Occidental Chemical Corp.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 623 (N.L.R.B. 1989)

OCCIDENTAL CHEMICAL CORP
Occidental Chemical Corporation and John Masic
Niagara Hooker Employees ' Union and John Masic.
Cases 3-CA-13334 and 3-CB-4934
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 27, 1987, Administrative Law
Judge Thomas E. Bracken issued the attached deci-
sion. The Respondents' filed exceptions and sup-
porting briefs, and the General Counsel filed a
reply brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, 2 and
conclusions only to the extent consistent with this
Decision and Order.3
The judge found that by filing grievances on
behalf of Helminiak, Baird, Moore, and Kirsch and
demanding their recall, and by refusing to process
grievances on behalf of J. Masic, L. Masic, Barnar-
done, and House, Respondent Union breached its
duty of fair representation and violated Section
8(b)(1)(A) and (2) of the Act. We agree. We find
compelling the evidence revealing the Union's ani-
mosity towards J. Masic, L. Masic, Bernardone,
and House as nonmembers of the Union who had
received a cash payment from the Respondent
Union and the Respondent Employer in settlement
of unfair labor practice charges involving their De-
cember 1984 layoff. We note in particular that, ac-
cording to the credited testimony, when John
Masic asked Union President La Macchia if the
Union would file grievances on behalf of Masic
and the other nonmember employees, La Macchia
said the Union would be "crazy" to do so and
pointed out that Masic and the employees for
' The Respondents requested oral argument The requests are denied as
the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings
9 Interest shall be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the "short-term Federal rate" for the under-
payment of taxes as set out in the 1986 amendment to 26 U S C § 6621
Interest on amounts accrued prior to January 1, 1987 (the effective date
of the 1986 amendment to 26 U S C § 6621), shall be computed in ac-
cordance with Florida Steel Corp, 231 NLRB 651 (1977)
623
whom he spoke were "not members in good stand-
ing," had "never paid any Union dues," and "as a
matter of fact," had "taken money from the
Union." La Macchia was an authoritative spokes-
man for the Union on its reasons for not pressing
these employees' grievances; he did not testify at
the hearing; and, contrary to our dissenting col-
league, we are unwilling, in the face of such direct
evidence of motive, to infer that the Union was
acting fairly and without hostility in its choice of
who should be the beneficiary of the Union's griev-
ance processing.
The judge also found that by yielding to the
pressure of the grievances filed by the Union and
recalling Helminiak, Baird, Moore, and Kirsch in-
stead of J. Masic, L. Masic, Bernardone, and
House, Respondent Employer violated Section
8(a)(3) and (1) of the Act. We disagree.
In July 1985, the Respondent Employer had one
position open at its plant. Because five employees
held the highest seniority date on the recall list, it
conducted a lottery for the one available position.
The resulting order of recall for these five lottery
participants was Gillespie, Helminiak, Baird,
Moore, and Gruarin. On July 29, 1985, the Re-
spondent Employer recalled Gillespie who was laid
off again at a later date.
In January and February 1986, the Respondents
discussed the situation of the four lottery losers-
Helminiak, Baird, Moore, and Gruarin. These em-
ployees had not worked since January 1984. The
Respondent Employer took the position that their
recall rights had expired pursuant to article 3, sec-
tion 3, of the contract, which stated: "An employee
will lose his seniority if he has performed no active
work at the plant for two years." The Respondent
Union, however, maintained that employees with
the same seniority dates should have the same
recall rights and cited article 3, section 6, of the
contract, which stated:
Preferred consideration will be given to se-
niority in case of reduction in force from a
shop or department and subsequent re-employ-
ment provided ability and other qualifications
are relatively equal.
Employees laid off from the plant due to a
reduction in force will retain their original po-
sition on the re-employment list regardless of
date of layoff.
The Respondent Union's position was that Gilles-
pie's recall rights, unexpired because he won the
July 1985 lottery and was recalled, should be
common to the four lottery losers because all five
employees had the same seniority date.
294 NLRB No. 46
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On June 2, 1986, the Respondent Employer
again recalled Gillespie as the employee with the
highest seniority on the recall list, and advised the
Respondent Union and J. Masic, L. Masic, Bernar-
done, and House that these four employees were
next in line for recall. On June 26 and July 1, 1986,
the Union filed grievances on behalf of the July
1985 lottery losers claiming that they should have
the same recall rights as Gillespie.
Shortly after July 1, 1986, the Respondent Union
discovered that Gruarin, the fifth placed lottery
participant, had greater seniority than the other lot-
tery participants, and should have been recalled in
July 1985 and June 1986 instead of Gillespie.
Having been apprised of this mistake with the July
1985 lottery, the Respondent Employer then dis-
covered that Kirsch, who had the same seniority
date as the lottery participants, had been over-
looked and had not been included in the July 1985
lottery.
On July 3, 1986, the Respondent Employer re-
called all those connected with the flawed 1985 lot-
tery-Helminiak, Baird, Moore, Gruarin, and
Kirsch. Four days later, John Masic, one of the
four employees who had been advised they were
next in line for recall after Gillespie, called the Re-
spondent, Employer's personnel office and learned
about the recall of the lottery participants and
Kirsch. In succeeding days, inquiries to the Union
concerning why the Union had grieved on behalf
of the lottery participants to the detriment of these
four employees elicited the statements that demon-
strated the Respondent Union's animus against the
employees because of their lack of union member-
ship and their having "taken money" from the
Union in an earlier unfair labor practice settlement.
In finding that the Respondent Employer's recall
of the lottery participants violated Section 8(a)(3)
and (1) of the Act, the judge cited the Respondent
Employer's precipitous change in its position that
the recall rights of the lottery participants had ex-
pired because they had not worked for 2 years, its
continued adherence to this position in all other re-
spects; its failure to submit the issue to arbitration,
and the lack of equity, fairness, and logic in its
recall of the lottery participants as a solution to the
faulty July 1985 lottery. The judge inferred the Re-
spondent Employer's discriminatory intent from
the natural and foreseeable consequences of the Re-
spondent Union's conduct, which showed the
Union's power to make the Employer reverse its
position.
The judge misstated the applicable test for Re-
spondent Employer's misconduct. We must deter-
mine whether the Respondent Employer had rea-
sonable grounds for believing that the Respondent
Union's request to recall the lottery participants in-
stead of J. Masic, L. Masic, Bernardone, and House
was unlawful.4
The evidence shows that the Respondent Em-
ployer had valid reasons for changing its position
and recalling the lottery participants. As recounted
above, shortly after the Respondent Union filed the
grievances on June 26 and July 1, 1986, on behalf
of the lottery losers, it was discovered that
Gruarin, the fifth-place lottery participant, had
greater seniority than the other lottery participants
and should have been recalled in July 1985 and
June 1986 instead of Gillespie. It was also discov-
ered that Kirsch, who had the same seniority date
as the July 1985 lottery participants, had been
overlooked and had not been included in the lot-
tery. This belated discovery of serious flaws in the
conduct of the July 1985 lottery triggered exten-
sive discussion about how to rectify the mistakes
between the Respondent Employer's supervisors of
labor relations, Dennis O'Neal, and his superior,
Employee Relations Manager Mary Roberts. As
O'Neal testified, he and Roberts decided that "the
right thing to do to set this whole mistake or mess
straight was to recall these five people," and that
"but for the error in regard to Gruarin and
Kirsch," the lottery participants would never have
been recalled.5
Moreover, unlike the judge, we do not find the
Respondent Union's contractual argument so weak
as to indicate wrongful collusion between the Re-
spondents. When Gillespie was recalled on June 2,
1986, the recall rights of the lottery losers were un-
certain. The Respondent Employer maintained that
their recall rights had expired because they had not
worked for more than 2 years. The Respondent
Union maintained that they should have the same
recall rights as Gillespie because they all had the
same seniority date. The situation was novel. The
combination of the July 1985 lottery and the pas-
sage of time seemed to have imposed inequitable
results on employees with the same seniority date.
In June 1986 Gillespie was working while Helmin-
iak, Baird, Moore, and Gruarin might be without
chance of recall. In the circumstances, we cannot
find that the Respondent Union's contractual
claims would have apprised the Respondent Em-
ployer of the Respondent Union's unlawful pur-
pose. Rather, both Respondents relied on different
4 See Valley Cabinet & Mfg, 253 NLRB 98, 99 (1980), Allied Mainte-
nance Co, 196 NLRB 566, 571 (1972)
5 We do not rely on the judge' s assessment that the Respondent Em-
ployer's solution for the faulty July 1985 lottery lacked "equity, fairness
or logic" in some respects What the judge may or may not believe to be
prudent and equitable does not ultimately determine the Respondent Em-
ployer's liability under Sec 8(a)(3) and (1) of the Act
OCCIDENTAL CHEMICAL CORP
sections of the contract to arrive at contrary posi-
tions on a novel issue.
Finally, the evidence does not show that the Re-
spondent Employer was aware of the Respondent
Union's animosity towards J. Masic, L. Masic, Ber-
nardone, and House stemming from their earlier
unfair labor practice charges and the 1985 settle-
ment . The Respondent Employer was unaware that
the Respondent Union President La Macchia had
said that these four employees should take their
problems to the Labor Board, as they had done
before, and that they not only were not members
of the Respondent Union but, they had taken
money from it. And there is no evidence that the
Respondent Employer expressed similar hostility
towards J. Masic, L. Masic, Bernardone, and
House because of the Respondent's proportional
share of the costs incurred in the 1985 settlement of
their earlier unfair labor practice charges.
Accordingly, the Respondent Employer had no
reasonable grounds for believing that the Respond-
ent Union's request to recall the lottery participants
instead of J. Masic, L. Masic, Bernardone, and
House was unlawful. Therefore, the Respondent
Employer did not acquiesce in the Respondent
Union's unlawful conduct by recalling the lottery
participants. Rather, we find the Respondent Em-
ployer recalled the lottery participants as its solu-
tion for the faulty July 1985 lottery.
