Local 450, Int'l Union of Electrical, Radio, Etc.

National Labor Relations Board - Board Decisions

Aug 16, 1960

128 N.L.R.B. 682 (N.L.R.B. 1960)

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
too, was restored to employment , is to read in their minds an intent which they did
not make manifest by their acts . The sole purpose served by such telepathy is the
relieving of the Respondent from the consequences of its own unlawful conduct.
Since Respondent had assumed and maintained so uncompromising a position with
respect to its right to discharge the strikers and deny them reinstatement , the strikers
had no immediate recourse other than picketing to voice their protest and seek reem-
ployment . They could not be required to abandon this recourse until its objective
had been attained . I find that the continuance of the picketing entirely compatible
with an expression of willingness to go back to work.
I shall therefore recommend that backpay be computed on a quarterly basis in
accordance with the Woolworth formula from September 28, 1959, until employees
are offered reinstatement or were reemployed , whichever is earlier.
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. Respondent is an employer within the meaning of Section 2(2) of the Act.
2. United Electrical , Radio, and Machine Workers of America, (UE) is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discharging employees for engaging in concerted activity for their mutual
aid or protection the Respondent , violated Section 8(a)(1) of the Act 18 and
by the said discharges the Respondent discriminated against them in regard to hire
and tenure of employment in violation of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
18N.L.it.B. V. J. I. Case Company, supra; Eailaher and Mee, Inc., 87 NLRB 410.
Local 450 of the International Union of Electrical , Radio and
Machine Workers, AFL-CIO [Sperry Gyroscope Company,
Division of Sperry Rand Corporation ] and Mildred M. Britt.
Case No. PCB-2304. August 16,1960
DECISION AND ORDER
On April 22, 1960, Trial Examiner A. Norman Somers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in and was not engaging in any of
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has :delegated its powers in connection with this case. to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
128 NLRB No. 84.
LOCAL 450, INT'L UNION OF ELECTRICAL, RADIO, ETC . 683
the case, and hereby adopts the Trial Examiner's findings,' conclu-
sions, and recommendations.
[The Board dismissed the complaint.]
'The Board does not find It necessary , however, to adopt the Trial Examiner 's char-
acterization of William Dunn.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case was heard by the duly designated Trial Examiner in New York City on
complaint of the General Counsel and answer of Respondent Union. The matter
in issue was whether the Union, in protesting and causing the Employer to rescind
the transfer of Mildred M. Britt to another department, engaged in an unfair labor
practice in violation of Section 8(b) (2) and (1) (A) of the Act. Oral argument was
held some time after transcription of the record.' This was supplemented by letters
between respective counsel and the Trial Examiner relating to certain phases of the
merits. These, by recent order, have been included in the record with appropriate
exhibit designations.
Upon the entire record (as corrected on consent of the parties), and upon my ob-
servation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer, Sperry Gyroscope Company, Division of Sperry Rand Corpora-
tion, is an unincorporated division of the Sperry Rand Corporation of Delaware.
At its principal plant in Great Neck, Long Island, it is engaged in developing and
manufacturing electronic precision weapons and scientific instruments, along with
related electronic equipment. The Employer's interstate involvements run into the
millions, and the jurisdiction of the Board over this proceeding is uncontested.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act. It is the ex-
clusive bargaining representative of the approximately 7,500 hourly paid employees
of the Employer at the Great Neck plant, and has a contract with the Employer em-
bracing that unit of employees.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The central issue
The Employer, at the request of Mildred M. Britt, an officer of the Union, trans-
ferred her to another department. It rescinded this action after the Union protested
and the Employer acknowledged that it had taken the earlier action without "notifi-
cation to and discusion with the [Union]" as the contract required in the case of the
transfer of any union officer from one department to another. The General Counsel
does not dispute the validity of this contractual restriction upon a union officer's
departmental transfer. But he predicates liability upon the alleged bad faith of the
Union in asserting its contractual rights.
B. The evidence
(1)
The evidence advanced by the General Counsel was entirely circumstantial. We
were led through a winding trail into the Union's inner councils. Exposed to our
scrutiny were meetings of the Union's executive board and general steward's council.
'This procedure of oral argument superseded the Intended filing of briefs after Re-
spondent's counsel, Melvin Warshaw, who ably tried the case, was stricken by illness.
The oral presentation on behalf of Respondent was made by his partner, Everett Lewis,
who had no prior participation In the case. Completing the saga of infirmity which
flesh Is heir to was the protracted Incapacitation, after surgery, of the Trial Examiner.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We were taken also into the deliberations and caucus meetings of "political parties"
within the union membership. All of this came in over Respondent counsel's objec-
tions, in deference to the claim that from it would emerge a showing that Britt op-
posed the policies of the Union or of certain of its officers, that she incurred their
hostility because of it, and that the Union's protest of her transfer had as its motive
reprisal for her alleged opposition to its policies and not the furtherance of the
Union's legitimate interests under the contract.
The General Counsel's skeleton of theory never took on the flesh of reality. The
case consists of a series of disconnected items, which, singly or in combination, fail
rationally to add up to what is claimed for them.2
(2)
The first item in the General Counsel's projection is a conversation claimed by
Britt to have been held in June 1957 between herself as a union official and John
Sarle, the Union's president. Britt then held two offices in the Union. She was an
"area representative," and secretary of the shop committee. Each office deals with
handling of grievances. As area representative, she was the chief steward for about
500 inspectors throughout the plant (the term "area," in this instance, having an
occupational, rather than a geographical, connotation). The shop committee is the
body in charge of the actual processing of grievances. The June incident, as nar-
rated by Britt, was one in which she was reporting to Sarle on matters on the agenda
of the shop committee. According to Britt, when she came to a certain grievance,
Sarle said he had spoken to management about it, and she asked whether he should
not have consulted the shop committee first, and Sarle retorted, "I am the president,
I can do anything I want." Sarle did not testify and Harold Seiden, a member of
the shop committee, whom Britt named as having been present at the conversation,
could not recall it. Britt's asserted conversation with Sarle apparently made as
little impression on her at the time as on anyone else. She could not name or other-
wise identify the employee involved, and there is no indication that this incident had
any kind of followup. So far as appears, neither Sarle, Britt, nor anyone else ever
spoke about or alluded to it in any form. One would thus be hard put to it to find
that this incident, if it occurred, played a part in anything else that happened in this
case.
(3)
The General Counsel's attempted linkage of this alleged conversation with the re-
mainder of the record would appear to be in a conversation between Sarle and Britt
about 4 months later, in October 1957. This time Sarle spoke to Britt not as presi-
dent of the Union but as titular leader of the "political party" of which Sarle and
Britt were members.
The above requires us to digress for an explanation. The offices of the Union,
from president down to a mere steward, are filled in the general election which takes
place every December for the year to follow. Within this electorate of about 7,500
employees or members emerge groupings or factions, having their genesis in rivalry
over policies, personal aspirations, or congeniality, or whatever else may account for
human association. These take on characteristics of political parties. Indeed, they
are identified as such, and, in the annual election, they put up slates of candidates
under such designations as "United Independents Party," "Aggressive Coalition
Party," "Ability, Benefits, Experience Party," and the like. The one to which Britt
and Sarle belonged was the United Independents. It had been swept into power in
the annual election of December 1956, when, with its backing, Britt and Sarle had
been elected to the offices they were occupying in 1957.3
In October 1957, the United Independents was considering a prospective slate
for the forthcoming election , and Sarle was consulting the various union officials
who belonged to that party about their wishes for the coming year. Britt said she
7 No criticism of the General Counsel's representatives is here intended or implied To
the contrary , they presented with rare skill and utmost grace a case which fell to their
lot after reversal of the Regional Director's initial dismissal of the charge In fairness to
the reversers , it should be said that the elements most fatal to Britt's claim seemingly
first came to light during the hearing
s For its bearing on a later phase , a slight qualification should here be noted. Of
Britt's two offices, that of "area representative" was an elective one, for which she was
chosen in the general election in December. On the other hand, her other office, that of
secretary of the shop committee , was one for which the selection is made not at the
general election, but by the newly inaugurated executive committee in January. (The
shop committee members , on the other hand, are elected in the annual general election.)
