Machinists Lodge 2533 (Federal Mogul)

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 669 (N.L.R.B. 1990)

669
300 NLRB No. 74
MACHINISTS LODGE 2533 (FEDERAL MOGUL)
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 We agree with the judge that the Respondent has failed to establish that
discriminatee Humphreys’ grievance lacked merit. As the judge found, there
is evidence suggesting that, contrary to its contractual obligations, the Em-
ployer failed to fairly consider Humphreys for promotion and that, had it done
so, a fair evaluation of Humphreys’ qualifications might have resulted in a
successful bid. Further, we note that there is ample arbitral authority sup-
porting an award of backpay for a period subsequent to the contractual breach
as a remedy for an employer’s failure to consider an applicant fairly for a pro-
motion. See Hill and Sinicropi, Remedies in Arbitration (BNA 1981) at 91–
96, 141–147.
3 We agree with the General Counsel that the formula for computing the
amount of backpay owed is an issue properly left to the compliance stage of
the proceeding. We shall modify the recommended Order and notice to reflect
this change. See Mail Handlers Local 305 (Postal Service), 298 NLRB 473
(1990).
1 Rubber Workers Local 250 (Mack-Wayne), 290 NLRB 817 (1988).
2 See Machinists District 186 (Federal Mogul), 291 NLRB 535 fn. 1 (1988).
3 This case is distinguishable from Mail Handlers Local 305 (Postal Serv-
ice), 298 NLRB 473 (1990), in which I concurred in an award of backpay.
In Mail Handlers, the record demonstrated not only the company’s failure to
follow its own procedures, but a nexus between that failure and monetary
damage to the grievant. In this case, because there is no showing that Hum-
phreys would have obtained the trainee position if the Company had followed
its procedure, I cannot find that the General Counsel has proven the grievant
sustained an actual monetary loss. Similarly, the record fails to show that
Humphreys would have obtained the tool grinder position if the Company had
followed its posting procedure. Absent this showing, the General Counsel has
not established any monetary damages, and I would not award any such dam-
ages.
International Association of Machinists and Aero-
space Workers District 186, Lodge 2533, AFL–
CIO (Federal Mogul Corporation) and Herman
R. Humphreys. Case 5–CB–4592
October 31, 1990
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On November 24, 1989, Administrative Law Judge
Claude R. Wolfe issued the attached supplemental de-
cision. The General Counsel filed exceptions and a
supporting brief and the Respondent filed exceptions,
a supporting brief, and an answering brief to the Gen-
eral Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Inter-
national Association of Machinists and Aerospace
Workers District 186, Lodge 2533, AFL–CIO,
Blacksburg, Virginia, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Make Herman R. Humphreys whole for wages
lost as a result of the Respondent’s unlawful conduct
in refusing to process his grievance, by paying him a
sum of money equal to the increase in wages he would
have received had he prevailed on his grievance. Back-
pay shall be computed as in F. W. Woolworth Co., 90
NLRB 289 (1950), and interest as in New Horizons for
the Retarded, 283 NLRB 1173 (1987).’’
MEMBER CRACRAFT, dissenting.
Contrary to my colleagues, I would not find that
Humphreys is entitled to backpay to remedy the Re-
spondent Union’s failure to pursue his grievance. I
reach this conclusion for the reasons stated in my sepa-
rate opinion in Mack-Wayne II,1 in which I expressed
the view that the burden of proof is on the General
Counsel to establish that an individual’s grievance was
meritorious before the Board may assess backpay li-
ability against a union that has violated its duty of fair
representation. On October 31, 1988, I joined my col-
leagues in remanding this case to the judge.2 The Gen-
eral Counsel’s burden of proof has not been met in this
case. The record on remand does not reflect that Hum-
phreys’ grievance had merit. At best, the record indi-
cates that had the Company followed its written proce-
dure, Quesenberry might not have obtained the trainee
position. The General Counsel failed to show, how-
ever, that Humphreys would have obtained the posi-
tion.3 Therefore, a backpay order is inappropriate.
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to process the griev-
ance of Herman R. Humphreys, or any other em-
ployee, or process such grievance in a perfunctory
manner, without reason or for arbitrary or invidious
reasons.
WE WILL NOT inform employees that we would
refuse to handle grievances of any employee who is
not a member of the Union.
