Rubber Workers, Local 374

National Labor Relations Board - Board Decisions

Jul 30, 1973

205 N.L.R.B. 117 (N.L.R.B. 1973)

RUBBER WORKERS , LOCAL 374
United Rubber , Cork, Linoleum & Plastic Workers of
America , Local 374 (Uniroyal , Inc.) and Donald
Smith. Case 13-CB-4370
July 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 2, 1973, Administrative Law Judge Well-
ington A. Gillis issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge, as ex-
panded herein, and to adopt his recommended Order.
As described more completely in the Administra-
tive Law Judge's Decision, the dispute herein arose
out of the filing, processing, and settling of a griev-
ance by Respondent on behalf of production employ-
ee Stanley Rudnick. Through the grievance,
Respondent sought to permit Rudnick to "bump"
into the skilled trades division and dislodge the least
senior employee therein, maintenance employee Don-
ald Smith, from his job. It is admitted that no produc-
tion employee has ever before bumped into the skilled
trades division.
Respondent sought contractual support for its
grievance in article VII, section 11, of the collective-
bargaining agreement-the skilled trades division (or
shop) classification seniority provision. However,
since this provision, by its terms, did not deal either
directly or indirectly with the right of production em-
ployees to bump into the skilled trades division, the
grievance was ultimately settled through a "clarifica-
tion" of article VII, section 11. Under the terms of the
clarification, once an employee had acquired classifi-
cation seniority by working in the skilled trades divi-
sion, that seniority could never be lost and was
retained by the employee even after transfer to a new
1 It is unnecessary to review the Administra tive Law Judge 's analysis of the
doctrine of "prior rights" as established in Respondent 's collective-bargain-
ing agreement with Uniroyal , Inc. In their briefs to the Board, both Respon-
dent and the General Counsel acknowledge that the doctrine is not
applicable on the facts of this case
117
classification or department. Since Rudnick had ac-
quired approximately 14 years' mechanic classifica-
tion seniority prior to taking a foreman's job in the
production department in 1969, he was thereby per-
mitted to retain this seniority and bump Smith who,
at the time, had only acquired 10 years' mechanic
classification seniority.
When Smith subsequently filed a grievance claim-
ing that Rudnick's bump into the skilled trades divi-
sion violated the terms of the collective-bargaining
agreement, the Company, relying on the above-de-
scribed clarification of the shop seniority clause, de-
nied the grievance on the ground that "[alt the time
of the bump, S. Rudnick had not less than thirteen or
more than seventeen years of mechanic classification
seniority and D. Smith had less than ten years of me-
chanic classification seniority." (Emphasis supplied.)
Respondent chose not to appeal the Company's dis-
position of the grievance and Smith thereafter filed
the original unfair labor practice charges herein.
In view of the above, it is readily apparent that both
grievances were disposed of on the basis of the "clari-
fication" which Respondent and the Company
reached with regard to article VII, section 11, of their
contract. Indeed, Respondent's current president tes-
tified that but for the clarification, Rudnick would not
have been permitted to bump into the skilled trades
division.
The Administrative Law Judge found, and we
agree, that Respondent's reliance on the clarification
of article VII, section 11, as justification for its con-
duct is unwarranted. In permitting skilled trades divi-
sion employees to perpetually retain their
classification seniority even after their transfer to
other departments, the clarification is contrary to the
requirements of article VI, section 7A, of the contract
which stipulates that only during the first month fol-
lowing a transfer will an employee's seniority be
maintained in his old department.
We further find, and Respondent now apparently
agrees, that article VII, section 11, quite apart from
the validity of the clarification, does not apply to
production employee Rudnick at all. As Respondent
states in its brief to the Board, "Article VII, Section
11, Shop Seniority applies only to people who are
presently engaged or working in the Skilled Trades or
Maintenance Department and outlines the proce-
dures which they shall take in the event that they are
going to change jobs by bid, bumping, hiring, layoffs
and recalls." Since at the time of his attempted trans-
fer Rudnick was neither "presently engaged nor work-
ing" in the skilled trades division, article VII, section
11, simply does not apply to him.
At the hearing, Respondent for the first time argued
that Rudnick was permitted to bump Smith pursuant
205 NLRB No. 28
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that portion of article VI, section 9B, of the collec-
tive-bargaining agreement-the plant seniority provi-
sion-which permits production employees to bump
"only the least senior employee in the plant." 2 Re-
spondent contends that since Smith was admittedly
the least senior employee in the plant, and since the
above-quoted bumping privilege for production em-
ployees is not limited by excluding skilled trades em-
ployees from its scope, Rudnick had a right to Smith's
job even though it meant permitting a production
employee to bump into the skilled trades division.
It is unnecessary for us to determine the merit of
Respondent's argument. Even assuming that the con-
tract theory now advanced is meritorious,' it is not the
theory which was actually utilized by Respondent and
the Company in disposing of the grievances and
therefore cannot possibly be the real reason behind
Respondent's efforts to have Smith bumped by Rud-
nick.
We agree, instead, with the Administrative Law
Judge that the real reason behind Respondent's con-
duct lies in the expressed desire of certain of its offi-
cials-President Richard Lewis and Shop Steward
Tom Rosier in particular-to "get" Smith for actions
which he had taken while serving a 2-year term as
Respondent's president. While in office, Smith ex-
pelled Lewis from attendance at union meetings for a
period of 3 months following Lewis' disruption of a
prior meeting, and on another occasion Smith
bumped Rosier from his job pursuant to the supersen-
iority which Smith acquired by virtue of his position