We shall dismiss the 8(a)(3) and (1) allegation of
the complaint.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Niagara Hooker Employees' Union, Ni-
agara Falls, New, York, its officers, agents, and rep-
resentatives, shall take the action set forth in the
Order as modified.
1. Insert the following as section A, paragraph
2(a).
"(a) Make John Masic, Louis Masic, Mario Bar-
nardone, and Derek House whole for wages not
paid to them as a result of the conduct set forth
herein, and in the manner provided for in the
remedy section of this Decision."
2. Delete section B.
3. Substitute the attached Notice to Members for
that in the judge's decision and delete the Notice to
Employees.
IT IS FURTHER ORDERED that the complaint in
Case 3-CA-13334 is dismissed.
MEMBER CRACRAFT, dissenting.
Contrary to my colleagues , I would reverse the
judge and find that the Union did not breach its
625
duty of fair representation by filing grievances on
behalf of Helminiak, Baird, Moore, and Kirsch and
demanding their recall, and by refusing to process
grievances on behalf of housekeeping employees J.
Masic, L. Masic, Bernardone, and House. The duty
of fair representation requires that a grievance filed
by a bargaining unit member, whether union
member or nonmember, not be processed by the
union in an arbitrary, discriminatory, perfunctory,
or bad-faith manner. American Postal Workers
(Postal Service), 277 NLRB 541 fn. 1 (1985) (citing
Vaca v. Sipes, 386 U.S. 171 (1967)). In this case
there is evidence that the Union harbored animus
against the housekeeping employees based on their
nonmember status prior to October 1984, and their
receipt of backpay in settlement of prior unfair
labor practice charges concerning their December
1984 discharges. Despite this animus, .I would not
find that the Union acted discriminatorily in refus-
ing to process grievances on behalf of the house-
keeping employees in June 1986. Rather, under the
circumstances of this case, the Union's conduct
with regard to the processing of grievances was
reasonable and was based on objective consider-
ations.
In January and February 1986 the Employer dis-
cussed with the Union its position that under arti-
cle 3, section 3 of the parties' collective-bargaining
agreement, the recall rights of the employees who
had lost the July 1985 lottery expired as of January
24, 1986. Significantly, in June 1986, when the Em-
ployer informed the Union of its intent to recall the
housekeeping employees from layoff, the Union ini-
tially took the position that the Employer should
recall all employees on the recall list-i.e., the em-
ployees who lost the lottery and the housekeeping
employees.
After the Employer indicated that • it did not
have enough job vacancies to do so, however, the
Union elected to file grievances on behalf of the
employees who had been associated with the
flawed lottery in order to further its position, first
expressed in 1985, that their recall rights should be
renewed each time that Gillespie, the employee
who had won the lottery, was recalled. Thus, the
Union contended that those employees with the
same seniority date as Gillespie should not suffer
the loss of their recall rights sooner than Gillespie
merely by virtue of their misfortune in having lost
the lottery. Contrary to the judge, and notwith-
standing the absence of a document specifically
titled a "reemployment list," I do not find that arti-
cle 3, section 6 of the contract is "too' slim a reed
to be relied on by the Union" in support of its posi-
tion. Rather, faced with a conflict between the as-
sertion in article 3, section 6 that employees laid off
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
due to a reduction in force would retain their origi-
nal position on the reemployment list and the 2-
year limitation on reinstatement rights in article 3,
section 3, the Union exercised a reasonable choice
and presented a legitimate interpretation of the
contract. See Upstate Coca Cola, 283 NLRB 532,
535-536 (1987).
Moreover, in addition to its concern that lottery
participants with the same seniority dates would
lose their recall rights, the Union's position with
respect to the processing of grievances was also
based on what it termed "a broader seniority
issue." In this regard, the Union was convinced
that if it did not process grievances on behalf of
the lottery participants, then those employees-
each having a seniority date of June 8, 1982-
would lose their recall rights to the housekeeping
employees with seniority' dates of October 1, 1984.
This unusual situation whereby the more senior
employees were laid off prior to the less senior
housekeeping employees-and therefore were in a
position to lose their recall rights sooner-was due
to the fact that the housekeeping employees were
not part of the unit when the layoffs originally oc-
curred, and were assigned common seniority and
layoff dates pursuant to the terms of a settlement
agreement. Under the circumstances, I do not think
that the Union violated its duty of fair representa-
tion by processing grievances on behalf of the lot-
tery participants and by refusing to assert an incon-
sistent position on behalf of the housekeeping em-
ployees.
Having found that the Union did not violate Sec-
tion 8(b)(1)(A) and (2) of the Act by processing
grievances in an unlawful manner, I would there-
fore find that the Employer did not violate Section
8(a)(3) by yielding to the pressure of the grievances
filed. Accordingly, I would dismiss the complaint.
APPENDIX
NOTICE To MEMBERS
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to adequately handle and
process the grievances of John Masic, Louis Masic,
Mario Bernardone, and Derek House in a fair and
impartial manner.
WE WILL NOT cause Occidental Petroleum Com-
pany to discriminate against John Masic, Louis
Masic, Mario Bernardone, and Derek House by
pressuring Occidental Chemical Corporation to
recall members of the Union in preference to John
Masic, Louis Masic, Mario Bernardone, and Derek
House.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make John Masic, Louis Masic, Mario
Bernardone, and Derek House whole for wages not
paid to them as a result of the discrimination
against them, plus interest.
WE WILL advance the seniority dates of John
Masic, Louis Masic, Mario Bernardone, and Derek
House ahead of the seniority dates of David Baird
and Richard Moore on any pertinent union
records.
NIAGARA HOOKER EMPLOYEES' UNION
Mark G. Pearce, Esq, for the General Counsel
Patrick J. Berrigan, Esq., of Niagara Falls, New York, for
the Respondent Company.
John R. LoGalbo, Esq. (Lipsitz, Green, Fahrinqer, Roll,
Schuller & James), of Buffalo, New York, for the Re-
spondent Union.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge.
This case was tried at Buffalo, New York, on 22 and 23
October and 24 and 25 November ' 1986. The original
charge in Case 3-CA-13334 was filed by John Masic on
14 July 1986, and amended 19 August 1986. The original
charge in Case 3-CB-4934 was filed by John Masic on
14 July 1986 and amended 19 August 1986.1 Answers
were duly filed by Respondent Company Occidental
Chemical Corporation (Occidental, Respondent Compa-
ny, or Company) and Niagara Hooker Employees' Union
(Respondent Union or Union). The primary issue in Case
3-CB-4934 is whether the Respondent Union violated
Section 8(b)(1) and (2) of the National Labor Relations
Act by refusing to process grievances on behalf 'of John
Masic, Louis Masic, Mario Bernardone, and Derek
House concerning their layoffs and failure to recall by
their employer, Respondent Company. The primary issue
in Case 3-CA-13334 is whether the Respondent Compa-
ny violated Section 8(a)(1) and (3) of the Act by recall-
ing five employees from layoff in response to grievances
filed by Respondent Union, instead of recalling employ-
ees John Masic, Louis Masic, Mario Bernardone, and
Derek House.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Respondent
Company, and Respondent Union, I make the following2
' All dates are in 1986 unless otherwise stated
2 By letter dated 5 January 1987, Respondent Company requested that
the Advice Memoranda in Lo Dal Inc and Teamsters Local 328, Cases
30-CA-9263 and 30 -CB-2527, 22 August 1986, 123 LRRM 1358, be in-
Continued
OCCIDENTAL CHEMICAL CORP. 627
FINDINGS OF FACT
1. JURISDICTION
The Company, a corporation with an office and place
of business in Niagara Falls, New York, is engaged in the
manufacture and nonretail sale and distribution of chemi-
cals and related products. During the past 12 months it
purchased and received at this facility products, goods
and materials valued in excess of $50,000 directly from
points outside the State of New York. The Company
admits, and I find, that the Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It. THE LABOR ORGANIZATION
in the housekeeping department were paid at rates sub-
stantially below the scale paid to union members for
other plant jobs.
As can be expected , several clauses of the collective-
bargaining agreement (G C. Exh 2) are of vital impor-
tance to the resolution of this case . These sections are set
forth as follows:
Article III Seniority
Section 3:
(a) An employee will lose his seniority if
(3) He has performed no active work at the plant
for two (2) years unless due to continuous Work-
man's Compensation disability.
Niagara Hooker Employees ' Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts3
The Respondent Union is, and has been since 1956, the
exclusive representative for the purpose of collective bar-
gaining of the production and maintenance employees of
the Respondent Company, employees at the Company's
plant in Niagara Falls. These employees are currently
covered by a collective-bargaining agreement between
the Respondent Union and the Respondent Company
which was entered into 1 October 1984, and is to termi-
nate on 30 September 1987. The chief officers of the
Union were Anthony La Macchia, president, John Fiori
Sr., vice president; Charles L. Walker, treasurer; and Mi-
chael A. Rizzo, secretary.4 These four executive officers
constituted the Union Council. They were employees of
the Company and performed their union duties on an as-
needed basis, for which they received a small annual
compensation from the Union.
The Niagara Falls facility consists of a large complex
of plants, employing about 600 employees who are mem-
bers of the Union In 1979 or early 1980, Occidental
started up a pilot plant called Energy From Waste
(EFW). The purpose of this pilot plant was to generate
electrical power by the burning of garbage In the early
stages of the EFW plant's operation, the work force con-
sisted of its own enployees, as well as employees of out-
side contractors, such as Mobil and Browning Ferris In-
dustries. The Respondent Union wanted to represent all
the employees working in the EFW plant, and desired
that outside contractors be eliminated from it so that its
members would have the jobs available in that pilot
plant. One of the departments in the pilot plant was the
housekeeping department, among whose duties was the
placing of garbage back on the conveyor belts after it
had fallen off. The work was unskilled and the workers
corporated in its brief No opposition having been received to this re-
quest , the motion is granted and it is received into the record as R Emp
Exh 7
"The findings made herein are based on substantially uncontradicted
testimony and documentary evidence In the few instances in which wit-
nesses have different versions of material events in issue , I resolved those
credibility issues at that point in my decision
4 In June 1986, Rizzo became the vice president
Section 6. Preferred consideration will be given
to seniority in case of reduction in force from a
shop or department and subsequent re-employment
provided ability and other qualifications are rela-
tively equal.