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 291 NLRB 535.
2 Machinists District 186 (Federal Mogul), 291 NLRB 535 (1988).
3 290 NLRB at 819.
4 290 NLRB at 820.
5 Plumbers Local 195(Bethlehem Steel), 291 NLRB 571 (1988);
Mailhandlers Local 305 (Postal Service), 292 NLRB 1216 (1989) ; Oil Work-
ers Local 5–114 (Colgate-Palmolive Co.), 295 NLRB 742 (1989).
6 290 NLRB 820 fn. 29 (1988).
7 Outstanding objections raised at trial which have not been ruled on are
overruled.
WE WILL NOT inform employees that we would not
represent employees who are nonmembers of the
Union.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make Herman R. Humphreys whole for
wages lost as a result of our unlawful conduct in refus-
ing to process his grievance by paying him a sum of
money equal to the increase in wages he would have
received had he prevailed on his grievance, plus inter-
est.
INTERNATIONAL ASSOCIATION OF MA-
CHINISTS AND AEROSPACE WORKERS
DISTRICT 186, LODGE 2533, AFL–CIO
Angela S. Anderson and Mark Ford Wilson, Esqs., for the
General Counsel.
Owen E. Herrnstadt, Esq., for the Respondent Union.
Supplemental Decision
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Christiansburg, Virginia,
on June 13 and 14, 1989, pursuant to the Board’s Decision
and Order Remanding issued October 31, 1988,1 wherein the
Board adopted Administrative Law Judge James T.
Youngblood’s recommendation that the Union be found in
violation of Section 8(b)(1)(A) of the Act because, among
other things, it refused to process the grievance of Herman
R. Humphreys beyond the second step of the grievance pro-
cedure contained in the collective-bargaining agreement be-
tween the Union and Federal Mogul Corporation (the Em-
ployer) because Humphreys was not a union member. Hav-
ing so found, the Board remanded the case for the purpose
of providing the Union an opportunity, in accord with the
Board’s decision in Rubber Workers Local 250 (Mack-
Wayne), 290 NLRB 817 (1988) (Mack Wayne II), to prove,
at either the unfair labor practice stage or in a compliance
proceeding, that Humphreys’ grievance lacks merit. The
Union elected to litigate the merits issue at the unfair labor
practice stage. The case was then set down for hearing be-
fore me because Judge Youngblood has retired.
On the entire record, including the demeanor of the wit-
nesses and the posttrial briefs of the parties, I make the fol-
lowing findings and conclusions.
Standard of Proof and Rules of Evidence
The Board found the the General Counsel has met her bur-
den of establishing the grievance was not clearly frivolous,
and noted, citing Mack-Wayne II, that once General Counsel
meets that burden, ‘‘the burden of proof shifts to the union
to establish that the grievance lacked merit.’’2 In Mack-
Wayne II, the Board described the union’s burden as ‘‘the
burden of establishing that the 5 employee’s grievance would
have been denied or that the discharge was justified.’’3 Here
no discharge is involved, but the principle remains applica-
ble. At later points in Mack-Wayne II, the Board describes
the union’s burden as one of establishing that the grievance
was not meritorious.4 In other decisions, the Board, citing
Mack-Wayne II, has referred to the union’s burden as one of
establishing the grievances were not meritorious, but makes
no reference to its description of the union’s burden as one
of establishing that the employees grievance would have
been denied or that the conduct complained of was justified.5
I agree with General Counsel that the issue here is not
whether Humphreys would have won if his grievance had
been processed further. Consistent with the Board’s discus-
sion in Mack-Wayne II, I am persuaded Respondent Union’s
burden in the instant case is to establish Humphrey’s griev-
ance, if processed through the existing grievance procedure,
would have been denied or that the failure to promote him,
rather than the employees selected for promotion, was justi-
fied. As heretofore noted, Respondent Union had the option
of litigating this issue at the unfair labor practice hearing or
at the compliance stage. It chose the former. This does not
change the fact that the purpose of this remand hearing is to
ascertain the proper remedy, i.e., whether Respondent Union
has any monetary liability to Humphreys for wages lost. As
Board Member Johansen observed in Mack-Wayne II,6 the
Board’s remedial authority is based on Section 10(c) of the
Act, rather than on a collective-bargaining agreement. Sec-
tion 10(c) provides that the findings of the Board shall be
based on the preponderance of the testimony taken. There is
no indication in Mack-Wayne II or its progeny that the Board
has elected to use a different standard in such cases, or to
apply rules of evidence other than those referred to in Sec-
tion 10(b) of the Act and Sections 102.39 and 102.59 of the
Board’s Rules and Regulations which require, so far as prac-
ticable, adherence to the rules of evidence applicable in the
district courts of the United States. Accordingly, the sugges-
tions of the parties that I employ different standards of proof
or rules of evidence are rejected.