LOCAL 450, INT'L UNION OF ELECTRICAL, RADIO, ETC. 685
wanted to continue in the two offices she was then holding. Sarle suggested she run
for one office, explaining, as Britt put it, that he had "other talent on the floor" that
he wanted to "develop" and, as Shop Committee Member Seiden put it in his
version, that the two offices were more than one person could handle with justice
to both. If a choice had to be made between the two versions, it would be Seiden's
because (apart from their respective performances as witnesses, to be later alluded
to) it has stronger corroboration in the record? However, since the two reasons
are not mutually contradictory but would seem rather to complement each other, it
is a fair synthesis of the two versions that Sarle put it on both grounds. These
grounds are so manifestly related to the welfare of the organization, that it would
seem woefully strained to impugn the speaker's sincerity. At least it makes it diffi-
cult to understand how one could rationally read into Sarle's suggestions a personal
animus against Britt arising out of the alleged conversation of June. The objective
character of Sarle's motivation would appear to be underscored by the fact that
as Seiden credibly testified, Sarle then offered Britt her choice of running for any one
of three offices-that of area representative, or secretary of the shop committee, or
even a member of the shop committee.
Britt responded in no uncertain terms (or muted tones) that she wanted to be
named for the two offices she was holding. So far as appears, she had her way. In
December 1957, she ran for and was reelected as area representative, and (to tele-
scope our narrative) in January 1958, at a caucus meeting of the United Indepen-
dents, a slate of proposed officers of the shop committee was agreed upon for that
year, which included Britt as secretary. It happens that later that month, after the
person proposed for chairman of the shop committee declined the designation, her
party held a second caucus meeting in which a new slate was proposed, which did
not include (Britt. When the executive board of the Union met to select the offices
of the shop committee for 1958, Britt proposed herself as secretary in opposition
to her party's designee and was defeated, so that for 1958 she held but the single
office of area representative. All of this took place in the course of the regular
deliberations first, of Britt's party, and then, of the executive board. There is no
indication that either action reflected other than these respective bodies' views of
what was best for the organization. In any event there is nothing to overcome the
presumption that this was so or that it was inspired by animus toward Britt born
of any claimed opposition on Britt's part to union policy. Nor, as later indicated,
did she incur hostility for running against the nominee of her party.
(4)
An incident at the end of December 1957 or very early in January 1958 seems to
be relied on by the General Counsel as indicating first, that Britt opposed "union
policy and administration ," and second, that she incurred the hostility of union
officers in her party because of it.
The matter concerned the reimbursement by the Union of William Dunn, a
member of the shop committee, for time spent on union activity during the last week
of 1957. By way of explanation, the office of member of the shop committee, like
that of its chairman and secretary, is one to which is allotted the entire working
time of the incumbent. The working time thus devoted is variously called "union
activity time" or "lost time." For it, the officer is reimbursed at the same hourly rate
as at his job with the Employer. The reimbursement is made by the Union, except
that under the contract the Company contributes payment for up to 190 hours
each week of the aggregate "lost" time of the shop committee members as a group.
The Union pays the remainder. The mode of apportioning these 190 hours among
11 Seiden testified that certain stewards were aggrieved over the service they were receiv-
ing from area representatives. Harry Hickey, a steward in Britt's constituency, who
was called by the General Counsel as a witness friendly to Britt, revealed he was one of
them He testified that in 1957, when Britt held two offices, he received inadequate
service from her as area representative, but that in 1958, when she held only that one
office, the situation was much improved (He testified that in 1957 he was also dis-
satisfied with the character of Seiden's service as member of the shop committee. This
too would appear to have been a byproduct of Britt's inability, because of her duties as
secretary of the shop committee, to service all portions of her far-flung constituency as
area representative. This had its impact on Seiden. As shop committee member, he
was elected from and served the same constituency as Britt In those locations which
Britt could not service, Selden doubled as shop committee member and area representa-
tive, thereby, inferentially, spreading himself thin (if Seiden's burly frame can lend itself
to that description). It should be stated, however, that throughout all of this Seiden,
who had a great respect for Britt's abilities, supported her in her quest for both offices )
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the various members of the shop committee is a matter for the discretion of the
Union. But it is at once apparent that the apportionment which is most economical
to the Union is one which allocates to the Company reimbursement for the lost time
of the members who have the highest paying jobs with the Employer, and allots to
the Union reimbursement for the lost time of the members receiving the lowest pay.
Dunn's hourly rate was the lowest among the members of the shop committee.
Hence, the major portion of his 40 hours of lost time each week was borne by the
Union. The Union paid for 30 hours of it, and the Company 10 hours, the purpose
of this small allotment to the Company being to take care of certain necessary pay-
roll deductions.
The respective payments by the Union and the Employer to the members of the
shop committee were made in accordance with vouchers submitted to each by the
secretary of the committee. This, as will be recalled, was the second of the two
offices held by Britt in 1957. On Monday or Tuesday of each week, Britt, as secre-
tary, would prepare vouchers for the prior week's lost time of the members of the
shop committee and submit them to the Union and Company, respectively. Those
submitted to the Union would be approved and countersigned, first by one of the
trustees and then by the treasurer, and turned over to the chief trustee. The chief
trustee would then have checks for each of the members printed up in the respective
amounts approved on the vouchers, procure the signatures of the president and the
treasurer to the checks, and then forward them to the secretary of the shop com-
mittee for distribution among the respective members. The Company would pay
the portions representing its allotment to each member directly, according to the
voucher submitted to it. The members normally received their two sets of checks
from the Union and the Company, respectively, by Friday of the week in which
the vouchers were submitted.
The Dunn incident concerns the payment for his lost time for the week ending
December 29, 1957.5 On the following Tuesday, December 31, the union head-
quarters received from Britt vouchers for the lost time of the various shop com-
mittee members as charged to the Union. Dunn, who for reasons later appearing,
was concerned about whether Britt had submitted a union voucher for him, and
called union headquarters and inquired about it of Frank Trivigno, the chief trustee.
There was a union voucher for every member of the shop committee except Dunn.
This seemed strange, since the regular practice, as indicated, was to send the Union
a voucher for all but 10 hours of Dunn's lost time for each week. For this par-
ticular week, Britt, without telling Trivigno or Dunn, charged all of Dunn's lost
time to the Company. If such allotment was to be made for any member, Dunn
was the last for whom it would be expected because, as previously noted, he (along
with one other member) was the lowest paid employee serving on the shop com-
mittee, and thus it was in the Union's interest to have the major share of Dunn's
lost time charged to it instead of the Company.6
S That day was a Sunday, which, for payroll purposes, seems to be the last day of the
workweek
6 The anomaly in Britt's singling out Dunn in the manner she did appears from the
table below. It shows how the lost time for each of the members of the shop committee
for the last week of December 1957 was apportioned as between the Union and the
Company (source: General Counsel's Exhibits Nos. 2 and 10; Trial Examiner's Exhibit
No. 4). As appears, there was some allotment to the Union, and hence a union voucher
was sent for some part of the lost time of every shop committee member from the
highest to the lowest paid, except Dunn. It will be noted that the lost time of the
other lower-paid members, such as Park, Gangale, and Fox, above the customary 10
hours allotted to the Company, was charged to the Union.
