only after the Company failed from December
1961 to December 1962 to produce records showing "what portion of percentage
of the Central Tool and Die operation was transferred to Harvey" that the Local
insisted upon the reduction in seniority under consideration. James Smith, recording
secretary of Unit 21, testified that "after the 1961 bargaining sessions when [the]
names were red-circled," a report of the bargaining committee was submitted
to a meeting of the Unit. He further testified that at this meeting, "the conclusion
was reached by the membership, after that report, that these people weren't entitled
to the seniority that they had maintained at the Central Tool and Die plant." When
asked to fix "the month" of that Unit meeting, Smith testified that "it might
have been in January 1962." [Emphasis supplied.]
On the entire record and my observation of the demeanor of Hawkins during
the hearing, I am unhesitatingly convinced and find that she bore great resentment
against the employees in central tool and die, and against Cellini in particular,
because that shop was "lily white," and that she was determined to do-something
about that state of affairs. Indeed, according to her own testimony, since early
in her reign as chairman of Unit 21, which began in 1948 and continued to
the time of the hearing, it became one of the "fundamental principles of [Local
453] . to persuade, . . . if possible," or to do whatever could be done "to
bring about a change from this kind of situation." Persuasive powers apparently
having failed, I am convinced and find that Hawkins, in behalf of Local 453
and as its principal spokesman during the 1961 and 1962 negotiations, seized
upon the central tool-and-die transfer as a subterfuge by which the Local's objective
aforementioned might be achieved.
The record also establishes that Hawkins has otherwise been deeply and actively
involved in the Negroes' demand for racial equality. Commendable as her efforts
surely are, her zeal in that endeavor cannot permit her resort, as a representative
of Local 453, to unfair representation of, and racial discrimination against , whites
which is proscribed by the Act. Here I am convinced that Local 453's insistence
that the employees of the central tool-and-die shop lose their departmental seniority
was based not on a reasonable interpretation and application of the collective-bar-
gaining agreement , but was arbitrarily imposed as retribution for that department's
existence as a "lily white" shop.'8 Such considerations, "based on race alone are
obviously irrelevant and invidious. Congress plainly did not undertake to authorize
the bargaining representative to make such discriminations." Steele v. Louisville
and Nashville R.R. Co., supra.
On the entire record, I find that by insisting in bad faith during its negotiations
with the Company that the central tool-and-die employees lose their departmental
seniority, Local 453 violated Section 8(b)(1)(A) and 8(b)(2) of the Act. I
further find that the Company, by submitting to that demand, albeit unwillingly,
thereby discriminated against these same employees in violation of Section 8 (a)( I)
and 8(a)(3) of the Act. N.L.R.B. v. Star Publishing Co., 97 F. 2d 465.(C.A. 9),
enforcing 4 NLRB 498.
D. The motion to dismiss -
There remains for consideration the motion of Local 453 to dismiss "the charge
herein" on the ground "that Amalgamated Local 453 did not negotiate the contract
in question nor had anything to do with the things and matters about which
the change concerns; so that as a consequence, Unit 21, an autonomous local
union that negotiated the collective-bargaining agreement in question and dealt
with the seniority question involved in the charge, is not a party herein, though
a necessary party." The motion is hereby denied.
Both the 1960 and the 1961 contracts under which the transfer of central tool-
and-die operations was put into effect (General Counsel's Exhibits Nos. 3 and 4),
were entered into, and executed only by, the International UAW and its Amalga-
>e Though union political differences with Cellini may also have played some part in
Hawkins' determination to deprive him of his departmental seniority by means of the
same subterfuge, the record does not justify a finding that such political differences
prompted her action against the other central tool-and-die employees.
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 497
mated Local 453. Unit 21 was not a party to either of those contracts although
members of that Unit participated in the negotiations. There being no suggestion
that either of the contracts was executed without authority to do so, it must
be concluded that both contracts, and all other negotiations conducted in connection
therewith, were negotiated in behalf of Local 453 by its duly authorized representa-
tives, including the representatives from Unit 21.19
General Counsel's Exhibits Nos. 6(a) to 6(1), inclusive, were received in evidence
to reflect the negotiations at the 12 meetings of the parties between October 31,
1961, and December 7, 1962. Only 6 of these 12 Exhibits identify the
persons present thereat. Of these six, five, General Counsel's Exhibits Nos. 6(c),
(e), (f), (j),"and (1) establish that W. Brooks, president, Local 453, and Hawkins,
were two of the representatives "present for the .Union" at those negotiations. Fur-
thermore, both Hawkins and Brooks testified that they attended all the negotiation
sessions, and Local 453's answer admits that both were agents of that Local
and acting in its behalf "at all times material herein."