Chronological Development7
The chain of events leading to this proceeding began when
the Employer posted a document bearing the following head-
ing:
JOB BID SHEET
DATE & TIME POSTED: FRIDAY, SEPTEMBER 16,
1983
(In order to be eligible for consideration to bid on
this position, you must sign the bid sheet within forty-
eight (48) hours subsequent to the date and time post-
ed.) The posted job must be an upgrade from your cur-
rent labor grade in order to be eligible for consider-
ation.
671MACHINISTS LODGE 2533 (FEDERAL MOGUL)
8 All dates are 1983 unless otherwise indicated.
POSITION: TOOL & DIE TRAINEE A
SHIFT: lllll
DEPARTMENT: TOOL ROOM LABOR GRADE 23
EMPLOYEE NAME, DEPT. 7 SHIFT
EMPLOYEE NAME, DEPT., SHIFT
Herman R. Humphreys and several other employees includ-
ing Donnie Quesenberry signed this bid sheet. Quesenberry
was the successful bidder and was promoted to the tool and
die trainee job.
On December 5, 1983,8 Humphreys completed a grievance
form which was filed with the Employer on December 6. In
completing the form, Humphreys described his complaint in
the following words and figures
H.R. Humphreys contends he was discriminated
against when he was not given tool & die trainee job
or tool grinder job, not even given interview for job. He
contends he was the most qualified applicant. Super-
visor says all applicants had equal qualifications, so se-
niority prevailed. . . .
Company violated: (a) Article XIII Section 13—
training is not equal, H. E. H. has 2 years shop training
more. (b) Exhibit ‘‘B’’ Section 2-selection will be
based on . . . H. R. H. has 3 years college at V.P.I.
more. (c) Article XVII Section 1—no discrimination (d)
Article XXVII—laws (e) Article XXXIII no
unexpressed understanding. (f) Article II—Intent.
Humphreys testified that he inserted the words ‘‘or tool
grinder job’’ after he had completed the document and ‘‘read
over it a numerous amount of times.’’ It is obvious on the
face of the grievance these four words were inserted after the
rest were written. He concedes that his reference in the
grievance to a supervisor’s statement to the effect all appli-
cants were equally qualified and seniority prevailed related to
the tool and die trainee position. There is little evidence re-
garding the procedure that was used to fill the tool grinder
vacancy, but the contract requires a posting of a notice of an
opening in any job above labor grade l. Tool grinder is at
labor grade 9. Humphreys’ reference, in a sworn statement
given to a Board agent during the original investigation of
the underlying charge in this case, to ‘‘both lists’’ from each
of which the first four or five bidders were given interviews
does not establish a bid sheet was posted for the tool grinder.
There is no evidence Humphreys signed a separate bid sheet
for the tool grinder job, and I therefore cannot find that he
did.
Charles Edmonds, the Employer’s personnel manager at
the time of Humphrey’s grievance, credibly testified he re-
calls no mention of a tool grinder job during his involvement
with the grievance concerning the tool and die apprentice po-
sition. He does not recall or believe that the insertion ‘‘or
tool grinder job’’ was on the grievance at the time he re-
sponded to the grievance in step 2 of the procedure. The par-
ties were unable to locate the original of the grievance. In
view of the fact the Employers Xerox or similar system copy
of the grievance contains the insertion, I conclude it existed
when the Employer replied to the grievance, but I further
conclude there was no discussion of the tool grinder job in
Edmonds’ presence. It appears from Humphreys’ testimony
that he learned the tool grinder job had been filled by Mike
Brogan when Humphreys inquired of his supervisor, Richard
Dangerfield, on or about December l, what had happened
with the tool and die trainee opening. Dangerfield told him
that Quesenberry had been given the job because the appli-
cants were equally qualified and he therefore applied the
contractual rule on seniority. Dangerfield then advised him of
Brogan’s promotion and the award to Don Law of a grinder
position to be filled later. As Humphreys described this
meeting in his December 12 letter to Robert Glover, the
Union’s business representative, ‘‘Almost no mention was
made of the other two jobs, the tool grinders.’’ After this
meeting with Dangerfield, Humphreys filed his grievance. I
am persuaded what most probably happened is that Hum-
phreys, bent on pursuing the tool and die trainee job, com-
pleted his grievance with that in mind, but decided to insert
the reference to the tool grinder job when he learned it had
been given to a tool and die trainee applicant. Judge Young-
blood found, with Board approval, the grievance covered
both jobs.