TABLE -Apportionment of lost time of shop committee members for week ending
December 29, 1957, as between Union and Company
Rate per
Member hour
Hours charged
to Union
Hours charged
to Company
Total hours
of lost time
Murray Gentile______ $2 93 14 13 9 27.9
Walter Sh^anley ------ 264 57 22 277
Mildred Britt________ 2.49 20 7.8 278
Harold Seiden_______ 2.49 18 9.7 27.7
W. Pennell__________ 2.49 4.8 22 9 27.7
Frank Cucinotta_____ 2.44 65 21.2 27.7
George Park_________ 2 41 18 97 27.7
Dom Gangale________ 2.25 179 10 279
H. Fox_____________ 2 18 18 9.7 277
William Dunn_______ 2.18 0 23 23
LOCAL 450, INT'L UNTION' OF ELECTRICAL , RADIO , ETC. 687
At all events , Trivigno , deeming the absence of any voucher for Dunn rather
"funny," as he put it, and being about to depart with vouchers for the purpose of
having the checks based thereon printed up, he authorized Dunn to prepare a union
voucher for the customary 30'hours of his lost time as charged weekly to the Union.?
It was understood , however, that if Dunn should be paid for his ' lost time by the
Employer, he would notify the Union, and the check would be voided . That, `indeed,
is what happened . After the vouchers were cleared under the process previously
described , the checks were printed up, and after being signed by the president and
the treasurer , were forwarded by Trivigno to Britt for distribution among the re-
spective shop committee members. Dunn was interveningly paid by the Company
for all of his lost time in accordance with the voucher submitted to it by Britt.
Dunn notified union headquarters of that fact , and Trivigno then asked Britt to
return Dunn 's check so that it could be voided. Britt did so but not after she was
heard from as described below.
Britt's reaction , when she saw the check for Dunn, was antagonistic and accusatory
beyond what the situation rationally called for. The explanation that it was occa-
sioned by her own singular failure to submit a customary voucher for him failed
to placate her. She accused Trivigno of exceeding his authority , which was not the
fact.8 She accused Dunn of forgery , which was likewise not the fact , since Dunn
had followed the customary procedure , when an officer other than Britt prepares a
voucher, of writing Britt's name in his own handwriting and putting his initials
underneath . ( See supra, footnote 8.) She accused him of trying to receive double
pay, which was rather a harsh judgment , since the singular omission of a union
voucher for him for that week made eminently reasonable his explanation to her
that he thought she had "forgotten" to send one for him.
The violence of Britt's reaction was rather puzzling, since in the absence of some
particular interest in Dunn , the emergency measure taken by him and Trivigno in
the given situation would have seemed quite reasonable . At least , the situation
was one which at worst would normally evoke a challenge of Trivigno 's and Dunn's
judgment but hardly imputations of larcenous intent.
Britt's failure to make allowances for,her own unusual action in singling out Dunn
as the person for whom no union voucher was submitted ( supra, footnote 6), apart
from suggesting a special animus against Dunn , raised a question of why she should
thus have singled Dunn out at all. She gave no explanation that made sense. She
at first relied on the authority vested in her to apportion the members ' lost time as
between the Union and the Company . This was pure evasion, since the question
was not what authority she possessed , but how she came to exercise it in the singular
manner she did. She then asserted such an allotment was not unusual and that
she had on various weeks before this allotted all the lost time of Dunn to the
Company. She could not support this statement . She then backwatered and said
it was only I week. It turned out that she was distorting a situation which arose
in the summer, during a week when all but six of the shop committee members
were on vacation . The total lost time for the six nonvacationing members for that
week was 240 hours (6x40). During that week, the Company 's contribution under
the contract was raised an additional 40 hours above the standard 190 (20 hours
apiece for each of two other top union officials, who were also on vacation). This
aggregate contribution of 230 hours made it possible to charge to the Company all
but 10 hours of the entire lost time of all six nonvacationing members of the shop
committee , including Dunn . Manifestly , no such situation existed during the week
of December 29 in question, when all the shop committee members were on the
job (supra, footnote 6). Finally, Britt said that she made allotments to accommo-
date the wishes expressed by the individual members of the shop committee. But
concededly Dunn had never asked her to make any change in the customary appor-
tionment for him , nor had she ever told him she was doing so.
Britt's capricious conduct in regard to Dunn achieved a comprehensible motiva-
tion when she was asked about her personal relations with him. She insisted at first
I I It happens that for this particular week this was 7 hours too many. The reason is
that the week ending December 29 included Christmas. During that week every em-
ployee received a 12-hour holiday with pay. This reduced the actual workweek to 28
hours (See table in preceding footnote.) Dunn had taken 5 hours off, so that his
total "lost" time for that week came to 23 hours.
8 During Britt's unavailability or in unusual situations officers could and did prepare
vouchers for reimbursement of shop committee members. Member Seiden had done
it, as had also Walter Volckening, the vice president, and Boeckler, a trustee The
customary manner was for the officer to write Britt' s name and his own initials
underneath.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they did not extend beyond their official relation as coworkers. Then, inch by
reluctant inch, she admitted it went farther-first that he had borrowed money from
her, then that he went to her apartment to borrow money, and finally that this
relationship terminated several weeks before the crucial week in December here
considered. One hardly needed the credible testimony of Seiden and Dunn to be
satisfied that there was an emotional involvement between Britt and Dunn, which
terminated in a manner most painful and frustrating to Britt. When the termination
took place, Britt reported in. sick, a matter which caused deep concern to Seiden,
who was friendly to both Britt and Dunn, and impelled him to call on her. She
showed signs of having taken the breach very hard, and she gave vent to embittered
utterances concerning Dunn, mentioning his ingratitude for all her favors to him,
including loans of money, and her sponsoring him to his present political eminence
in the Union. She vowed that just as she had made him politically, so would she
break him.9
Dunn testified Britt made a similar threat to him when he broke off their rela-
tionship and also that she threatened to see that he did not get paid. Dunn, an
obvious second rater, who exhibited a smirking relish of his role as the Lothario
in the drama, had a slight tendency to overstatement and was inaccurate in one
detail.iO However, his actions from the time he and Britt broke off to the time of
the voucher incident were those of a person who was apprehensive about whether
he would receive pay for his lost time. On 2 successive weeks before this incident,
Dunn called at union headquarters to inquire whether Britt had sent a voucher
in for him, and as it happened, on these previous occasions she had done so. How-
ever, when there was none for him for the week in question, he immediately related
it to their strained relationship. This would lend credence to his testimony that
Britt, in anger, did indicate that she would use her powers to embarrass him in
whatever way she could. It is difficult to avoid the impression that in singling Dunn
out as she did that week in question, Britt acted out of spite. It may well be That
her motive was not to entrap him, but merely to give him an anxious moment
over whether he would be paid that week, or, perhaps to have him come to her,
begging for his voucher. It would seem manifest, however, that once Dunn
at Chief Trustee Trivigno's suggestion, acted as he did to meet the discomforting
situation she contrived for him, she seized upon it as a means of trying to bring
him into disrepute. Indeed, when she received Dunn's check for distribution, she
went excitedly to Seiden, saying, "I have got it on him now, I have something I can
tell his people about what a bum he is and he is not to be trusted."
Nothing in Britt's actions shows any conflict between her and union officials on
policy. This was a purely personal vendetta with Dunn, and it hardly rises to the
dimensions of protected "concerted" activity. Cf. N.L.R.B. v. Joanna Cotton
Mills, 176 F. 2d 749, 752-753 (C.A. 4).11
The issue of law apart, in point of actual fact, would seem to be the singular
insulation of that incident from the stream of subsequent events. Surely, if this
was held against her, the time when it would have been manifest would be the first
caucus meeting of her political party, which occurred shortly thereafter. Yet at
that caucus, as already related, Britt was named on the slate for a second term
as secretary of the shop committee. True, at the next caucus meeting (which, as
e Seiden's version, on which the above is based, was utterly sincere and is strengthened
by the unwitting corroboration given it by Britt She admitted Seiden's visit, but when
asked to state her version, contributed nothing except a denial that on the occasion of
Seiden's visit, she was dressed in a kimono and had her hair up, a matter most inci-
dentally alluded to by Seiden, who manifested a deep solicitude and respect for Britt
Further efforts to elicit the substance of their talk produced nothing more than that
Seiden, as she asserted, said he had heard that Dunn was going to be married. But
even this grudging fragment corroborates Seiden, since it indicated a mutually assumed
premise of a special interest on Britt's part in Dunn
10 He testified Britt repeatedly threatened him with political reprisal through
February, March, and April, when in fact she had been out sick from mid-February to
the beginning of April. He corrected his testimony when reminded of the 6 weeks'
hiatus.
u'Dhe late Chief Judge Parker, speaking for a unanimous court there said:
It is clear . that to be protected, the purpose of the concerted activities must
be the mutual aid or protection of the employees; and it is equally clear that the
circulation and presentation of the petitions here involved was for no such purpose,
but was nothing more nor less than an effort on the part of Blakely to vent his
spleen upon a supervisory employee whose rebuke in the perfoimance of duty had
angered him [Emphasis supplied.]