In support of its position, Local 453 cites the Board's decision in International
Union, United Automobile, Aircraft and Agricultural Implement Workers, et al.
(Maremont Automotive Products, Inc.), 134 NLRB 1337. However, instead of
holding that Unit 21 was an "autonomous union," as Local 453 now contends,
the Board there held "that the Unit 21' negotiating committee and its Chairman,
Hawkins, were the negotiators and agents for both Respondents, Local and Interna-
tional." Indeed, as footnote 2 of the Trial Examiner's Intermediate Report in
that case recites, the parties to that proceeding "stipulated that Unit 21 is not
a labor organization."
IV. THE REMEDY
Having found that Local 453 and the Company have engaged in conduct
violative of the Act, I recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Local 453 having caused the Company to discriminate against the employees
named in footnote 2, supra, I recommend that said Local immediately notify the
Company and those six men, in writing, that it has no objection to their restoration
on the Company's seniority register to the positions occupied thereon prior to
December 7, 1962, or to such higher positions to which each presently may be
entitled if employees of higher seniority have since terminated their employment
with the Company, together with all the rights attached to such restored positions
on the roster.
Respondent Company having discriminated on December 7, 1962, against the
employees designated above. I recommend that it immediately restore each of
those employees to its seniority roster as' recommended immediately above, and
notify them, in writing, that it has done so.
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. Maremont Corporation is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Local 453, International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, AFL-CIO„is a labor organization
within the meaning of the Act.
3. By causing the Company, on or about December 7, 1962, to reduce the-
seniority status of the six employees named in footnote 2, supra, Local 453 has
restrained and coerced employees in the exercise of their rights guaranteed
in Section 7 of the Act, and has caused the Company, to discriminate against
said employees in violation of Section 8(a)(3) of the Act, thereby engaging
in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2)
of the Act.
4. By reducing the seniority of the employees designated above, the Company
violated Section 8(a) (3) and 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The allegations of the complaint that Respondent International Union has
violated Section 8(b)(1)(A) and 8(b)(2) of the Act have not been sustained.
19 See also the earlier discussion pertaining to the organizational structure of Local 453.
770-076-65-vol. 149-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I recommend that:
A. Respondent, Local 453, its officers, agents, representatives, successors, and
assigns, shall:
1. Cease and desist from:
(a) Causing, or attempting to cause, the Respondent Company, for reasons
of color or race, to reduce the seniority of, or to otherwise discriminate against,
the employees named in footnote 2, supra, or any other employee, in violation
of Section 8(a) (3) of the Act.
(b) In any like or related manner, restraining or coercing employees in the
exercise of the rights guaranteed by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Notify the six employees named in footnote 2, supra, and the Respondent
Company, in writing, that it has no objection to their immediate restoration on
the Company's seniority roster to the positions occupied by them prior to Decem-
ber 7, 1962, or to such higher positions to which each presently may be entitled
if employees of higher seniority have since terminated their employment with
the Company, together with all the rights attached to such restored positions
on said roster. -
(b) Post at all its business offices and meeting halls, copies of the attached
notice marked "Appendix A." 20 Copies of said notice, to be furnished by the
Regional Director for Region 13, shall, after being duly signed by an authorized
representative of Local 453, be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted. Reasonable
steps shall be taken to insure that said'-notices are not altered, defaced, or covered
by any other material.
(c) Post at the same places, and under the same conditions as set forth in
2(b) above, as soon as they are forwarded by the Regional Director, copies
of the Respondent Company's attached notice marked "Appendix B."
(d) Mail to the Regional Director for Region 13 signed copies of the attached
notice marked "Appendix A" for posting by Maremont Corporation, at all its
premises in the Chicago metropolitan area in places where notices to employees
are customarily posted. Copies of the notice, to be furnished by the Regional
Director for Region 13, shall, after being duly signed by an authorized representa-
tive of Local 453, be forthwith returned to the Regional Director for such posting. -
(e) Notify the Regional Director for Region 13, in writing, within 20 days
from the date of this Decision, what , steps it has taken to comply herewith.21
B. Respondent Maremont Corporation, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from: -
(a) Reducing, for reasons of color or race, at the instigation of a labor organi-
zation, the seniority of the six emloyees named in footnote 2, supra, or :otherwise
discriminating against them , or any other employee, in violation of Section 8(a) (3)
of the Act.