On December 6, Dangerfield gave his response to the writ-
ten grievance: ‘‘No violation of contract, grievance denied.’’
This decision was then appealed to Edmonds who responded:
Selection of successful candidates for promotion is
always difficult when there is more than one well quali-
fied candidate. The selection procedure and criteria
used in this case complied with the contract and estab-
lished policy. Randall is considered an excellent em-
ployee and I am sure he feels that he should have been
selected. However, that is no basis for a charge of con-
tract violation and there is no contractual basis for the
requested relief.
Therefore, this grievance is denied.’’ Thereafter, as Judge
Youngblood and the Board have found, Respondent Union
refused to process the grievance further because Humphreys
was not a union member.
An assessment of the merits of Humphreys’ grievance
must necessarily commence with the applicable provisions of
the collective-bargaining agreement. Article IV, the manage-
ment rights clause, provides, in relevant part, that
Unless expressly and specifically provided to the
contrary in this Agreement, the management of the
Company’s business at Blacksburg, Virginia, and the
direction of the working forces including the planning,
direction and control of operations, the scheduling of
work and the assignment of employees to such work,
the creation, change, or abolition of jobs or job classi-
fications . . . are all vested soley and exclusively in the
Company. It being understood however that when the
Company enforces a rule, the reasonableness of the rule
as well as the justification for the action taken by the
Company may be raised under the grievance procedure.
It is further agreed that the Company retains the right
to exercise any other rights, function, or prerogative of
management which is not abridged by an express and
specific provision of this Agreement.
The Company retains the right . . . to transfer and
to relieve employees from duty because of lack of work
or other legitimate reasons except as expressly and spe-
cifically provided to the contrary in the Agreement.
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Company’s not exercising any right hereby re-
served to it or its exercising any right in a particular
way, shall not be deemed a waiver of any such right
or preclude the Company from exercising the same in
some other way not in conflict with the express terms
of this Agreement.
Article XIII, section 13, reads, in relevant part, as follows
When a job opens within a classification above
Labor Grade l the Company will post in the plant a no-
tice of such opening for forty-eight (48) hours. An ac-
tive employee seeking advancement to a higher hourly
rated classification . . . must sign the posting sheet
during such forty-eight (48) hour period. The Company
will review all employees who have declared an interest
in accordance with this section. . . . When a job opens
within a classification above after reviewing the appli-
cations of those who have signed the posting at the end
of the above forty-eight (48) hour period among quali-
fied applicants, the most senior will be given preference
if demonstrated skill, experience and training are rel-
atively equal.
Exhibit B to the agreement has the following relevant provi-
sions:
SECTION 2
Applicants for training must submit applications
tothe Personnel Department. Openings for trainee will
be filled in accordance with Article XIII, Section 13 as
it relates to openings in Grade 5 or above. However, se-
lection will be based on evaluation of past experience,
job performance, demonstrated skills, education, and
mechanical aptitude—all as they relate to the individ-
ual’s ability to undertake selected training and success-
fully perform the work of this occupation. A person
placed in training under these circumstances shall carry
the classification of Trainee and will be enrolled in the
applicable Training Program, as provided for in this Ex-
hibit. Such employees will then be subject to the provi-
sions and procedures contained in this Exhibit.
SECTION 3 CREDIT FOR PREVIOUS EXPERIENCE
Selected Trainees who have had applicable military
training or other formal training may be allowed course
curriculum training credit in accordance with the train-
ing standards after their record has been reviewed by
the department supervisor and the personnel depart-
ment. It shall be each applicant’s responsibility to sub-
mit, in writing, verified evidence of such training.