Employees laid off from the plant due to a reduc-
tion in force will retain their original position on
the re-employment list reqardless of date of layoff.
Two other clauses contained in article III are also of
interest:
Section 8. The existing official seniority list is
hereby confirmed.
Section 9. The Company will revise the seniority
list monthly and make it available at reasonable
times in the office of the Industrial Relations Ad-
ministrator for examination by authorized represent-
atives of the Union.5
1 Apprentice employees
At some time not disclosed in the record, Respondent
Employer entered into an agreement with the Union cap-
tioned "Letter of Agreement-Apprentice Employees."
This agreement provided that whenever employees were
hired in the housekeeping department they would be
called the new classification of apprentice employees,
with duties of cleaning and sweeping. Although their
hourly rate was increased to the minimum rate set forth
in the collective-bargaining agreement, $4 an hour, they
were not entitled to any of the many fringe benefits pro-
vided for in the parties' basic agreement. No more than
30 employees could be employed as apprentices, nor
could more than 15 be scheduled to work on any one
work shift. The agreement also provides that
Apprentice employee will be given preferred con-
sideration or full time employment for jobs within
the Bargaining Unit, provided he/she has a good
work record and is qualified to perform the avail-
able work
s The clauses contained in sees 8 and 9 were apparently holdovers
from some prior collective-bargaining agreement The record reveals that
there was no official seniority list It therefore could not be revised
monthly nor could it be made available to union officials
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Among other items, the agreement also provided that
"Any full time employees will, prior to being laid off, be
offered the option to work as an Apprentice Employee-
in the place of an Apprentice Employee, based upon the
full time employee's seniority." Additionally, the agree-
ment also provided that "-an Apprentice Employee
shall become and remain a member in good standing of
the Union upon the completion of six months of employ-
ment." By its express terms the apprentice agreement ex-
pired on 30 September 1983.
On 14 September 1983, Respondent Company hired
John Masic (J. Masic), his father Louis Masic (L. Masic),
Mario Bernardone (Bernardone), and Derek House
(House)6 to work as apprentice employees in the house-
keeping department of the EFW facility.7 Two weeks
after they commenced work the apprentice employee
agreement terminated by its own term.
Following the expiration of the apprentice agreement,
the Union sought to obtain by negotiation substantially
higher wages and standardized fringe benefits for the ap-
prentice employees. When the Company refused to agree
with the Union's proposal, by a letter dated 8 December
1983, the Union wrote to Supervisor of Labor Relations
David Fabrizio and requested that apprentice employees
be removed from the EFW plant unless a new agreement
was reached by 31 January 1984. Vice President Rizzo
testified credibly that after the expiration of the appren-
tice agreement the Union considered the apprentice em-
ployees, including M-M-B&H, to be "outside contrac-
tors," as they were termed by Fabrizio, and not members
of the bargaining unit.
B The Events of 1984
1 The layoffs
In January 1984, plant area 3 was closed, and approxi-
mately 75 members of the Union were laid off by seniori-
ty, as provided in the basic agreement. As Rizzo candid-
ly testified, some of the laid-off union members, includ-
ing David Baird, came to the union office, inquiring as to
why they could not bump into the housekeeping jobs
due to their greater seniority. Rizzo advised them that
this could not be done as the Union did not recognize
those jobs as being bargaining unit jobs, and these com-
plaining employees then accepted their layoffs.
Among the employees laid off on 24 January 1984
were Frank Gruarin, Paul Gillespie, Dorothy Helminiak,
David Baird, Richard Moore, and Rodney Kirsch. All
had seniority dates superior to those of M-M-B&H.
These four employees, M-M-B&H, continued to work in
the housekeeping department for the next 11 months of
1984. Bernardone testified without contradiction that on
several occasions during this period of time, he was
called a scab by Union Steward Bill Klingensmith He
described the name-calling as follows:
6 These four employees are sometimes referred to collectively as M-M-
B&H
I An undisclosed number of employees had also been hired under this
agreement, some of whom subsequently became members of the Union
and transferred to work as demolition laborers
I would go to a lunch room where there was a lot
of people there and I would walk right in and he
would look at me and then hit his leg with his arm
and very loudly would say, I got myself another
scab.
Bernardone also testified as to one other incident of
name-calling. This time he was running bases in a softball
game when he heard Klingensmith again call him a scab.
Rizzo corroborated the fact that Klingensmith used the
term scab in one conversation with him in January 1984.
Klingensmith came to the union office and asked Rizzo
about M-M-B&H, and wanted to know "what the Union
was going to do about the four scabs as he called them "
Rizzo informed the steward that they were trying to
make a living like anyone else, and they had not had
enough time to become union members.
2. The labor relations department
In June 1984, there occurred a shakeup of the labor re-
lations staff at the Niagara Falls plant. Fabrizio, who had
negotiated for the Company with the Union about the
apprentice agreement, was discharged by Wayne Hell-
man, the manager of employee relations. Shortly thereaf-
ter, Hellman resigned to go with another employer. To
fill this breach the Company transferred Richard
Karcher from its Ohio plant to the Niagara Falls plant.
Karcher had served as supervisor of employee relations
since 1977 at the Ohio plant and assumed the same title
at the Niagara Falls plant. To fill Hellman's position,
Mary Roberts, a veteran of 12 years of general personnel
work at the Niagara Falls plant, was promoted from her
position of manager of compensation and benefits to that
of manager of employee relations.
Karcher found the office records in disarray and could
not locate others Shortly after he arrived he was unable
to locate a seniority list, an essential to the performance
of his duties. He then contacted the Union Council and
they supplied him with a list he termed a "seniority
list."8 Thereafter, Karcher used this list in his day-to-day
administration of the contract until he was transferred in
January 1986.
The then-existing collective-bargaining agreement ter-
minated on 30 September 1984. Prior to this date the
Company and the Union engaged in negotiations which
resulted in a comprehensive Stipulation of Agreement ef-
fective 1 October 1984 that increased wages, pensions,
and affected other conditions of employment One of the
provisions agreed to in the stipulation was that effective
1 October 1984, an EFW housekeeper rate of $8 an hour
was to be established, and Respondent Union's members
would be employed in those positions. Phaseout was to
occur shortly after 1 October 1984.
s This list was a mini-page IBM computer printout of the employees of
the Niagara Falls facility, and was marked for identification as G C Exh
6, as it was not used for reference to specific persons or dates Two pages
of this lengthy document contained the names and miscellaneous data
about the employees relative to this case It had two captions, the first
line being "Reporting and Management Systems" and the second
"NHEU Employee Seniority Listing as of 10/07/83 " These two pages
were received into evidence as G C Exh 4, and were extensively re-
ferred to during the course of the hearing
OCCIDENTAL CHEMICAL CORP
3. The visit to the union office
In late November, Bernardone and L. Masic went to
the Union's office on their lunchbreak and had a conver-
sation with La Macchia, with Rizzo being present Ber-
nardone asked the union president for the original agree-
ment covering their housekeeping jobs, as he wanted to
prove to some EFW people that M-M-B&H were not
scabs as they were considered to be by union people, es-
pecially the union representative 9 Bernardone described
La Macchia's reply as follows:
And Mr. LaMacchia said he understand our situa-
tion, but at the same time that we should try to un-
derstand people in his position. There was people
on the layoff list and we were still working and he
felt that the people on the layoff list should be
called back and then we should be hired.
Bernardone further testified without contradiction that
La Macchia said it did not make any sense for M-M-
B&H to still be working while other people were on
layoff.
4. The termination of M-M-B&H
J. Masic testified that about 3 weeks prior to his termi-
nation on 6 December 1984, he, with L. Masic, Bernar-
done, and House met with Karcher in his office. He de-
scribed what happened as follows-
-he told us that we would be going out the door
and bargaining unit employees would be taking our
jobs. At that point in time, he took out four applica-
tions, went to hand them to us and told us that we
would be recalled under preferred consideration.
Karcher admitted that he talked to M-M-B&H in De-
cember before they were terminated, but was not sure of
the date of the conversation. He did recall that he told
them they were considered outside contractors and had
no right of recall. He also told them that they had been
good employees and would receive preferential treat-
ment after the recall list was exhausted. When M-M-
B&H interposed that Karcher might be gone from his
position when such a time arrived, and his successor not
be aware of their status with the Company, he promised
to put a note in each of their personnel files containing
such information By a handwritten memo dated 6 De-
cember 1984, Karcher inserted in each of the four em-
ployees' files a note stating that each "will be considered
for NHEU openings subject'to recall list exhaustion" (R
Exh. 6).