LOCAL 450, INT'L UNION OF ELECTRICAL, RADIO, ETC. 689
previously mentioned , was occasioned by the fact that the person slated for the
chairmanship of the shop committee declined the nomination ) the entire slate was
reopened, and then, despite Seiden's loyal support, she failed of nomination. It
would seem rather farfetched to say that the decision, thus arrived at by the mem-
bers of her party, had an element of reprisal. The same can be said of the executive
board's choice of another to serve as secretary of the shop committee in 1958.
Even if the Dunn incident entered into that body's deliberation, I would hardly
see that it reflected an animus against her rather than an appraisal of her capacity
to keep purely personal antagonisms out of her discharge of the duties of that
office. However, there is no evidence of what was in the mind of the members
of the executive board when they made their selection, and there would hardly
seem to be any basis for impugning the distinterestedness of the choice.
Nor is there any warrant for the conjecture that Britt antagonized the officers
who were members of the United Independents by proposing herself as secretary
of the shop committee in opposition to that party's caucus nominee. Seiden was
also a member of that party, yet he supported Britt's candidacy at the executive
board meeting against the party's designee. He credibly testified this was not
looked on askance, because a slate of nominees for office to be filled by the executive
board does not obligate a participant in the caucus in the same manner as would
a slate of candidates in the general election.
(5)
A careful search of the record discloses no evidence, so far as I can discern, of
antagonism toward Britt on the part of the union officers preceding the crucial
transfer here in issue. And none has been pointed out to me. Such antagonism
as existed would seem to have stemmed only from Britt. Thus, beginning in Febru-
ary 1958 when Britt, having failed of reelection as secretary of the shop committee,
now held the one office of area representative, President Sarle invited her, through
Shop Committee Member Seiden, to attend the caucus meetings of the United
Independents. She declined. Again through Seiden, Sarle inquired of Britt whether
she still supported their party. Her reply was that it was none "of Sarle's business
where I stood from then on."
Indeed, on Britt's admission, she took the initiative in avoiding all contact with
the top officers of the Union, except when in her capacity of area representative,
she "had to go to them." Nothing in the -record tends to show that this aroused
hostility toward Britt, and while the General Counsel does not in so many words
articulate it, the implicit premise which underlies his contrary postion would seem
to be (as it logically must) that Britt could hardly have been as ungracious as she
was without incurring the enmity of the targets of her antagonism.
Putting aside the question of whether one can validly rely on his own acts of
provocation as proof, without more, that he has thereby incurred ill will of his vic-
tim, such matters as the General Counsel relied on in confirmation of even this
theory of presumptive alienation disintegrated when tested against objective fact.
Thus, the General Counsel bore down on the claim that for the 4 weeks beginning
in April 1958, when Britt went back to work after her illness (supra, footnote 10),
to the end of the month, when her transfer took place, the Union made little or
no use of her services during working time. By way of explanation, the office of
area representative does not have any working time allotted to it, as does that of
secretary (or member) of the shop committee. So, when Britt's tenure as secretary
of the shop committee ceased, she went back to her work place. From then on,
the tab for any working time devoted by her to the union activity would be picked
up solely by the Union, and the time so expended would have to be on some identi-
fiable union business.
Britt's claim-and the General Counsel's-was that up to the time of her transfer
on April 30, the Union had called for little or no services on her part during working
hours. Britt testified that in the month preceding the incident of the transfer, she
was hardly ever used for participation in grievance matters, at "most five hours a
week," as she put it. While it may be doubted if that would be evidence of hostility
to her even if true, it was demonstrated to be untrue. The records of the Union
show that she was used at least 18 hours, and, on the average, over 26 hours a
week, more than half her working time.
The other particulars would seem hardly worth detailing. In all instances where
she was concerned, Britt exhibited aberrations of memory or perspective, making it
difficult to rely on her testimony. For example, she claimed, as another manifesta-
tion of hostility to her, that whereas, in the past as area representative, she had
distributed job-bidding information among the employees on working time, since
February, Seiden was distributing it on the orders of Walter Voickening, vice
690 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president of the Union. Indeed, an order has been issued forbidding area repre-
sentatives to devote working time on union activity other than as specifically
authorized by the vice president. This, too, is claimed to have had Britt as a,
target. The explanation given by the, Union would hardly have seemed necessary:
the compensation for the working time which Britt would have lost on union
activity would have been an added drain on its treasury; hence, where a chore,
such as distributing job-bidding information, could be handled by one such as
Seiden, whose office required the allotment of his entire working time to union
activity, it would be natural to have it handled by him instead of one who would have
to be specifically compensated for it, like Britt. Also, it would have seemed natural
to centralize control over the amounts to be expended by the Union for reimbursed
time through the vice president, since as the "building chairman," that officer had
administrative responsibility for all union activity in the plant. Volckening testi-
fied that such control had become a dire necessity, indeed it was demanded by the
International because Respondent had been running in the red.
(6)
The above, as far as appears, is all we have on the subject of Britt's "opposition"
to union policy and the Union's "hostility" to her up to the time of the trans-
fer on April 30, to which we come now.
As previously stated, Britt, after her year's absence from the workbench as
secretary of the shop committee, returned to her old department. This was depart-
ment 4353 incoming inspection, air armaments division. For the previous 6 or 7
years, her job was that of "Inspector of Assembly A." In the parlance of the
plant, inspector of assembly denoted her "job title," and "A" her classification or
grade in it-the highest in her job title. When Britt returned to her department,
it had run out of "A" assembly inspection work, and so she was doing simpler "C';
and "D" inspection, but at the rate of pay of an "A" inspector, without impairment
of her seniority in that grade. As Britt told it, she was dissatisfied with this because
of her concern over developing her skills in grade A. As Seiden, who was then still
friendly with her, told it, Britt, who had enjoyed her year of absence from the
workbench during her tenure as shop committee secretary, was exceedingly restless
when she returned to her job and wanted more than ever to return to grievance
negotiating, for which she had both an aptitude and fondness. Which it was one
can only judge from the objective circumstances: she was bitter over not having
been selected for a second term as secretary of the shop committee, which would
have kept her from the workbench for still another year. She was unhappy in the
belief-indeed, as already appears, she advanced this as an indication that the
Union loved her not-that she was not called away from the workbench often
enough on union activity. And, to telescope our story a bit, at the end of 1958, she
ran against Seiden for the office of member of the shop committee, which, had she
succeeded, would have taken her away from the workbench for yet another year.
At any rate, Britt looked around fora department where she could do "A"
assembly inspection. She found it in department 4360, APN 59 products area.
On April 29, 1958, she applied for a transfer to it. On April 30 she was transferred
to it after clearance from her foreman in department 4353.