SECTION 8
1. Each trainee must enroll and attend classes at New
River Community College (or other approved school)
as indicated in the applicable schedule of training pro-
vided in Section 12.
12. Each trainee must satisfactorily complete the re-
quired courses with a grade of ‘‘C’’ or better for credit
in the program.
13. Classes other than those listed in this schedule
may be substituted upon approval of the department su-
pervisor and the personnel department.
14. Trainees will be provided with a schedule of
structured experience and time for each and will be re-
quired to complete these assignments as part of their
training program.
SECTION 12c(2)
TOOL & DIE TRAINEE CURRICULUM
COURSE CLASSHOURS
CREDIT
HOURS
Mech. J11 Introduction to Shop Op. I 8 4
Drft. 164 Mach. Blueprint Reading 3 3
Mech. K11 Intro. to Shop Op. I 8 5
Math 100 Math Calculations 4 4
Drft. 164 Blueprint Reading 3 3
Math. 107 Intro. to Eng. Tech. Math 3 3
Drft. 172 Blueprint Reading II 3 3
Mech. 170 Intro. to Numerical Control 3 3
Mech. 286 Precision Measurement 2 2
Drft. 127 U.S.A. Standard Dimensions 2 2
Math 110 Introduction to Metric System 1 1
Indt. 176 Principles of Indust. Safety 2 2
Indt. 111 Matl. & Processes of Ind. 3 3
Mech. 118 Tool Design 4 3
Math 111 Technical Math I 3 3
53 45
Merits of the Grievance
Discussion and Conclusions
Quesenberry is senior to Humphreys by 34 days. Judge
Youngblood found, and the Board adopted his finding, that
Dangerfield, who did not testify, expressly told Humphreys
he made the decision to give the tool and die trainee job to
Quesenberry because all applicants were equally qualified
and Quesenberry was senior to Humphreys. It is not clear
why applicants other than Humphreys were considered as
well qualified as Quesenberry, or why Quesenberry was
given the job over others more senior. That Edmonds or oth-
ers may now question Humphreys comparative qualifications
is of no consequence because it was Dangerfield who made
the selection which was endorsed by Edmonds, who noted in
his written rejection of the grievance that it was difficult to
select ‘‘when there is more than one well qualified can-
didate.’’ The issues raised by the grievance with respect to
the tool and die trainee job are Humphreys’ claim he should
have been interviewed before the selection of a successful
bidder was made, and Humphreys’ claim he was not only
equally qualified but better qualified than Quesenberry.
Moreover, the evidence raises an additional question. Why
did not Dangerfield select Brogan or another applicant, of
which there were several senior to Quesenberry, if
Dangerfield considered them all equally qualified. The evi-
dence provides no answer for this additional question.
The Employer’s records contain interview evaluation
sheets relative to the tool and die trainee bidders for only
seven applicants including Quesenberry. The other six were
all senior to Quesenberry. There were 35 bidders in all. The
content of the seven evaluations, other than the names of
673MACHINISTS LODGE 2533 (FEDERAL MOGUL)
9 The placement of the various positions occupied by Humphreys and
Quesenberry with respect to their relative place on the promotional ladder is
shown by the following attachment to the contract. The wage increase progres-
sion is not shown because it is superfluous to this case.
those evaluated, was not placed in evidence. Humphreys was
not interviewed.