On 6 December 1984, the two Masics and Bernardone
were discharged. i ° On the same date J. Masic went to
the Buffalo NLRB Regional Office and filed unfair labor
practice charges, Cases 3-CA-12500 and 3-CB-4613,
against the Company and the Union respectively. The
Regional Director for Region 3 issued a complaint in
these cases.
s The inference is clear that Bernardone was referring to shop steward
Klmgernsmnh
10 House was terminated on 18 January 1985
629
On 1 April 1985, the Respondents entered into a settle-
ment agreement with the Board and J. Masic, whereby
M-M-B&H were placed in Respondent Employer's recall
list and given the common layoff date of 1 April 1985
and a common seniority date of 1 October 1984. It was
further agreed to put M-M-B&H "on the recall list and
afford them the same rights as other laid off bargaining
unit employees." Each of the four employees received a
cash payment of $5500, made jointly by the Company
and the Union Respondents complied with the terms of
the settlement agreement and Cases 3-CA-12500 and 3-
CB-4613 were closed. As stipulated by all parties, com-
pliance with that settlement is not an issue in the instant
case
C. The Events of 1985
1. The 21 February adjustment of seniority dates
From the time that Karcher took over as supervisor of
labor relations in July 1984, he encountered continual
trouble in administering the contract because of provi-
sions that provided for adjusting seniority dates due to
layoffs. In reviewing company records he discovered
that after some employees were recalled that many of
the adjustments had been incorrectly made, or not made
at all. This resulted in inaccurate and conflicting seniori-
ty dates of various employees. In order to solve this
problem the Company and Union negotiated a one-page
agreement on 21 February 1985 The subject matter per-
tinent to this case read as follows.
To alleviate inaccurate seniority dates and inaccu-
rate adjustments resulting from layoffs of two (2)
years or less, seniority dates will not be adjusted
upon recall. Hires which occurred on or after Octo-
ber, 1, 1978 will maintain their hire date as their se-
niority date with adjustments continuing to be made
to all seniority dates pursuant to other contractual
procedures such as transfer from salary to hourly as
provided in Article III.
Following the signing of this agreement , the four top
union officials went to the administration office of the
Company and worked with Karcher to correct the se-
niority dates of the bargaining unit employees. For a
week they examined the bucket cards" of over 500 em-
ployees, and at times referred to papers in the actual per-
sonnel files of various individual employees for more
data.
2. The July 1985 lottery
In July 1985, the Company needed to recall one em-
ployee from layoff. Karcher referred to the seniority list
that he had secured from the Union in July 1984 to de-
termine which employee on layoff had the highest se-
niority. His examination disclosed that there were five
employees who had the identical seniority date of 8 June
1982. The same five had all been laid off on the same
'' A bucket card was a summary clerical record of an employee's
hiring, promotion, layoff, and other such personnel data
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day, 24 January 1984. These employees were Frank
Gruarin, Dorothy Helminiak, David Baird, Richard
Moore, and Paul Gillespie (sometimes collectively re-
ferred to as "the 1985 Lottery employees").
In several prior situations when employees with the
same seniority dates were involved in a recall situation,
Karcher had conducted a lottery to break the deadlock.
In this instance , Karcher, as he had done in the past, no-
tified the Union that he intended to conduct a lottery to
establish the priority in which each of the five employees
would be recalled. The Union requested that no lottery
be held and, as was its practice , demanded that all five
employees be recalled . Karcher refused to do so as he
had only one job opening.
The lottery was conducted by Karcher in the presence
of union officers . 12 Five slips of paper , each containing
the name of one of the five employees, were placed in a
box. The first slip pulled out by Karcher was that of Gil-
lespie and then , in order , Helminiak , Baird , Moore, and
Gruarin. Gillespie was recalled to work on 29 July 1985,
and continued to work until 27 September 1985 when he
was laid off again The other four lottery participants
were not offered recalls to work at any time prior to
July 1986.
3. The fall months
In mid-September 1985, Bernardone telephoned the
union office and requested to speak to the president, La
Macchia. The phone was answered by Secretary Rizzo
who, in turn, handed the phone to La Macchia. Bernar-
done asked the president how many names were on the
recall list and what the names were Bernardone de-
scribed the balance of the conversation as follows:
While I was talking with Mr. LaMacchia, there
was a voice in the background and very loudly said,
just tell them that there are about 40 people on the
recall list, and that's what Mr. LaMacchia told me
Then I asked Mr. LaMacchia to give me names on
that list and he refused . And he told me to call the
Labor Board, because that's where I went before.13
Rizzo testified that the Union Council was on its way
to a grievance meeting when Bernardone's call came in,
and its seniority lists had been locked in the safe. The
secretary admitted that he told La Macchia to tell Ber-
nardone that there were 30 to 40 on the recall list, a
number he then felt was accurate Karcher testified that
there were 10 to 12 employees on the recall list in No-
vember 1985, and that there could not have been 30 to
40 people on the recall list in September 1985.
In November 1985, J. Masic heard rumors about the
possibility of an incentive retirement plan being offered
to Respondent Company's hourly employees, with the
possible result that 10 employees would be recalled. He
also had heard that Bernardone had been told by the
Union that there were 35 to 40 on the recall list, a
number which he considered to be "ridiculous." J Masic
12 The five designated employees were not present as was the past pro-
cedure , since to have called them in would have delayed the process
13 Bernardone 's testimony was uncontradicted and I credit it La Mac-
chia was present in the courtroom during the hearing but did not testify
telephoned Karcher and introduced himself J Masic
then asked Karcher what were M-M-B&H ' s seniority
numbers on the recall list, since all four had started on
the same day. Karcher then stated that there were 11 to
14 on the recall list. J. Masic further testified:
I asked him about the retirement program. He
said that, you know , they're working on it; it's in
the. works. He told me to look for another job. I'd
never be coming back to work.
Q. Anything else said after that?
A I believe the conversation ended right there.
On cross-examination J. Masic admitted that he did not
take Karcher 's remark personally and did not attach
much significance to it. He also admitted that he did not
look for another job
Karcher testified that he told J. Masic there were 10
to 12 names on the recall list. In addition , he discussed
the possible early retirement incentive and the matter of
additional power being received by the plant which
would create additional jobs at the plant . Karcher also
testified that he never told J. Masic that he had better
look for another job because he would not be coming
back to work at Occidental, nor did he make any state-
ment to him that could have been so„ interpreted.
Karcher was 'a straightforward, convincing, frank wit-
ness, and I credit his testimony over that of J Masic
who was at times evasive, inconsistent , and emotional.
In late 1985 , Karcher learned that he was going to be
transferred to an Occidental plant in Tennessee and be
promoted to its position of manager of employee rela-
tions. He was to be replaced by Dennis O'Neal who had
worked at the Niagara Falls plant for over 11 years on
nonpersonnel work. To assist O'Neal in performing his
new job, Karcher had his staff prepare a list of the em-
ployees on layoff in January 1986. It was an informal
one-half page document with no caption , and was undat-
ed. The names of 17 employees were listed in the pur-
ported order of their seniority dates as follows:
Name Sen. Date Last Dept
Layoff
Date
Wojtowicz 8/24/81 EFW Military
Ferlito 9/8/81 EFW
Service
10/31/85
Vanoni 9/8/81 EFW 10/23/85
Gruarin 12/14/81 CHL/CAUS 1/24/84
Helminiak 1/4/82 PLT Engineering 1/24/84,
Baird 1/4/82 PLT Engineering 1/24/84
Moore 1/4/82 PLT Engineering 1/24/84`
Gillespie 1/4/82 EFW 9/29/85
Kirsch 1/4/82 PLT Engineering 1/24/84
Jones 12/15/78 EFW 8/26/83
Pugh 5/21/73 EFW 1/24/84
Lira 2/6/71 EFW 1/24/84
Masic 10/1/84 EFW 4/1/85
Bernardone 10/1/84 EFW 4/1/85
House 10/1/84 EFW 4/1/85
Masic 10/1/85 EFW 4/1/85
Shank D 1 Yr 9 Mos MAINT 4/1/85
(Salaried) 14
OCCIDENTAL CHEMICAL CORP 631
Karcher did not compare the various dates appearing on
General-Counsel's Exhibit 4, the October 7, 1983 seniori-
ty listing,' with the dates he set forth' on this list, General
Counsel's Exhibit 3, compiled in' December 1985. Nor
did' he adjust dates because of the lottery that had been
conducted 6 months previously. Karcher also did not
know at that time that record errors pertaining to
Gruarin and Kirsch had substantially affected that July
lottery.
D. The Events of 1986
1. January through May
O'Neal- took over as supervisor of labor relations in
early January, and Karcher worked with him for several
weeks during a period of transition. Karcher then moved
to Respondent Company's Tennessee plant; from which
at times he discussed various personnel matters with
O'Neal by telephone.
Sometime in January, prior to the 24th of the month,
O'Neal had a conversation with Lac Macchia and Rizzo,
in which the supervisor of labor relations told the union
officers that he wished he could get some laid-off em-
ployees back to work, as he was concerned that their
rights of recall were going to run out and the Company
would lose those people. The list of laid-off employees
(G.C. Exh: 3) showed that the recall rights of Gruarin,
Helminiak, -'Baird, Moore, and Kirsch were going to
expire on 24 January 1986, and I draw the conclusion
that these were the employees O'Neal was referring to.15
In early February, O'Neal had a 'second talk with the
union officials, about which employees continued to have
recall rights. Again he contended that as of 24 January
1986, the four lottery losers, Helminiak, Baird, Moore,
and Gruarin, had permanently lost their right of recall.16
The union officials denied that this was so, contending
that the recall rights of these four employees had not ex-
pired,
J. Masic knew that his brother-in-law, Antonio Gual-
tieri, had been laid off by Occidental on 24 January 1984,
so he reasoned that the recall rights of those employees,
who had been laid off at the same time as his brother-in-
law, would also have expired on 24 January 1986. By
agreement between J. Masic and Bernardone in Febru-
ary, Bernardone telephoned O'Neal. Bernardone inquired
.about M-M-B&H's status on the recall list O'Neal told
Bernardone that there were three people on the recall
list ahead of them, Vanoni, Ferlito, and Gillespie. Ber-
-nardone specifically inquired about the recall,rights of
Helminiak, Baird, Moore, Kirsch, and Gruarm (some-
times hereafter H-B-M-K&G), and O'Neal replied that
their names were not on the recall list. O'Neal' also told
Bernardone not to worry, that there would soon be three
14 This document was received into evidence as G C Exh "3 Various
pencil notations had been made thereon, but are not important to this
case
15 O'Neal showed this list (G C Exh 3) to La Macchia and Rizzo in
mid-January or early February He did not know if the Union had a copy
or not, t
is O'Neal's position was based on sec 3(a)(3) of art III that stated that
an employee will lose seniority if "He has'performed no active work at
the plant for two (2) years unless due to continuous Workman's Compen-
sation disability "
to five openings at the plant whether the 'Company re-
ceived the cheap hydropower or not. O'Neal recalled
this conversation with Bernardone but only had a gener-
al recollection of its contents. He did testify that his posi-
tion as to H-B-M-K&G was that they would not have
any recall'rights, as they had not worked since their 24
January 1984 layoff.