As is to be gleaned from the introductory portion of our discussion, one who
chooses to hold an office in the Union submits to certain restrictions of which he
would be free if he were content to be a rank-and-file employee. Indeed, the con-
tract between the Union and the Company has an entire section regulating the
transfer of its officers-article 9 E. Of its six subdivisions, those directly pertinent
are the first and last, which read:
1. No transfer of any official Union representative from one department to
another, or from one shift to another, whether at the request of either party,
shall be made without notification to and discussion with the other party.
6. No Union official shall be transferred except in accordance with the
provisions of this Paragraph E while work exists in his job title within his
department.i2
"The entire contract is in evidence . In the interest of economy of space, I have not
quoted subdivisions 3, 4, and 5, because they deal with bids for "upgrading" and
"advancement," as opposed to a mere transfer at the same level . Subdivision 2 deals
with a transfer in department when requested by the Union , which is likewise not
involved here, directly at least. However , it does indicate a mutual recognition by the
LOCAL 450, INT'L UNION OF ELECTRICAL , RADIO, ETC. 691
There was work in department 4353 for Britt in her "job title" as inspector of
assembly, within the meaning of the sixth subdivision , though not in her A grade.
This made applicable the requirement in the first subdivision that her transfer be
preceded by "notification and discussion with [the Union]."
The sad fact is that Britt's transfer took place without such prior notification and
discussion . Britt did not tell her fellow officers in the Union about it. Nor did
management . Edgar Williams, the placement representative in the manpower
coordinator 's office, who first received Britt's request for a transfer to department
4360 , APN 59 products area, informed Britt she would have to take her request for
a transfer up directly with her immediate supervisor , since his own office did not
"handle transfers within a division ." Britt's immediate superior was T . J. Donovan,
and it was he who cleared her transfer . When he did so, he informed Williams,
who thereupon expressed to Donovan the "hope that he had contacted the union
in regard to the transfer ," which Donovan had not in fact done. Indeed, Walter
Volckening, vice president of the Union, who as "building chairman " was in charge
of the entire steward system throughout the plant, and the one to be consulted
about such a transfer , learned about it on May 1, the day after it took place-and
quite accidentally . He called Britt on union business at department 4353, only
to be told that Britt had gone to "Jupiter" ( a project embraced by the department
to which she had been transferred and to which she was due to be assigned after
a brief, preliminary hitch in another part of that department ). His irreverent
outburst , "Where the hell is Jupiter," was followed by an effort to find out how
the transfer came about without his advance knowledge . No one could tell him,
and he finally reached Matthew Flood , the employee relations supervisor . Volck-
ening bitterly complained to Flood of his not having been consulted about the
transfer , as the contract required , and demanded that the Company rescind its
action. The transfer had not yet been entered in that department 's books, indeed,
the record of it had not yet arrived , so Flood said he would look into it. Flood
inquired of Foreman Donovan , who, as previously mentioned , had cleared Britt's
transfer . The latter said he had given the clearance because his department had
run out of A assembly inspection work, but admitted he had not notified the Union
of the transfer . Acknowledging that the Company had erred , Flood, on May 2,
ordered that Britt be sent back to department 4353.
Flood admitted that it would have served the Company 's "immediate con-
venience" to have retained Britt in a department in which there was work at her
own grade . But he testified he had to weight this against the Company 's "higher
level of convenience" in avoiding being vulnerable on the score of not living up to
its contract . "Walter Volckening," he testified , "had played things straight to me
and me with him, and I wouldn 't want it said that I pulled an around the corner
deal with the guy. Concededly , I hadn't discussed the matter with him." He
accordingly concluded that the proper thing to do was to "put it back and start
over," instead of having the Union 's "arm twisted " by discussing the matter in the
context of an accomplished fact.
The contractural provision , by its very nature, represented a subordination by
management of its own convenience and a submission by a union officer to certain
restrictions in deference to the interest of the Union in controlling its officers'
conduct. What were those interests ? It was clear from Volckening 's testimony
and the sense of the provision read in the context of the contract as a whole and the
Union 's constitution , that a prospective transfer of a union officer had to be weighed
against a miscellany of considerations . As one analyzes them, they relate in varying
degrees to the Union 's responsibility to the rank-and-file . Union officers enjoy
a certain prestige with people in the management hierarchy , with whom they
have day-to -day dealings , and hence there is the danger that they may use their
office to wangle jobs for themselves for which the rank and file might wish to
bid.13 Then there is the matter of safeguarding against impairment of the officer's
parties of the depth and importance of the Union 's interest in an 'officer's working place
and shift. So we quote it:
2. The employer will, consistent with the efficient operation of the plant , accede
to any request of the Union for change of shift or department for the President,
Vice President , and Secretary-Treasurer, 5 Trustees and 20 Executive Board
Members, stewards and shop committee members.
It should here be stated that the "20 Executive Board Members " include the area
representatives.
i "Exploit [ ation of) office for personal gain" and entry "into a private agreement
with the company concerning . . . working conditions " are disciplinary offenses under
the Union 's constitution . Article XV 1(a) and (b).
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
capacity to effectively represent his constituency by a transfer to a location or a
shift would remove him from the bulk of the people he has to service. The vice
president under the union constitution has a duty to "work closely with the
Executive Board members in the plants [which includes area representatives, see
supra, footnote 12], so that the stewards may be serviced with a minimum of
lost time." (Article VI (g).) This vital interest of the Union in an officer's de-
partment or shift would seem to be implicitly acknowledged in the second sub-
division, of article 9 E of the contract previously quoted (supra, footnote 12),
which entitles the Union to have any officer transferred on its own request con-
sistently with operating efficiency.
Volckening , when informed of Britt's transfer , knew nothing about Jupiter, but
he knew enough about department 4353 to make him at once apprehensive about
the impact of the transfer upon the effectiveness of Britt's services as area repre-
sentative. In such capacity, as previously related, she was chief steward for the
several hundred inspectors throughout the plant. She was also the liaison between
the stewards of the various departments in her "area" and Volckening, the building
chairman . But her services were hardly confined to contact only between Volck-
ening and the stewards . It involved interviews and communications with the rank
and file as well, so as to enable her to report at first hand the essence of any griev-
ances or related problems. This made it desirable that an area representative have
a working place easily accessible to the maximum number of persons comprising
her constituency.
So while, as stated, Volckening knew nothing specifically about the Jupiter project
in department 4360, he knew that the transfer was taking Britt away from a location
in which she was easily accessible to the majority of the persons she serviced.
He knew also that two other departments had a concentration of inspectors some-
what comparable to 4353, and that Britt's new location was not among them.
(In fact, the Jupiter project was to be in an enclosed area, having but four in-
spectors.) One of these other departments was 5350, surface armaments division,
research area. Volckening , on the same May 2, was asked by management if he
would object to Britt 's transfer to that region , and he said he would not. That
division , apart from setting at rest Volckening 's fears about impairment of the
effectiveness of Britt's services as area representative , seemingly was responsive
to Britt's asserted interest in doing grade A assembly inspection , which she assigned
as the reason for wanting to leave 4353. However, when Britt, on May 2, remon-
strated with Volckening about recission of her transfer of April 30, and heard that
a transfer of her to 5350 surface armaments division , research area, was in prospect,
she angrily put an end to it at the employee relations office. (The Union possessed
the power , under the second subdivision of article 9 E of the contract , previously
quoted, to compel her transfer there, but did not invoke it.) In that same remon-
strance between Britt and Volckening , another fact came to light , which provided
still further vindication for the Union's right of advance notification of a pro-
posed transfer of an officer . Britt told Volckening that the Jupiter project would
open up opportunities for overtime work , of which she wanted to avail herself.14
Such an objective , as Volckening testified , was in square conflict with the policy,
embodied in provisions of the constitution , previously alluded to (supra, footnote
13), against a union officer 's exploiting his office for private gain.
(7)
There would seem to be nothing thus far which remotely challenges the pre-
sumption of honesty of purpose, to which the Union is entitled from the outset.