With respect to comparative qualifications, it appears that
although their work experience differs somewhat both
Quesenberry and Humphreys were excellent employees. Both
were hired at the machine operator II, grade 10 level, Hum-
phreys on June 19, 1972, and Quesenberry on May 15,
1972.9 Humphreys was promoted to bonding line control,
grade 12 effective November 13, 1972, and became a tool
cutter grinder on July 10, 1978. He remained in that capacity
until August 4, 1986 when he was promoted to tool grinder,
long after his grievance was filed and Judge Youngblood’s
decision issued. Quesenberry was promoted to setup, grade
13 on September 3, 1973. On July 21, 1975, he became a
tool grinder. At some point thereafter he was a tool cutter
grinder, but was again classified as a tool grinder effective
February 16, 1981, where he stayed until he became a tool
and die trainee A on January 2, 1984, pursuant to his suc-
cessful bid. He became a tool and die maker on March 20,
1989. On the basis of their employment history and credible
testimony in the record, I conclude Quesenberry had more
experience than Humphreys at performing work related to the
tool and die maker job. This does not, however, conclude the
question of comparative qualifications. Dangerfield evidently
considered Humphreys as well qualified for the tool and die
apprentice job as Quesenberry, and Wirt, the union steward
handling Humphreys’ grievance, told Dangerfield he agreed
with Humphreys’ assessment that he, Humphreys, was the
most qualified applicant. In addition to his on-the-job experi-
ence for the Employer, Humphreys had acquired more than
half of the 45 credits in the program from the New River
Community College by successfully completing courses in
the trainee curriculum set forth above, as well as additional
machine shop courses not included in the trainee program.
The mechanical courses he took at New River Community
College included many hours of instruction and hands-on
laboratory training on hand tools, drill presses, lathes, milling
machines and grinders. The Employer’s position, as ex-
pressed by Edmonds, is that Humphreys would have received
credit for this education and training if he had been the suc-
cessful bidder. Edmonds knew when bids were solicited that
Humphreys was taking courses at New River, and states that
eduction was not a determining factor because Humphrey did
not get the job. This latter statement does not explain wheth-
er Humphreys’ education and training at New River Commu-
nity College was evaluated as article XIII, section 13 and ex-
hibit B, section 2 to the contract seems to require preliminary
to selection of applicants for training, nor does it explain
whether or not this education and training were even consid-
ered by Dangerfield. So far as the record shows, Edmonds
has no certain knowledge regarding exactly what evidence
Dangerfield scrutinized for each applicant prior to his selec-
tion of Quesenberry.
EXHIBIT ‘‘A’’
BLACKSBURG PLANT
CLASSIFICATION WAGE STRUCTURE
EFF. 03–19–84
LABOR
GRADE LABOR CODE JOB CLASSIFICATION JOB RATE TOP START RATE STEP 1
1 LOlAl JANITOR 7.07 6.87
2 LO2Bl FINAL PROCESSII 7.41 7.11
LO2B2 TIN PLATER
3 LO3Cl MAT. HAND. (AREA) 7.52 7.22
LO3C2 LEAD PLATER
LO3C3 CRIB ATTEND.
LO3C4 MAINT. HELPER
LO3C5 LINE INSPECTOR
LO3C6 SHIPPER/RECEIVER
4 LO4DA MACHINE OPER. II 7.72 7.32
LO4DS MAT. HAND. (S/R)
LO4D3 MISC. MACH. OPER.
LO5El MACH. OPER. I 8.10 7.70
LO5E2 MAT. PREP. OPER.
LO5E3 OILER
6 LO6Fl PLATER CONTROL 8.29 7.89
LO6F2 BONDING CONTROL
LO6F3 TOOL EXPEDITER
7 LO7Gl GENERAL SET-UP 8.47 8.07
8 LO8Hl MAINTENANCE II 8.63 8.03
LO8H2 TOOL CUTTER GRINDER
9 LO911 TOOL GRINDER 9.39 8.79
10 LlOJl MAINTENANCE I 10.24 9.64
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Art. XIV, sec. 1.
11 Mack-Wayne II, supra 820.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
EXHIBIT ‘‘A’’—Continued
BLACKSBURG PLANT
CLASSIFICATION WAGE STRUCTURE
EFF. 03–19–84
LABOR
GRADE LABOR CODE JOB CLASSIFICATION JOB RATE TOP START RATE STEP 1
LllKl TOOL & DIE MAKER 10.51 9.91
LllK2 ELECTRICIAN
The evidence does not fairly explain (1) why Humphreys
was not interviewed, (2) whether, before rejecting Hum-
phreys’ bid for tool and die trainee, the Employer considered
and evaluated his education and training acquired at New
River Community College as the contract’s exhibit B, sec-
tions 2 and 3 appears to require, or (3) whether a fair evalua-
tion of that education and training added to his job experi-
ence would show his qualifications to be superior to those
of Quesenberry, nor (4) is it firmly established in the record
that the Employer’s selection of Dangerfield was not arbi-
trary. In this latter connection, if, as Dangerfield stated, all
candidates were equally qualified, why was not a candidate
senior to Quesenberry selected? All of the foregoing con-
cerns are topics that might well be raised through the griev-
ance procedure, which includes an arbitration provision, to
ascertain whether the Employer’s action was in accord with
provisions of the collective -bargaining agreement. The con-
tract provides10 that an alleged grievance may involve one or
both of the following:
1. A question as to fact.
2. A question as to the meaning, interpretation, or
application of the terms of this agreement.