During this same period, O'Neal received phone calls
from other persons on layoff, including Ferlito,, Vanoni,
and Baird. O'Neal told Baird that there was a dispute be-
tween the Company and the Union about his recall
rights. It was the Company's position that Baird's recall
rights had expired and he would not be called back,
whereas the Union's position was that his recall rights
had not expired.
Bernardone made several other calls to the supervisor
of labor relations in the spring to inquire about recall,
but was always answered by Jean Robinson, the benefits
clerk. Bernardone - admitted that Robinson always re-
sponded to his questions, and supplied him with what-
ever information she had.
In May, the Company required additional employees.
O'Neal determined that Ferlito, Vanoni, and Gillespie
were the employees eligible to be recalled.17 Ferlito and
Vanoni were notified by mail and returned to work with-
out any objection by anyone. By a letter dated 2 June
1986, Gillespie was notified of his recall, and assigned
the starting work date of 9 June.
In late May or early June, J. Masic received a tele-
phone call from Baird who asked him if he had received
a recall letter. J Masic informed Baird that he had not
received one, and Baird commented that neither had he.
Baird did inform J. Masic that Gillespie had been called
back.
2 June through September
In early June, Bernardone and L Masic each called
the personnel office and were advised that M-M-B&H
were next on the recall list and could expect an early
return to work.18
After Gillespie was recalled, the Company actually
needed five or six more employees to fill open jobs. Be-
cause Helminiak, Baird, Moore, and Gruarin had not
worked for more than 2 years, O'Neal, as was his long-
stated position to the Union, regarded their recall rights
to have expired. O'Neal then advised the Union that the
next people to be recalled for the housekeeping openings
would be M-M-B&H. However, O'Neal did not precipi-
tantly recall these four employees as he knew that the
Union interpreted the contract differently than he did.
Thereafter, O'Neal and the Union Council had a series
of discussions on the subject. The Union contended that
the employees who placed second, third, fourth, and fifth
in the 1985 lottery 19 retained the.same recall rights that
Ferlito and Vanoni had top seniority on the layoff list, other than
one employee in military service Gillespie's recall was premised on his
having worked after winning the lottery, until 29 September 1985
18 The record does not disclose who was talked to in the personnel
office, but the inference is clear that it was Robinson
1s Helminiak, Baird, Moore, and Gruarin
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gillespie had , since they all had the same seniority date.
Therefore, they argued, when Gillespie was laid off in
September 1985, and his right of recall was thereby ex-
tended for 2 years, so also should the recall rights of the
employees who had participated in the lottery won by
Gillespie . Rizzo summed up the union position as fol-
lows:
We felt that the lottery shouldn 't put a person out
of a job . Anything that happened-Gillespie was
the winner so he got the work, so we felt that the
other people , that the losers of the lottery should
get their recall rights renewed with Mr. Gillespie's.
As the contractual basis for the Union 's position, Rizzo
relied on and pointed to the second paragraph of section
6, article III of the bargaining agreement:
Employees laid off from the plant due to the reduc-
tion in force will retain their original position on
the reemployment list regardless of date of lay off.
When O 'Neal rejected their position , the union offi-
cials urged him to call Karcher , believing that the
former supervisor would support their interpretation.
O'Neal called Karcher and discussed the problem.
Karcher agreed with O'Neal 's interpretation that the
four remaining lottery employees H-B-M & G had lost
their recall rights because of their continuous layoff of
more than 2 years.
On 26 June, the Union filed a written grievance with
the Company on behalf of Moore , and on 1 July filed
similar grievances for Baird and Helminiak . General
Counsel 's Exhibits 8A, B, and C. All three grievances
read substantially as follows:
Nature of Grievance
I Richard Moore feel that my recall rights in the
Seniority Clause of the Contract have been violat-
ed. Paul Gillespie and I were both laid off from
work due to a reduction in force. As of today Paul
Gillespie has been recalled twice. I feel that I de-
serve the same consideration and opportunities that
Paul Gillespie was given.
Rizzo thereafter telephoned Gruarin at his home to
advise him that the Union was going to file a grievance
on his behalf. Gruarin protested as to Gillespie's having
been called back before him, asserting that he had more
seniority than Gillespie. Rizzo then went to O'Neal's
office and a check of Gruarin's personnel file showed
this to be true , as his seniority date was December 12,
1981, versus Gillespie's January 4, 1982 date . Thus the
Union and the Company discovered for the first time
that at the time of the holding of the 1985 lottery,
Gruarin had seniority over the other four participants.
Therefore, he should have been recalled instead of Gil-
lespie on 29 July 1985 , and no lottery should have been
held. Had this been done , Gruarin would have extended
his recall rights by working , and would have been re-
called again on 2 June 1986 instead of Gillespie.20
O'Neal further discovered that another error had been
made in that same July 1985 lottery , this one involving
Rodney Kirsch . In determining who was eligible for that
lottery, Karcher had referred to the October 7, 1983 se-
niority listing (G.C. Exh . 4) which had been supplied to
him by the Union in 1984 , as set forth in section III,B,2,
above . This list showed Kirsch's seniority date to be 22
June 1983 , whereas his bucket card showed the correct
date to be 8 June 1982 , the same date as that of the lot-
tery participants , excepting Gruarin . Kirsch obviously
had as much right to be in the lottery as the other par-
ticipants, but his name had not been included.2 t
In late June and the first few days of July, O'Neal
thought over the problem before him and arrived at a
conclusion . His solution was as follows : Gruarin would
be recalled immediately if he wanted to come back to
work, because he had been denied recall by the holding
of the lottery in July 1985 ; Gillespie must be kept work-
ing because he had just quit a job to come back to work
at Occidental , and it would be unfair to take away his
recall rights ; Kirsch had been incorrectly excluded from
the lottery , and had he participated he might have won
over Gillespie . Since he had been wronged , O'Neal de-
termined to treat him the same as Gillespie and bring
him back. As to Baird, Moore, and Helminiak, O'Neal
felt it was wrong for him to take their jobs away because
they had been in a lottery that had been run incorrectly.
He thus determined to also recall these three employees.
O'Neal presented his solution to his supervisors, Roberts,
manager of employee relations , and Richard Tremble, di-
rector of employee relations. Both executives agreed
with his position.
Having _ arrived at this solution of the thorny problem,
by letters dated 3 July 1986 , O'Neal notified Moore,
Baird , Helminiak, and Kirsch that they were being re-
called to work and that their starting dates would be 21
July, following their physical examination by the compa-
ny doctor.
On 7 July, J. Masic telephoned the labor relations de-
partment and talked to Robinson , who informed him that
five employees were being called back, and that M-M-
B&H would be next on the list for recall. Bernardone
also talked to Robinson, and she gave him the names of
the five employees who had been called back . It was ad-
mitted that Robinson was courteous, answered questions
and provided information that was truthful and accurate
at all times.
80 A grievance was filed by the Union in behalf of Gruarin on 7 July
1986. This grievance read differently from that of Moore , Helminiak, and
Baird , as follows.
Nature of Grievance
A management error in adjusting seniority dates resulted in Frank
Gruarin being by-passed on recall from lay-off. The N.H E.U. feels
Frank should be compensated all back wages plus all benefits he
would have received if he was recalled properly
At the time of the instant hearing this grievance was still in arbitration
' i No written grievance was filed for Kirsch , but the Company and
the Union agreed that he was to be treated as if one had been filed on his
behalf.
OCCIDENTAL CHEMICAL CORP. 633
On 8 July, Bernardone called the union office and
spoke to its treasurer, Charles Walker. Bernardone testi-
fied that he asked Walker why M-M-B&H were not
called back to work instead of Helminiak , Gruarin,
Kirsch , Moore, and Baird , and that Walker said
... well, we feel obligated to bring those people
before you guys under the preferred consideration
and he says at this time we don 't have a job for you
guys . There is no opening . He says the only way
that you're going to *get called back , if we get that
hydropower.
Walker did not explain what he meant by preferred con-
sideration and Bernardone did not ask for an explanation,
as Walker's tone of voice was "very loud," and he
thought that the treasurer was "very imperative against
him."
According to Walker when Bernardone asked him
why H-B-M-K&G were being recalled prior to M-M-
B&H, he explained the Union's position as follows:
We said we had a position that because of con-
tract language , Section 6, Paragraph 2, that they
had recall rights because of seniority.
Well, he said don 't you also have a clause, some-
thing to.do with the 2-year job right, but I said, you
know , true there's a clause there about the 2-year
job right but the other ones were more applicable
and more just in our eyes to go with paragragh 2,
Section 6.
Walker candidly admitted that he raised his voice during
the conversation saying he had to, because Bernardone
would not give him a chance to answer , as he kept
"firing questions ," without giving Walker a chance to re-
spond . Walker denied that he told Bernardone that H-B-
M-K&G were being called back under preferred consid-
eration . Walker was a blunt, straight from the shoulder,
impressive witness and I credit his testimony regarding
this conversation.
On 9 July, Bernardone and L. Masic met with J.
Masic at his house , and discussed the status of the recall
situation . It was decided that J. Masic would call the
Union to find out how H-B-M-K&G were called back
before M-M-B&H. Based on their suspicion that the
Union and the Company were scheming to deny them
their recall rights, it was also decided that Bernardone
would listen in on the conversation by the use of an ex-
tension line . J. Masic reached La Macchia on the phone,
and the president asked what he could do for him. J.