The considerations governing its protest of Britt's transfer would seem so intimately
related to the underlying purpose of article 9 E , whose legitimacy is undisputed,
that it would be hard , if at all possible , to say that it was acting other than in
furtherance of that purpose . The one element in the case against it was its osten-
sibly different behavior after the transfer of three officers other than Britt. They
were Roland Zilm and Walter Shanley, job -bidding chairman and shop committee
chairman , respectively , and Michael Taliento , a trustee . They too were trans-
ferred at their requests to other departments. The Company did not notify the
Union when that happened, yet the Union made no protest.
The above has a prima facie aspect of disparateness of treatment , which would
call for explanation . It was explained . Their requests for a transfer had been
"The above Is based on the credited version of Volckemng as against P.ritt's contrary
version Raymond Clauss, superintendent of the division involved In the transfer,
testified that the Jupiter project was a new program which had overtime opportunities.
LOCAL 450, INT'L UNION OF ELECTRICAL, RADIO, ETC . 693
of long standing and were no secret. They had discussed their desires with Volck-
ening, and he had had a full chance to consider and weigh their proposed transfers
and to come to a conclusion concerning them well before they took place. The
Union thus had prior notification of the proposed transfer of these officers within
the spirit and purpose of article 9 E, albeit it came from the officers involved,
rather than directly from the Company. On the merits of the transfer, Zilm and
Shanley had offices, the duties of which embraced their full working time. Since
their stations as union officers were not at the departments in which they were
employed, there was no problem of the proximity of their working places to the
employees they serviced. Taliento was a trustee, who did not service employees,
and hence that problem did not arise in his case either. At any rate, Volckening had
a chance to weigh in their cases any possible conflict between their proposed transfer
with the duties of their office, and he found none.
There was thus no disparateness of treatment accorded Britt from that accorded
the three other officers, since it was Britt herself who created the difference. They
had given the Union a chance to consider their transfers by disclosing their intentions
in advance, while Britt chose to keep hers secret and to have the news come to
Voickening from the clear after the transfer had already been achieved.15
One viewing the matter at this detached end cannot escape the feeling that Britt's
troubles arose from her appetite for having her cake and eating it too. She knew
that by accepting the responsibility of office, she gave up a certain amount of freedom
of action she would have had as a rank and filer. Yet she insisted upon the preroga-
tive of office without accepting its restrictions. The other three officers' disclosure
to Volckening of their intentions to transfer was not unique to them. It was a stand-
ing practice, as would be expected. Volckening credibly testified that at no time
in his 3 years as vice president had any officer failed to notify him when he re-
quested a transfer. This is presumably what led to the slackness on the part of the
management's representatives in themselves omitting to specifically notify Volckening.
Employee Relations Supervisor Flood testified that it had always been the intention
of the Company that the Union should have advance notice of any officer's transfer.
Where the Company did not give the notice that intention had been realized anyway
by the fact that the officer involved had given it. Indeed, one management func-
tionary, who had handled the transfer of Taliento, testified that he thought that
when the request for the transfer was made by the officer himself, that automatically
constituted notice to the Union. Flood, of course, repudiated this legal interpreta-
tion from one unqualified to give it, since it obviously overlooks the difference be-
tween the union officer when acting in his capacity as representative and when acting
in his own interest as employee. But the minor functionary's impression makes sense
when viewed not as a legal interpretation but a factual assumption derived from the
prior practice of union officers in notifying their superior official when requesting
a transfer. Flood said that when his investigation revealed that the Union had had
no prior notice of Britt's transfer, he concluded that there had been a breakdown
of communication somewheres, as indeed, there had been, as a result of Britt's covert
action.
There is thus no merit, it would seem to me, in the General Counsel's contention
that the variance in the Union's action in respect to the transfer of Britt from that
which concerned the three other officers was a disparateness of treatment To dis-
regard the differentiating element of Britt's failure to notify Volckening is to say the
Union had consented to forgo its rights under article 9 E for all purposes, which
would be absurd. Indeed, while as shown, the cases of the other three officers were
' In that connection, I am compelled to discount Britt's protestations that on April
30, the day the transfer took place, she unsuccessfully tried to seek out Volckening and
Shop Committee Member Seiden to tell them about it. Even then, it would have been
a bit too late, because she was already in the new department. But at that I am forced
to conclude she did not try hard. She testified she called Volckening at his station and,
not finding him there, left a message for him, and that she had had Seiden paged.
Volckening credibly testified that he never leaves his station without having someone
there to act for him, and he got no message of a call from Britt . One's skepticism
about how intent she was on disclosing her transfer is hardly abated by the fact that
on the evening of April 30, the day she was supposed to have tried to reach Volckening
and Seiden , she attended a meeting with them , but did not tell them of her transfer,
although she did tell Selden she had some matters to take up with him . And how
well Britt can reach her man when she wants to was shown on May 2, when told
her transfer had been rescinded after Volekening 's protest. Then too she called him at
his station , and, not finding him there , tracked him down to where he was, and told
him off.
5 77684-61--vol 128-45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different from that of Britt even if their cases and Britt 's were to be viewed on the
merits in advance of the transfers , Britt, by her vulnerability on the score of failing
to give advance notice, introduced an added dimension transcending the merits
themselves . It forced the Union to take action in vindication of the principle that
contracts should be honored and that officers not connive in their being dishonored.
As a residual contention , the General Counsel suggests that the notification require-
ment of article 9 E did not apply to transfers made at the request of the officers
involved, as opposed to those initiated by the Company . The contract makes no
such exception, and the contention is in conflict with the testimony of Employee
Relations Supervisor Flood that the provision was not thus limited . More important,
the contention assumes a difference between a transfer proposed by the Employer
and one requested by the officer in his own interest , which cannot be rationally
reconciled with the manifest underlying purpose of the restriction in section 9 E.
A transfer requested by an officer in his own interest , as already shown can create
as great a conflict with his official duties as one initiated by the Company-indeed a
greater, because it introduces the additional element of conflict of interest.
Finally, the General Counsel reads a fulfillment of the requirement of the notifica-
tion provision in an incident occurring in February . Sometime that month
Volckening received a call from Roland Zilm, the Union's job-bidding chairman,
who worked in liaison with the manpower division, to the effect that Calvin Staap,
the manpower coordinator, wanted to know whether Volckening would consent to
Britt's transfer . No specification was given regarding the place of any proposed
transfer or whether it was the Company or Britt that requested it. Nor had Britt
herself mentioned anything to Volckening about it. In that context, Volckening's
reply was, "Tell Cal that I am not transferring Mildred Britt to any other area
because I need her where she is." As he put it, "If I ever said, `Yes,' and she was
transferred she might scream and say, `What is going on here, that is completely
wrong.' " This inquiry was never followed up, nor did Britt ever speak to Volckening
about it or indicate she had requested or had the least interest in it. I would see no
warrant for regarding the February inquiry, lacking specificity of any character, as
a notice or even a "sort of notice" of the transfer of April 30, or as evidence that
Volckening, had he been given advance notice of Britt's transfer, would not have
considered it on its merits in the light of the applicable criteria, as he described them.
(8)
One other facet of the abortive transfer of April 30 may here be mentioned. The
area to which Britt requested the transfer happens to be in the constituency of
William Dunn , the same Dunn who was involved in the incident of late December
1957, which had its origin in Britt's capricious failure to send the customary union
voucher for his union activity time. It will be recalled that Britt had vowed both
to Seiden and to Dunn that just as she had made him in the Union, so would she
break him. Britt could not compete for Dunn's office as shop committee member,
since they were in different occupations , or "areas" of representation, but she could
take advantage of her new location to bring him into disrepute among his con-
stituents . We have Britt's solemn assurance that this never entered her mind But
this must be appraised in the light of her other testimony , including her assurance
that she had nothing in mind when she unexplainedly singled Dunn out as the one
person for whom not to send a union voucher in the December incident . We must
appraise it also against the testimony of the more reliable and objective Seiden that
in April , when she sought out the location in question , she again spoke bitterly about
Dunn, saying , "There as lots of women in Dunn 's area, they have always supported
me and I will go in that area and do a job on him and see that he doesn 't get in again."