Humphreys’ grievance regarding the tool and die trainee job
involves questions of fact and questions of application of the
contract which remain unresolved. Respondent Union has not
shown by a preponderance of the evidence that Humphreys’
grievance protesting Quesenberry’s selection is not meri-
torious. This grievance may have ultimately been denied if
pursued through the contractual procedure, but the evidence
before me does not so show.
Turning to the question of the tool grinder job, whether it
was actually discussed or not it was a subject of the written
grievance even though inserted after the initial writing of the
grievance by Humphreys. It was on the document when Ed-
monds rejected the grievance, and therefore was denied. Arti-
cle XIII, section 13 requires jobs classified above level 5 be
posted for bids. Tool grinder was a level 9 job. There is no
evidence, other than Humphreys’ vague reference to ‘‘both
lists,’’ that the tool grinder vacancy was posted for bids as
the contract requires. Accordingly, I conclude Respondent
Union has not proved the tool grinder grievance is not meri-
torious.
THE REMEDY
Respondent Union has not met its burden of proving Hum-
phreys’ grievance lacks merit, and therefore will be ordered
to make him whole for wages lost as a result of Respond-
ent’s unlawful refusal to further process his grievance, by
paying him the difference between the wages he earned and
the wages Quesenberry earned commencing January 2, 1984,
and ending March 20, 1989, when Quesenberry ceased being
a trainee and became a tool and die maker. I do not think
the Respondent Unions’ obligation to provide a meaningful
remedy for its unfair labor practice requires it to make Hum-
phreys whole for the wage differential between his pay as a
tool grinder and Quesenberry’s pay as a tool and die maker
since March 20, 1989. If the grievance related only to the
tool grinder job, the backpay period would reasonably termi-
nate on August 4, 1986, when Humphreys was promoted to
that job, but it does not. To speculatively conclude Hum-
phreys would have successfully completed the training, be-
came a tool and die maker, and continues to incur backpay
entitlement until some undetermined date in the future, seems
to me an uncertain and rather severe extension of the
Union’s obligation to a punitive rather than a make-whole
remedy. It is appropriate in cases such as this that the uncer-
tainty fall on the wrongdoer union,11 but the extension of
backpay liability into the unforeseeable future until such time
as Humphreys may become a tool and die maker strikes me
as unreasonable. For the foregoing reasons, noting that any
reimbursement due him if he had only prevailed on the tool
grinder grievance would have ended when he became a tool
grinder, and because I believe such a remedy effectuates the
purposes of the Act and fairly compensates Humphreys for
losses sustained, I shall recommend the backpay period ter-
minate on the date Quesenberry became a tool and die
maker.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, International Association of Machinists
and Aerospace Workers, District 186, Lodge 2533, AFL–
CIO, Blacksburg, Virginia, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Failing and refusing to process the grievances of Her-
man R. Humphreys, or any other employee, or processing
such grievance in a perfunctory manner, without reason or
for arbitrary or invidious reasons.
(b) Informing employees that it would refuse to handle
grievances of any employee that was not a member of the
Union.
675MACHINISTS LODGE 2533 (FEDERAL MOGUL)
13 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(c) Informing employees that Respondent would not rep-
resent employees who were nonmembers of the Union.
(d) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Herman R. Humphreys whole for wages lost
during the period January 2, 1984, to March 20, 1989, as a
result of Respondent’s unfair labor practices, plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(b) Post at its business office in Roanoke, Virginia, and at
the premises of Federal Mogul Corporation in Blacksburg,
Virginia, if the Employer is willing, and at all other places
where notices to members are customarily posted, copies of
the attached notice marked ‘‘Appendix.’’13 Copies of the no-
tice on forms provided by the Regional Director for Region
5, after being duly signed by Respondent’s representative,
shall be posted by it in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.