Masic then told him he had heard that five people had
been recalled to work and that he had not received a
recall letter . La Macchia told J. Masic that the Union
had filed a grievance for five individuals whose recall
rights had expired . The president stated that since Gilles-
pie had been called back and laid off twice, and these
five other individuals had the same starting date as Gil-
lespie, it was the Union's opinion that these five people
should receive an additional 2-year recall right.
J. Masic described their further conversation as fol-
lows:
A. Well, at that point I had told him that in the
contract it states that any employee . who is inactive
from work for a period of 2 years in succession,
other than being on Workers' Compensation disabil-
ity, will lose his or her recall rights. At that point,
Mr. LaMacchia said that besides that , we have an-
other employee , Frank Gruarin , who has 2 weeks
more seniority than Paul Gillespie . We're consider-
ing filing a grievance on his behalf . We put the
grievance in under preferred consideration and he
said the company let us win.
Q. Okay, is there anything else that was said?
A. At that point, I asked him if he could file-
since we were members in good standing, if he
could file a grievance on our behalf and he refused
to file the grievance and he stated that he couldn't
file a grievance for the five individuals and it would
be crazy for him to, you know, file a grievance for
us. He told me that they went under a preferred
consideration clause in the contract , to call up Mr.
O'Neal and blame him and if I didn't like his
answer that I could take the other avenue that I had
taken before.
Q. I see . Now, do you recall him saying anything
else?
A. The only-the other thing I do remember, be-
cause it was really in my mind was at the point
when I-after I expressed that we were members in
good standing, he raised his voice and he said,
you're not members in good standing. You have
never paid any Union dues, and as a matter of fact,
you've taken money from the Union.
Q. I see. Okay . Do you recall anything else that
was said in that conversation?
A. I believe that's all that there was to the con-
versation.
Bernardone described the conversation of J. Masic and
La Macchia as "quick and long," and in large measure
he corroborated the testimony of J. Masic . When asked
on cross-examination if La Macchia ever said that Mr.
O'Neal let the Union win the grievance , Bernardone re-
plied , "I don't recall." Respondent Union in its brief
makes much of the fact that Bernardone in his descrip-
tion of this conversation omitted any mention of La
Macchia's stating that M-H-M-B & H were "not mem-
bers in good standing," that "they had never paid any
union dues," and that "as a matter of fact , you've taken
money from the Union."
Since La Macchia did not testify, and thus J. Masic's
testimony is uncontradicted by La Macchia or anyone
else, I credit J. Masic's testimony regarding this conver-
sation . I do not find that Bernardone 's lack of recollec-
tion overcomes J. Masic's clear testimony as to La Mac-
chia's statement.
Bernardone also testified about a second telephone
conversation he had that day as follows:
A. On July 9th , about 5 o'clock , approximately
4:00 or 5 :00 in the afternoon, Mr. O'Neal called me
prior to one of my phone calls the day before and
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he told me that he made a big mistake as far as our
recall list . He said that he knew that we should
have got called back before those five individuals
but because he had grievance that the company put
on their behalf, he felt he didn 't want to fight i[t]
so-and he felt that those people should have got
called back under the preferred consideration. And
he also said that it's a very confusing matter, you
know, and he said he would make it up to us by
calling us back very soon.
According to O'Neal, he thought that Bernardone had
called him two times, once in late June and the other in
early July. In the first conversation , Bernardone asked
where he was on the list , and when was he going to get
his letter of recall . O'Neal told him that he had a prob-
lem with the list and that a mistake had been made, and
he was not sure what he was going to do . In the second
conversation O'Neal told Bernardone not to lose hope,
that the Company had fine reports about him and
wanted to get him back as soon as possible . O'Neal
denied that he told Bernardone that he recalled H-B-M-
K&G in preference to M-M-B&H because he did not
want to fight a grievance with the Union.
O'Neal was a forthright, candid, sincere witness who
answered questions without partiality or emotion, and I
credit his version of the conversation. I also find it
highly improbable that O'Neal would have confided
such a decision to a person who had previously received
a large sum of money from the Company as the result of
the filing of unfair labor practices . The record is also
clear that throughout this case O'Neal did not believe
that anyone should be brought back to work under the
slogan of preferred consideration.
J. Masic called O'Neal the next day and introduced
himself. He asked the labor relations supervisor to ex-
plain how five individuals, whose recall rights had ex-
pired , had been called back to work. He then explained
to O'Neal that La Macchia had told him to call O'Neal
and blame the labor relations supervisor . J. Masic de-
scribed the rest of the conversation:
He interjected and said, I'm sick and tired of the
Union dumping these things on me . He went on to
explain that the employees were called back under a
grievance that was put in by the Union under pre-
ferred consideration . Since Mr. Gillespie had gotten
called back to work and the five individuals who
were recalled had the same starting dates, that to be
fair, they would call these individuals back. He said
mistakes were made in the past when Mr. Karcher
was on and in order to rectify the mistakes, they let
the Union win.
J. Masic further testified that O 'Neal told him that the
Union was considering filing a grievance on behalf of
Gruarin because he had 2 weeks' more seniority than
Gillespie . J. Masic also testified that at the end of the
conversation , O'Neal asked him what he would do if he
were in O 'Neal's place . J. Masic relied that he would
have called M-M-B&H back to work, and used "pre-
ferred consideration" 22 in order to call back Gruarin. To
this, O'Neal replied, "Gee, that's one option I could have
used."
O'Neal recalled his conversation with J. Masic, and
admitted that the told him that mistakes had been made,
which he had explained in detail. He also informed J.
Manic that the Company's position as to the meaning of
section 6 of article III was contrary to that of the Union,
and that he had never referred to it as a preferred con-
sideration clause. O'Neal thought that J. Masic had said
that H-B-M-K&G should be given preferred consider-
ation after the recall list had been exhausted. While
O'Neal denied saying, "Gee, that's one option I could
have used," he admitted that he may have said that an
option, or that would have been an option, or it is an
option. When asked point blank if at any time in that
conversation he had stated that he had let the Union win
the grievance, O'Neal replied, "Never." As previously
stated, I found O'Neal to be a very credible witness and
I credit his testimony that he did not tell J. Masic that
the Company let the Union win the grievance. It is also
against all probabilities that the supervisor of labor rela-
tions would have confided such a decision to a person
who had previously and successfully filed unfair labor
practices against his employer, causing it to pay out sub-
stantial sums of money.
As previously set forth, charges were filed by J. Masic
with the Board on 14 July. Shortly thereafter, O'Neal
learned that three of the five employees to whom recall
letters had been sent, Helminiak, Kirsch, and Gruarin,
had declined to return to work. O'Neal then had three
jobs to fill, and he informed the Union that the next per-
sons to be recalled were M-H-M-B&H. Rizzo then ad-
vised O'Neal that he had better check D. Shank's recall
rights.23 O'Neal secured Shank's telephoned number
from his brother, an employee of Occidental, and called
him, offering him the right of recall. Shank declined to
accept the offer.
Late in July, O'Neal was faced with the problem of re-
calling three of the four employees of the M-M-B&H
group as they all had the same layoff date of 1 April
1985. O'Neal called the union officers to come to his
office, and then informed them that the Company had
three jobs, and four eligible employees and was, there-
fore, going to hold a lottery. The Union, consistent with
its past practice, asked that all four employees be re-
22 When asked to define this term , J. Masic replied : "Preferred consid-
eration is consideration given to any employee, male or female, who has
lost his or her recall rights and is put on a list." J . Masic believed that the
parties' collective-bargaining agreement provided for such a list. Howev-
er, no such list is set forth in that agreement nor was any such list pro-
duced at the hearing . The first paragraph of sec . 6 of art . III relied on by
J. Masic merely stated that-
Preferred consideration will be given to seniority in case of reduc-
tion in force from a shop or department and subsequent reemploy-
ment provided ability and other qualifications are relatively equal.
These two words as used in the contract carried no technical indus-
trial meaning , but only their ordinary meaning.
23 Shank's name was the last name on the list of laid-off employees
(G.C. Exh. 3), but showed no date of layoff. He had previously been a
bargaining unit employee, then promoted out of the unit to the mainte-
nance department . When he was laid off for an unknown period of time,
he still had 1 year and I month of seniority for the purpose of recall in
the bargaining unit.
OCCIDENTAL CHEMICAL CORP. 635
called , -but. this proposed solution was declined by the
Company . Each name of M-M-B&H was written on a
separate piece of paper , and then all four names were
placed in a hat . An independent person pulled the win-
ning names in the order of J . Masic, L. Masic, and Ber-
nardone . On 29 July , the Company sent letters of recall
to J. Masic, L. Masic, and Bernardone , requesting that
each take the usual physical examination and report for
work on 11 August . As Bernardone testified , he returned
to work on that date , and approximately 1 week later
paid his dues to the Union , and has been a member of
the Union since that date.
On 30 July, the Company, by O'Neal, and the Union,
by Rizzo, signed a formal "Grievance Settlement" relat-
ing to Helminiak , Baird , Moore, and Kirsch as follows:
Grievance number 975, 980 & 981
The Company maintains that the recall rights of
the grievants were not violated . However, the
Company does agree that an error was made in re-
calling the employees . Therefore, the company will
put the following remedy in place.
1. The, four (4) affected employees (Helminiak,
Baird , Moore , & Kirsch) will be recalled immediate-
ly.
2. All of the above named employees will main-
tain their position on seniority ranking.
3. Neither the Company nor the Union removes
its contentions as to the merits of these grievances.
4. This settlement is without practice or prece-
dent relative to any future grievances.