During that same month, according to Dunn's credited testimony , Britt frequently
visited the APN 59 products area, where she engaged the various women in con-
versation , and, in encountering Dunn , repeated her threat that she "was going to
do a job on [him ]." These vengeful utterances would reasonably give the Union
an anxious moment, not out of love for Dunn or hatred for Britt , but concern for
the Union . It hardly enhances a union 's prestige or standing with a company, when
a working region is degraded into an arena of death -dealing combat between two
top officers. The General Counsel, while conceding the legitimacy of the other
two factors involved in Britt's transfer ( namely, the accessibility of the new location
to her constituency , and whether Britt would derive an unfair economic advantage
from it ), contends that the Union could not validly consider Britt's vengeful political
motive toward Dunn . The contention would seem to be premised upon the view
that Britt's political activity against Dunn would have been a "concerted activity"
entitled to the protection of the Act, from which it would follow, so it is claimed,
that the Union 's vetoing her transfer to prevent such activity was a restraint in
° LOCAL 450, INT'L UNION OF ELECTRICAL, RADIO, ETC. 695
violation of Section 8(b)(1)(A). The contention would seem to me to confuse two
things-an employee's right to engage in the concerted activity of political discussion
relating to the Union , and the use of a transfer for the ulterior purpose of executing
a political vendetta out of personal spite . It is one thing for the Union to have
a political reason of its own in thwarting the transfer , and quite another to act
defensively to ward off Britt's aggressive purpose in invading or infiltrating into
Dunn's area for the purpose of squaring personal accounts . That too would have
involved Britt 's use of her office for a purely private purpose, to which the Union
was hardly obliged to lend its imprimatur . To be kept in mind is the fact that we
are not here evaluating a union position taken prior to a transfer , after notice has
been given it in conformity with the contract , but with the good faith of its position
when confronted with an accomplished transfer made in breach of the provision
requiring prior notice . I would not think that the Union 's good faith in refusing
to condone the breach of the contract is subject to attack because in the congeries of
factors which entered into it was concern over Britt 's ulterior personal purpose in
maneuvering the transfer.
(9)
We round out the narrative with a recital of the highlights after April 30. It has
been mentioned that given her chance on May 2 to do A inspection in an area ac-
ceptable to Volckening , Britt angrily rejected it. On May 8, on a standard grievance
form, she wrote the following as her statement of grievance:
After requesting and receiving a transfer to another department the company
later recinded the transfer at the request of the Union . I change the company
and the Union with collusion and discrimination in regards to my transfer.
Britt got her steward to sign it and then , as a preliminary to having it submitted to
her foreman , asked Shop Committee Member Seiden to approve it. Seiden thought
it improper for an officer to approve or a steward to sign and present a grievance
accusing the Union of collusion He so told the steward and instructed him to remove
his signature. He also told Britt she was free to submit her gievance on her own.
Asserting her authority as area representative , Britt, as such officer, signed approval
of her grievance and instructed her steward to present it to her foreman. The
steward complied . Donovan , the foreman , denied the grievance ( as he had to,
since he had already been overruled by higher authority when the employee relations
office ordered Britt's transfer).
The next stage was the decision of the shop committee as to whether to take the
grievance to the "second step" of direct negotiations between the shop committee and
top management . Seiden , in reporting on it to the shop committee , indicated the
Union would be in a "ridiculous" position to push a grievance , in which , in effect,
it would be accusing itself of being in collusion with the Employer . On the merits,
he expressed the opinion that a mere transfer at the same level, as distinguished from
an upgrading or advancement , while it may be an employee "gripe" was not a griev-
able matter under the contract . He expressed the same view on the witness stand.
A like opinion was previously expressed on the stand by Employee Relations Super-
visor Flood. ( The matter was never tested between Company and Union, since
never before or since has any employee filed a grievance based on his not being
transferred to another department at the same job title and grade level-a matter to
be alluded to later. ) Seiden nevertheless recommended that the grievance be taken
to second step in order to obviate recriminations from Britt. The committee, over-
ruling Seiden , voted not to take the grievance up.
Britt 's next recourse under the constitution was an appeal to the general stewards
council . That body consists of all duly elected stewards , officers, and executive
board members ( article XI), and is comprised of about 150 people . Shortly after
the shop committee 's decision and before Britt filed her appeal , the executive board
held a regular meeting, which Britt attended as one of its members (supra, footnote
12). Some of Britt's fellow members on the board expressed concern that she, an
officer of the Union , should have accused it of collusion , and wanted to known what
underlay the accusation . Britt insisted she would say nothing except through the
regular channel of an appeal to the general stewards council. There was consider-
able acrimony at that point, and several members were uncomplimentary in their
comments to Britt. A member of a minority faction called this a "kangaroo court"
and he drew a formal censure from the board for it. Britt filed her appeal, and at
the hearing before the general stewards council , Britt and Volckening, in that order,
stated their respective positions-Britt that she wanted to develop her skills, and
Volckening that he had an obligation to guard against an official 's use of his office for
private advantage . After hearing them and other speakers from the floor, the
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
council by `overwhelming" vote upheld the shop committee 's decision not to take
up the grievance. Britt's next recourse under the constitution was to the membership
at large, which, under that document, is formally declared to be "the highest govern-
ing body of the Local Union." (Article XXI(8).) She did not avail herself of that
further step.16
On July 1, 1958, Britt filed the charges in this proceeding with the Regional Office
of the Board. The Regional Director dismissed on October 21, 1958, for "insuf-
ficient evidence to support the charges." 17 On November 5, Britt was notified by
the complaint board of the Union of charges brought against her by Volckening.
(The complaint board, under the constitution, is a strictly rank-and-file body. Its
composition is renewed every quarter year by lot from among the entire membership.
Officers and stewards are ineligible to serve on it, and a rank and filer, if selected, may
not refuse to serve except for a satisfactory reason. article XIV.) The charges,
copies of which were sent to Britt, accused her of violating the constitution on three
counts: (1) of having as "an official representative" of the Union, entered, in viola-
tion of article XV(c), "into a private agreement with a company official concerning
working conditions for herself"; (2) in having as such official, in violation of article
XV(d), acted "in a manner detrimental to the best interest of the Union" and cir-
culated "false and malicious statements reflecting upon the conduct and character of
the Vice President"; and (3) in having contrary to article XV(g), filed charges with
the Labor Board "without first having exhausted all the processes and remedies
within the Union as provided in the . . . Constitution."
Britt did not answer the charges and, although given due notice of the trial, did
not appear. On January 21, 1959, after trial, she was notified by the complaint
board that she was found guilty of the charges, and that her penalty was that she
would be ineligible to hold office for 1 year. Britt was notified of her right under
the constitution to appeal to the general stewards council, but did not carry the
matter up.18
As for Britt's work history thereafter: By 1959, she no longer held office in the
Union. The Company, now free to transfer Britt without notice to the Union, trans-
ferred her to successive areas of department 4360, but in each instance other than
APN 59 products area, which is involved in the original transfer. She did grade A
assembly inspection in each of the two areas, and, as of the date of the hearing, was
still doing so. In answer to my inquiry as to how this still fell short of her desires,
Britt replied that APN 59 products area involves work "more of a mechanical
nature" than she is doing now, which is "mostly electrical," and that her prior
experience had been in mechanical work. Britt's asserted preoccupation with "de-
veloping skills" at her grade level was quite unsual for one at the top of her job
title. Employee Relations Supervisor Flood testified that there were no instances
where an employee requested work at a higher grade involving no raise in wage
rate, except "in the tester-technician groups [where] you do run across some really
scholarship minded people who are anxious to utilize their skills at the highest grade
because they may have engineering goals in sight." As for Britt's asserted desire to
develop her skills for the purpose of future promotion, Flood testified that "while
nothing is impossible," since Britt was at the top grade in her job title, "it would be
highly improbable for her to advance within the hourly bargaining unit to a higher
job." Britt claimed that she aspired to become a "leader." Seiden, whose duties as
shop committee member over a number of years have made him conversant with
jobs and their promotion potential, credibly testified that there has been no leader
at grade A assembly inspection (although there have been some at parts inspection)
and that the only grades at which there have been assembly inspection leaders were
"where there are a large number of inspectors, usually of lower skills, working in a
concentrated area," that is, where there are "a lot of D and C people and the leader
helps them with the job and instructs them."
is During the pendency of the grievance, Britt was writing to enlist the support of
the International and also of its District 4, which has jurisdiction over Respondent
Union. They replied she "must first have exhausted the processes of [the] local union,"
but promised to send an International representative "to see If [the matter) can be
resolved on a mutual basis" An International representative attended the general
stewards council meeting as an observer , but took no part in the deliberations.