(b) In any like or related manner interfering - with , restraining , or coercing
its employees in the exercise of their rights guaranteed by Section 7 of the
Act; except ` to the extent that such 'rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment 'as
authorized in Section 8(a) (3) of the'Act.
21 In the event 'that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of 'a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals, Enforcing an Order" for the
words "a Decision and Order." '
21 In the event that this Recommended Order be adopted by the Board, this provision
shalUbeun'iodified to read: "Notify the Regional•Director•for Region 13, in,writing, -within
10 days from the date of this Recommended Order, what stepp,the, Respondents have taken
to comply herewith." - 0-
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 499
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Restore the six employees named in footnote 2, supra, on its seniority roster
to the position occupied thereon by each prior to December 7, 1962, or to which
each presently may be entitled if employees of higher seniority have since terminated
their employment with the Company, together with all the rights attached to
such restored position on that roster.
(b) Post at its premises in the Chicago metropolitan area, copies of the attached
notice marked "Appendix B." 22 Copies of said notice , to be furnished by the
Regional Director for Region 13, shall, after being duly signed by an authorized
representative of the Company, be posted by the Company immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Company to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Post at the same places, and under the same conditions as set forth in
2(b) above, as soon as they are forwarded by the Regional Director, copies
of the Respondent Local 453's attached notice marked "Appendix A."
(d) Mail to the Regional Director for Region 13, signed copies of the attached
notice marked "Appendix B" for posting by Respondent Local 453, at all its business
offices and meeting halls, including all places where notices to members are custom-
arily posted . Copies of said notice , to be furnished by the Regional Director
for Region 13, shall , after being duly signed by an authorized representative
of the Company, be forthwith returned to the Regional Director for such posting.
(e) Notify the Regional Director for Region 13, in writing, within 20 days
from the date of this Decision , what steps it has taken to comply herewith.23
=2 See footnote 20, supra.
- 23 See footnote 21, supra.
APPENDIX A
NOTICE TO ALL MEMBERS OF AMALGAMATED LOCAL 453, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF MAREMONT CORPORATION
Pursuant to the recommended order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause Maremont Corporation to discrimi-
nate against Hugh McRoberts, Kenneth Morr, Art Cellini, Albert Pompa,
Edward Nowak, and William Faber, or any other employee, for reasons of
color or race, to reduce their seniority , or to otherwise discriminate against
them, or any other employee , in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees
in the exercise of their rights guaranteed by Section 7 of the Act, except to
the extent that such rights may be affected by an'agreement requiring member-
ship in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act. -
WE WILL notify the six employees named above and said Company that we
have no objection to the restoration of said six employees to the position.
occupied by them on the Company's seniority roster prior to December 7,
1962, or to such other position to which they may be entitled , together with
all the rights pertaining to that position.
AMALGAMATED LOCAL 453 , INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO,
Labor Organization:
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have, any
question concerning this notice or compliance with its provisions. 1
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT encourage or discourage membership in, or activities on
behalf of, Amalgamated Local 453, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any
other labor organization of our employees, by reducing the seniority of any
of our employees for reasons of race or color pursuant to the request of
said union, or in any other manner discriminating against our employees in
regard to their hire or tenure of employment, or any term or condition of
employment, except to the extent permitted by Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed by Section 7
of the Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
WE WILL restore Hugh McRoberts, Kenneth Morr, Art Cellini, Albert
Pompa, Edward Nowak, and William Faber to the position on our seniority
roster occupied by them prior to December 7, 1962, or to such other position
to which each of them may be entitled, together with all the rights pertaining
to that position.
MAREMONT CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176
West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have
any question concerning this notice or compliance with its provisions.
Leed's Shoe Store, Valley Fair, Inc.; Edison Brothers Stores,
Inc. and Retail Store Employees Union , Local 428, Retail
Clerks International Association , AFL-CIO. Case No. 20-CA-
2847. November 6, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Respondents
filed exceptions to the Trial Examiner's Decision and supporting
briefs, and General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
149 NLRB No. 52.