When O 'Neal was asked why the Company sent out
recall letters on 3 July to Helminiak , Baird , Moore, and
Kirsch , when the settlement of the grievance was not
made until 30 July, O'Neal replied:
A. The-once I decided as to what the right
thing to do in terms of resolving the issues , I started
moving ahead . The time lag from the actual signing
of the grievance was that it took the Union time to
get their document down to their lawyer and then
review it and then come back and then modify it
and it took me a while probably to change it and
then sign it.
On 15 September, House, the loser of the July 1986
lottery , was notified by letter that the Company was re-
calling him . Rizzo testified credibly that the Union
played a part in House 's recall . When the Union learned
that the Company was using some outside contractors in
the housekeeping department , it was the Union's position
that House was entitled to be recalled . Rizzo had deliv-
ered the grievance to the labor relations office, which as-
serted that House should be recalled . O'Neal read the
grievance, then advised Rizzo that House had already
been recalled , thus, resolving the grievance.
IV. ANALYSIS AND CONCLUSIONS
A. As to the Union 's Liability
The complaint alleges that the Respondent Union vio-
lated Section 8(b)(2) of the Act by filing a grievance
with the Respondent Employer in which it requested
that the Employer recall five employees, Helminiak,
Baird , Moore, Kirsch , and Gruarin (H-B-M-K&G), who
no longer possessed recall rights as provided for in the
collective-bargaining agreement , instead of recalling J.
Masic, L. Masic, Bernardone, and House (M-M-B&H),
who had recall rights . The complaints also alleges that
the Respondent Union violated Section 8(b)(1)(A) by re-
fusing to process grievances on behalf of M-M -B&H re-
lating to Respondent Employer 's failure to recall them
from layoff because they were not members in good
standing in the Respondent Union.
The basic law applicable to the facts of this case, as set
forth by Administrative Law Judge Michael O. Miller in
Service Employees Local 579 (Beverly Manor Convalescent
Center), 229 NLRB 692, 695 (1977), is as follows:
It is well settled that a Union which enjoys the
status of exclusive collective-bargaining representa-
tive has an obligation to represent employees fairly,
in good faith , and without discrimination against
any of them on the basis of arbitrary , irrelevant, or
invidious distinctions . Vaca et al. v. Sipes, 386 U.S.
171 (1967); Miranda Fuel Company, Inc., 140 NLRB
181 (1962). A union breaches this duty when it arbi-
trarily ignores a meritorious grievance or processes
it in a perfunctory fashion . Vaca v. Sipes, supra, at
191, 194; Hines v. Anchor Motor Freight, Inc., 424
U.S. 554 (1976); Teamsters and Chauffeurs Local
Union No 729 (Penntruck Co., Inc.), 189 NLRB 696,
702 (1971). Correspondingly , so long as it exercises
its discretion in good faith and with honesty of pur-
pose , a collective -bargaining representative is en-
dowed with a wide range of reasonableness in the
performance of its duties for the unit it represents.
Mere negligence , poor judgment , or ineptitude in
grievance handling are insufficient to establish a
breach of the duty of fair representation. Ford
Motor Company v. Huffman, 345 U.S. 330 (1953);
King Soopers Inc., 222 NLRB 1011 (1976); Truck
Drivers, Oil Drivers and Filling Station and Platform
Workers; Local No. 705 (Associated Transport, Inc),
209 NLRB 292, 304 (1974); Maxam Dayton, Inc.,
142 NLRB 396, 418 (1963). There comes a point,
however, when a Union's action or its failure to
take action is so unreasonable as to be arbitrary and
thus contrary to its fiduciary obligations . Allen I.
Griffin v. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, 469 F.2d 181 (C.A. 4, 1972); United
Steelworkers of America, Local 8093, AFL-CIO (Ken-
necott Copper Corporation, Ray Miner Division), 225
NLRB 802 (1976); King Soopers, supra; General
Truck Drivers Warehousemen, Helpers and Automo-
tive Employees Local 315 (Rhodes & Jamieson Ltd.),
217 NLRB 616 (1975).
The central question then is whether the Union, by
filing grievances on behalf of union members, coerced
the Employer into recalling H-B-M-K&G over M-M-
B&H and refused to file grievances on behalf of M-M-
B&H because , as the General Counsel contends, it was
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
biased 'in favor of its union members and because it was
resentful of the unfair labor practice charges filed against
it by J. Masic, and the resulting substantial cash penalty
it incurred from the resulting settlement.
The Respondent Union argues that the General Coun-
sel has totally failed to prove that the Union's filing of
grievances on behalf of H-B-M-K&G, as well as its refus-
al to file grievances on behalf of M-M-B&H, was moti-
vated by a desire to encourage union membership, or by
M-M-B&H 's perceived status as nonmembers , since there
was no animus on the part of the Union. I conclude that
Respondent Union's filing of grievances on behalf of its
members H-M-B-K&G , and its refusal to file grievances
for M-H-M-B&H , was arbitrary and unreasonable and in
violation of the Act.
When the Union entered into the collective-bargaining
agreement with the Company on 1 October 1984, it
thereafter owed a duty of fair representation to all the
employees covered by that agreement , not just to all the
employees excluding J. Masic, L. Masic, Bernardone,
and House . As the Union well knew, when the Board
settlement was consumated, M-M-B&H were awarded 2
years' recall rights from 1 April 1984 and were to be
treated as any other union member . However, by its sub-
sequent actions, the Union clearly manifested that it did
not believe that it had any duty to represent those four
housekeeping employees in a fair and unbiased manner,
with the same degree of care and consideration as it ex-
tended to other employees in the bargaining unit.
The union officers admittedly did not believe that M-
H-M-B&H were members of the bargaining unit in 1983
and 1984 as its officers took the position that they were
"outside contractors" and not employees . This stigma re-
mained with them thereafter. Just prior to their Decem-
ber 1984, layoff. Bernardone was rebuffed by President
La Macchia when he and L. Masic went to the union
office to secure proof that they were not scabs. The
president advised Bernardone and L. Masic that they
should try to understand his position , that it did not
make sense that M-M-B&H were working while union
members were on layoff, that these four should be laid
off and the laid-off union members be called to work,
following which M-M-B&H could be hired when there
was work.
Following the layoff of the 75 unit employees in Janu-
ary 1984, there was much resentment expressed to the
union officers by rank-and-file employees that M-M-B&H
were still working while union members were on layoff.
Shop stewards Klingensmith and Chris Tremble on sev-
eral occasions referred to these four employees with the
most degrading term known to union workers, as
"scabs,"E4 and wanted to know what the union officers
were going to do about them.
President La Macchia's continued hostility to M-M-
B&H was again shown in September 1985 when Bernar-
done telephoned the union office to try to find out how
84 Scab: (a) mean contemptible person , (b) (1) one who refuses to join
a union, (2) a member of a union who refuses to strike or returns before a
strike has ended , (3) a worker who accepts employment or replaces a
union worker during a strike, (4) one who works for lower wages than or
under conditions contrary to those prescribed by a union , rat. Webster's
Third New International Dictionary (1981)
many names were on the recall list ahead of their names.
When the president refused to tell Bernardone-the names
on the list , he scornfully told him to call the Labor
Board , because that is what he had done before . By this
comment the president clearly revealed the union hostili-
ty towards them . Rizzo showed his animosity by his off-
hand advice to La Macchia to tell Bernardone that there
were 30 to 40 people on layoff, without any checking of
the Union 's records so as to give a fair answer to Bernar-
done 's perfectly proper question.
Finally, the smoking gun that shows conclusively that
La Macchia had personal animosity to M-M-B&H was
his angry retort to J. Masic during their telephone con-
versation of 9 July. J. Masic's request that the Union file
a grievance for M -M-B&H was summarily and scornfully
dismissed by La Macchia for the reason that the Union
had already filed grievances for H -B-M-K&G, and it
would be "crazy" for the Union to file grievances for M-
M-B&H. J . Masic's remark that M-M-B&H were mem-
bers in good standing incited the union president to
strongly deny that they were, saying, "You have never
paid any Union dues, and as a matter of fact , you've
taken money from the Union ." By this statement La
Macchia clearly showed that he deemed M-M-B&H to
still be outside contractors and not union members, and
that he put the contractual rights of union members H-B-
M-K&G ahead of those of nonunion members by refus-
ing to file grievances on their behalf.
Additionally, La Macchia's statement that M-M-B&H
had taken money from the Union was a clear manifesta-
tion that he well remembered that the Union had been
required to pay a large sum of money to each of the four
persons who now wanted the Union to file a grievance
for them . The context of his statement showed that he
not only remembered that the Union had paid over to
them a total of $10,000 , but also that he bitterly resented
having to do so . Certainly the filing of grievances on
behalf of acknowledged union members , while refusing
to file grievances on behalf of persons considered by the
Union to be nonmembers, would encourage union mem-
bership.
Respondent Union in its brief , as it did in the hearing,
contends that the Union relied on, and had a right to
rely on , the second paragraph of section 6 of article
11125 for its filing of grievances for H-B-M-K&G. What
this paragraph means was never adequately explained at
the hearing and aside from the fact that there is no reem-
ployment list, it is obviously ambiguous on its face, and
too slim a reed to be relied on by the Union.
However, the contract clause relied on by M-M-B&H
is crystal clear and unambiguously states that a person
will lose his seniority if "He has performed no active
work at the plant for two (2) years unless due to contin-
uous Workman 's Compensation disability ." H-B-M-K&G
admittedly had not performed any work at Occidental's
plant for well over 2 years and therefore had lost their
right of recall under this unambiguous contractual clause.
The union officers were well aware of this 2 -year loss of
85 Employees laid off from the plant due to reduction in force will
retain their original position on the reemployment list regardless of date
of layoff.
OCCIDENTAL CHEMICAL CORP. 637
seniority clause, yet they chose to totally ignore it when
they filed grievances for its union members and when
they refused to file grievances on behalf of M-M-B&H.