17 The complaint Issued February 13, 1959, after a successful appeal by Britt from
the dismissal . See .supra, footnote 2.
v Even after the general stewards council , Britt would have been free to pursue three
successive appeals, the first two, in that order , to District 4 and the International, whose
aid she had prematurely solicited during her grievance, and, finally, to the national
convention of the IUE. Article XVI (3).
LOCAL 450, INT'L UNION OF ELECTRICAL, RADIO, ETC. 697
C. Ultimate findings
There has been an air of unreality about this case. The record indicates that
apart from those with engineering aspirations, no employee ever complained about
doing work at less than his grade level as long as he was being paid at his grade.
One is to understand then, that Britt had a most extraordinary dedication to the
"development of her skills," as she put it, even though, as the testimony of manage-
ment representative Flood made clear, there was no higher paying hourly job to
which a person at the top of her grade, like Britt, could aspire. Britt's asserted
dedication to her craft would be more impressive were the record not replete with
indication that she was straining to get away from the workbench altogether, as
manifested by her bitterness over not having been selected a second term to the
job-relieving office of secretary of the shop committee; her restlessness, after termina-
tion of her tenure there, over not being called away from the workbench on union
matters even more than the over 50 percent of her time that was already being done;
and her running, in 1958, not for reelection as area representative, where she could
have continued as officer and also at the workbench, but as member of the shop com-
mittee, where, if she had won, she would have been away from her job for still
another year. While negotiation of grievances is a skill of its own, it is difficult
to see it as a better training ground for assembly inspection than assembly inspec-
tion itself. Nor is it easy to understand why, if Britt's motive in seeking out APN
59 products area had been the chance of doing grade A assembly inspection, as she
claimed, she angrily rejected that chance when it was given to her in a department
other than the 59 products area, or why, if she thought the latter was the sole
answer to her craving for occupational perfection , she omitted to file charges against
the only one who could be compelled to put her back there-the Employer.
Which brings us back to the basic issue: in protesting Britt's transfer without prior
notice to it, the Union acted under a concededly valid provision of the contract,
which entitles it to such notice before one of its officers can be transferred. The
requirement is not a capricious one, but is rooted in valid considerations of pro-
tecting the rank and file against an official using his office for private advantage and
against impairment of an official's utility to his constituents. Thus, one may not
lightly attribute an ulterior, discriminatory motive to the Union in asserting its rights
thereunder. The record does not overcome the presumption of the honesty of the
Union's purpose. Indeed it does not even shake it. The assertion that the Union
had a preexisting hostility toward Britt because of her opposition, as is claimed, to
its policies and administration is totally unsupported. The items relied on in proof
of Britt's asserted "opposition" are first, a conversation with the president of the
Union, which is supposed to have taken place over 4 months before any other event
in the case, is of dubious authenticity, and, on its and Britt's own description, was of
a most casual nature, and never again alluded to by anyone; and second an incident
involving Britt's capricious use of her office to embarrass a fellow official in pique
over the rupture of their private relationship. The claim of "hostility" is founded
upon a suggestion by the Union's president as fellow-member of Britt's "political
party," that she run for any one office instead of two, because of the difficulty of
serving well on both, and the fact that after she was elected area representative,
she failed in her aspirations for the additional office of secretary of the shop com-
mittee, with nothing in the record to impugn the disinterestedness of the president's
suggestion or of the institutional deliberations which culminated in her nonselection.
The claim that after February, when Britt returned to her job, the Union's officialdom
was hostile to her has no support and would seem to rest upon what I have termed
the theory of presumptive alienation-that Britt's deliberate avoidance of her fellow-
officers and her insolent rebuffing of invitations to participate in their party councils
must have antagonized them, regardless of whether the record otherwise showed it
did. (One recalls, in that connection, the jurisprudence invoked by the relentless
Buzfuz against the unhappy Pickwick, where prima facie proof of innocence is by that
token even greater proof of insidiousness of purpose.) And the one item adduced in
confirmation of that theory, which is that the Union had called Britt away from her
workbench only a negligible amount of time on union business-farfetched as that
would be as a supporting item even if true, disintegrated in the face of the objective
facts showing the reverse. Finally, the claim that there was disparateness of treat-
ment between Britt and three other officers transferred without notice by the Com-
pany, pales in the face of the fact that these officers, in contrast with Britt, had re-
spected an established practice of giving advance notice of their proposed transfers
to the Union's vice president, so that he had a full prior chance to appraise the im-
pact of the proposed transfers upon the performance of their functions as officers.
In the last analysis , this case is not one of a conflict between an employee and
union officialdom, so much as a collision between the private interest of a union
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
official and the interests of the rank and file as embodied in the contract made for
them by their chosen representative . The provision in the contract governing the
transfer of an officer existed long before Britt took office, and she knew that as an
officer she was subject to its restrictions . If she found them too irksome , she was
free, as indeed Volckening reminded her, to give up her office . She could not, as
she insisted upon doing , ride the best of both possible worlds-have her office and
at the same time be as untethered as a rank-and -file employee . And while one need
not go that far in disposing of the issue, it may be said that it is difficult to see how the
Union could have failed to protest and try to undo the coup sprung by Britt without
being derelict in its duty to the rank and file.
It is accordingly concluded that the record does not support a finding that the
Union acted out of other than an honest motive to protect its legitimate interests
under the contract . It is further concluded that the Employer, in rescinding the
transfer , did not discriminate against Britt, in violation of Section 8(a)(3), but was
acting to rectify an acknowledged infraction of a valid contract with the Union.
It is further found that the Union neither caused nor attempted to cause the Emp'oyer
to discriminate against Britt, in violation of Section 8(b)(2) or 8(b)(1) (A) of the
Act, as claimed.
Upon the foregoing findings, and upon the entire record , there are hereby made
the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The contract between the Union and the Employer validly required notification
to and discussion with the Union before the transfer of a union officer from one
department to another.
4. The transfer of Mildred M. Britt took place without compliance with the fore-
going provision of the contract.
5. In protesting the transfer because of noncompliance with that provision, the
Union acted to protect its legitimate interests thereunder and its action was not
discriminatory in intent or effect.
6. The Union did not cause or attempt to cause the Employer to discriminate
against Britt in violation of Section 8(a) (3).
7. The Union did not engage in any unfair labor practice within the meaning of
Section 8(b) (2) or (1) (A) of the Act, as alleged.
[Recommendations omitted from publication.]
Anderson Air Activities, Inc. and International Association of
Machinists , AFL-CIO. Case No. 14-CA-2112. August 16, 1960
DECISION AND ORDER
On December 4, 1959, Trial Examiner Eugene K. Kennedy issued
his Intermediate Report in the above-entitled proceeding, finding
that Anderson Air Activities, Inc., hereinafter called Respondent,
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in
the complaint, and recommended that these allegations be dismissed.
Thereafter Respondent filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
128 NLRB No. 74.