Accordingly, I find that by filing grievances on behalf
of Helminiak , Baird , Moore, and Kirsch, and demanding
their recall , and by refusing to process grievances on
behalf of J. Masic, L. Masic, Bernardone , and House,
Respondent Union has breached its duty of fair represe-
tation and has violated Section 8(b)(1)(A) and (2) of the
Act. Barton Brands Ltd., 228 NLRB 889 (1977); Team-
sters Local 980 (Auburn Constructors), 268 NLRB 894
(1984).
B. As to the Employer's Liability
We turn now to the allegation in the complaint and
the contention by the General Counsel that the Respond-
ent Employer violated Section 8(a)(1) and (3) of the Act
when it acquiesced to the grievances filed by the Re-
spondent Union, and recalled Helminiak , Baird , Moore,
Kirsch , and Gruarin (H-B-M-K&G).
The Respondent Employer argues in its brief that in
June 1986 it was faced by a dilemma as to which em-
ployees had recall rights, with the Union contending that
H-B-M-K&G should be recalled, by reason of article III,
section 6, paragraph 2 of the bargaining agreement, and
M-M-B&H contending that they should be recalled by
reason of the same article, section 3(a)(3) thereof. The
Employer further argues that the dilemma it faced was
caused by a "bonafide and mutual mistake" made in July
1985, when it conducted a lottery so as to recall a single
employee. As the Company learned later, and now
admits, the lottery was a mistake and should never have
been held since laid-off employee Gruarin actually had
seniority over Helminiak , Baird , Moore, and Gillespie.
Gruarin should have been recalled, rather than Gillespie,
the winner of the tainted lottery. Had Gillespie not been
recalled there could have been no subsequent claim by
the Union that Helminiak, Baird , Moore, and Kirsch,
having the same seniority date as Gillespie , had recall
rights in 1986 because of Gillespie 's employment in 1985.
Also, as part of the dilemma, the Company, in late June,
was faced with the status of Kirsch, who had, in error,
been excluded from the 1985 lottery, the lottery which
should not have been held in the first place.
To resolve this dilemma the Company recalled Hel-
miniak, Baird, Moore, Kirsch, and Gruarin. However,
the Company argues it did not violate the Act, because
its solution of the conflict was motivated solely by an
effort to fairly adjust an honest mistake, and therefore its
solution was not discriminatory, invidious, arbitrary, or
capricious.
In making my findings here , it is well established that
an employer violates Section 8 (a)(3) and (1) if it know-
ingly acquiesces in the union 's action , or participates in
what it knows is an unfair labor practice on the union's
part. Fruin-Colnon Corp., 227 NLRB 59 (1976); General
Motors Corp., 272 NLRB 705 (1984), enfd. sub nom.
UAW Local 594 v. NLRB, 776 F.2d 1310 (6th Cir. 1985).
I find that the preponderance of evidence in this
record establishes that Respondent Employer yielded to
the pressure of Respondent Union 's officers and recalled
union members Helminiak , Baird , Moore , and Kirsch
under circumstances where the Employer well knew
that , under the terms of the parties ' bargaining agree-
ment, they had lost their recall rights. I further find that
the Company did not recall J. Masic, L. Masic, Bernar-
done, and House in this instance because of the same
union pressure.
It must be remembered that from the first time that
O'Neal talked to the union officials about what were the
recall rights of Helminiak, Baird, Moore, Kirsch, and
Gruarin, to the last time, it was O'Neal's firm position
that H-B-M-K&G had lost their rights of recall as of 24
January 1986 because they had not worked in the 2-year
period prior to that date. O'Neal told this to La Macchia
and Rizzo in January and February; he told this to Ber-
nardone in February , as well as to Baird when he called
for information . In early June , Bernardone and L. Masic
were told by the personnel department that they were
next on the recall list and could expect an early return to
work. Finally, in mid-June following Gillespie's recall,
when he needed four additional workers, O'Neal in-
formed the union officers that J. Masic, L. Masic, Ber-
nardone, and House would be recalled because Helmin-
iak, Baird, Moore, Kirsch, and Gruarin had lost their
recall rights by the passage of time. This position of
O'Neal was further reinforced by Karcher, when O'Neal
telephoned the former supervisor of labor relations and
Karcher emphatically agreed that Helminiak, Baird,
Moore, Kirsch, and Gruarin had lost their recall rights.
However, a few days later on 26 June, O'Neal re-
ceived a grievance from the Union on behalf of Moore
and, on 1 July, received grievances on behalf of Baird
and Helminiak. Within a day or two of receiving these
additional grievances from the Union, O'Neal abruptly
and completley abandoned his position as to the recall
rights of J. Masic, L. Magic, Bernardone , and House, and
yielded to the position of the Union. As O'Neal testified,
he never, at any time, agreed with the legal basis of the
Union's position. Yet, on 3 July, he sent letters to Moore,
Baird, Helminiak, and Kirsch informing them that they
were being recalled to work.
The parties' collective-bargaining agreement contained
a broad grievance and arbitration procedure that plainly
would have covered this dispute between the Company
and the Union. 26 But the Company at no time ever con-
sidered taking the grievances to arbitration. Rather, it
quickly bent to the position of the Union and, as O'Neal
admitted , gave it everything it wanted in the grievances.
Some equity can be seen in O 'Neal's position tht Gil-
lespie be allowed to continue to work, and General
Counsel, in his brief, states that he has no problem with
this . On an equitable basis, I can also see O'Neal's posi-
tion that Gruarin should have been recalled as he had
been most improperly treated in not having been recalled
in July 1985, before the holding of any lottery. However,
I can find no equity, fairness , or logic in any degree in
the recalling of Helminiak, Baird, Moore, or Kirsch. The
Company's reasoning would reward Helminiak , Baird,
8e Sec. I of Art. XV provides-
A difference of opinion involving the way in which the provisions
of this agreement have been applied to a particular case will consti-
tute a problem for adjustment under this Article XV.
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Moore because they lost in a lottery that should
never have been held; that Kirsch should be rewarded
-because he was, in error, not allowed to participate in an
improper lottery.
I do not find that the General Counsel produced spe-
cific evidence that the Respondent Employer acted with
discriminatory intent. However, I do find that the dis-
criminatory intent of the Employer may be inferred from
the natural and forseeable consequences of the Union's
conduct. J. Masic, L. Masic, Bernardone, and House
were told in early June by O'Neal that they were to be
recalled. Yet shortly thereafter, they learned that five
'other employees, members of the Union, whose recall
rights have long since terminated, had been recalled in
their place. The natural and forseeable consequence of
the Union's successful action was certainly to convince
M-M-B&H of the wisdom of joining the Union, as the
Union had amply demonstrated its power to cause the
Company to reverse its previously strongly held position
As the Board held in Miranda Fuel Co., 140 NLRB 181,
188 (1962).
The right to hire and fire and to control tenure of
employment is an employer's alone, and where an
employer does delegate or surrender hiring and
firing and related authority to a labor organization,
the employer is responsible so far as this act is con-
cerned, for the unlawful manner in which the Union
exercises the delegation.
Accordingly, I, find-and conclude that by yielding to
the' pressure of the grievances filed by the Union ad re-
calling Helminiak, "Baird, Moore, and Kirsch instead of J.
Masic, L. Masic, Bernardone, and House, Occidental
Chemical Corporation discriminated against said employ-
ees regarding terms and conditions of their employment,
thereby encouraging membership in the Union, in viola-
tion of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Occidental Chemical Corporation is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Niagara Hooker Employees' Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. At all times material, the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees involved herein.
4. By engaging in the conduct described in sections III
and IV above, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) and Section 8(a)(3) and (1) of
the Act.
their proper time, I shall recommend that- Respondents,
jointly and severally, make J. Masic, L. Masic,i Bernar-
done, and House whole for any loss, of earnings, and
other benefits, suffered as a result of the discrimination
against them by payment to them of a sum of money
equal to that which they normally would have earned as
wages, from the dates of David Baird's and Richard
Moore's recall until their actual return to work, less any
net interim earnings . All backpay provided shall be com-
puted with interest on a quarterly basis in the manner de-
scribed by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in Florida Steel
Corp., 231 NLRB 651 (1977) See generally Isis Plumb-
ing, 138 NLRB 716 (1962). 1 also recommend that the se-
niority dates of J. Masic, L. Masic, Bernardone, and
House be advanced ahead of the seniority dates of Baird
and Moore and be so listed in all pertinent records of the
Respondent Company and Union.
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommend-
,ed27
ORDER
A. The Respondent Union, Niagara Hooker Employ-
ees' Union, Niagara Falls, New York, its officers, agents,
and representatives, shall
1 Cease and desist from
(a) Filing grievances to cause the Respondent Employ-
er to discriminate against the recall rights of John Masic,
Louis Masic, Mario Bernardone, and Derek House.
(b) Refusing and failing to process grievances for John
Masic, Louis Masic, Mario Bernardone, and Derek
House in a fair and impartial manner.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Jointly and severally, with the Respondent Em-
ployer, make John Masic, Louis Masic, Mario Bernar-
done, and Derek House whole for wages not paid to
them as a result of the conduct set forth herein, and in
the manner provided for in the remedy section of this
decision.
(b) Advance the seniority dates of John Masic, Louis
Masic, Mario Bernardone, and Derek House ahead of the
seniority dates of David Baird and Richard Moore on
..any pertinent union records. ,
(c) Post at its main hall or office and its meeting.places
for members copies of the attached notice marked "Ap-
pendix A."28 Copies of the notice, on forms provided by
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act
The Union having unlawfully caused the Respondent
Employer to refuse to recall John Masic, Louis Masic,
Mario Bernardone, and Derek House back to work at
27 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 objections to them shall be deemed waived for all pur-
poses
28 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
OCCIDENTAL CHEMICAL CORP 639
the Regional Director for Region 3, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Union has taken to comply.
[Recommended Order relating to Occidental Chemical
Corporation omitted from publication.]