as union president. Such actions, all of which consti-
tuted protected union activities, engendered in Lewis
and Rosier a feeling of hostility towards Smith which
found expression in numerous statements to other
employees, the essence of which was that Smith would
have to go.
In view of the open hostility against Smith harbored
by certain union officials, the admitted absence of any
past occasions in which production employees have
been permitted to bump into the skilled trades divi-
sion , and the lack of a reasonable contractual basis for
the grievance, we find that Respondent's filing and
processing of Rudnick's grievance was motivated by
a desire to "get" Smith for engaging in protected
2 While it is true that the Company 's answer to Smith 's grievance, ac-
quiesced in by Respondent , mentioned that both art Vii, sec I I (skilled
trades seniority), and art VI, sec 9, B (plant seniority ), provided for bumping
the least senior employee in the plant , it is clear from the portion of the
Company's answer quoted above that the denial of Smith 's grievance was
predicated exclusively upon his lack of sufficient mechanic classification
seniority under the skilled trades seniority provision
3 While we specifically refrain from reaching this issue , it is nevertheless
to be noted that in over 20 years no production employee has ever bumped
into the skilled trades division , nor is there any evidence to indicate that the
plant seniority provision now relied upon by Respondent has ever been
interpreted so as to permit such transfers in appropriate circumstances
union activities and accordingly violated Section
8(b)(1)(A) of the Act. In addition, Respondent's set-
tlement of Rudnick's grievance on a basis which re-
quired the Company to discriminate against Smith
violated Section 8(b)(2) of the Act. Cf. United Steel-
workers of America (Miami Copper Co.), 190 NLRB 43.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, United Rubber, Cork, Lino-
leum & Plastic Workers of America, Local 374, Chica-
go, Illinois, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
CHAIRMAN MILLER, dissenting:
And now what?
The majority has set aside a grievance settlement,
pursuant to which Rudnick, an admittedly more sen-
ior employee than Smith, was permitted to bump
Smith, the least senior man in the plant.
Now what of union member Rudick's rights?
Shall he now file a grievance, complaining that his
contract rights have been adversely affected? And if
the Union fails to process his grievance to arbitration,
what if he now files a grievance alleging a lack of fair
representation, because his Union is now refusing to
assert on his behalf an interpretation of the agreement
to which the Company has acquiesced?
And in broader perspective-does the least senior
man in the plant acquire, by our fiat, some kind of
superseniority if he has engaged in internal political
battles and thus incurred some degree of ill will by the
union leaders he has opposed? Must the Union under
those circumstances carry any grievance filed by him
to arbitration, even though to do so would be to assert
a position contrary to the terms of a settlement en-
tered into on behalf of a senior employee who, pre-
sumably, was also entitled to fair representation?
The majority has entered treacherous waters.
Seniority disputes of the type present here are not
easy for unions to resolve. Had the union leadership
refused vigorously to prosecute the grievance filed by
Rudnick, a long-time employee and, presumably, a
long-time union member, and taken the position that
he had no right to bump the least senior employee in
the plant, he might well have been the charging party
here, alleging that the Union was showing favoritism
to a former union president.
Union leaders have no easy task in reconciling con-
flicting claims within their own ranks in these com-
RUBBER WORKERS , LOCAL 374
plex seniority disputes. In my view, we should go very
slowly in sustaining charges in these cases. And de-
spite some evidence of hostility toward the Charging
Party, I believe the Union and the Company were on
the horns of a dilemma when Rudnick filed his griev-
ance. I cannot say that the manner of resolving it was
so arbitrary, invidious, and unfair that Section 8(b)(1)
was violated.
I therefore dissent.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on January 5, 1973, at Chicago,
Illinois, and is based on a charge filed on June 5, 1972, by
Donald Smith, an individual, upon the General Counsel for
the National Labor Relations Board, hereinafter referred to
as the Board, against United Rubber, Cork, Linoleum &
Plastic Workers of America, Local 374, hereinafter referred
to as the Respondent or the Union, alleging violations of
Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136),
and upon an answer timely filed by Respondent denying the
commission of any unfair labor practices.
All parties were represented by counsel and were afford-
ed full opportunity. to examine and cross-examine witnesses,
to introduce evidence pertinent to the issues, and to engage
in oral argument. Timely briefs were filed by counsel for
General Counsel and for Respondent.
Upon the entire record in this case, and from my observa-
tions of the witnesses, and their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and inherent probability of testi-
mony" (Universal Camera Corp. v. N.L.R.B., 304 U.S. 474,
496 (1951) ), I make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE EMPLOYER
Uniroyal , Inc., a New Jersey corporation, licensed to do
business in Illinois, is engaged in the manufacture of auto-
mobile tires and other rubber goods . It operates plants or
facilities in a number of States , one of which is located in
Chicago , Illinois, the only facility involved in this proceed-
ing. During the calendar year immediately preceding the
issuance of complaint , the Company purchased goods hav-
ing a value in excess of $50 ,000 and caused said goods to
be shipped from sources located outside the State of Illinois
directly to its facility in Chicago , Illinois. The parties admit,
and I find, that Uniroyal , Inc., is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
11 THE RESPONDENT LABOR ORGANIZATION
The parties admit, and I find, that United Rubber, Cork,
Linoleum & Plastic Workers of America, Local 374, is a
119
labor organization within the meaning of Section 2 (5) of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Whether, in filing and processing a grievance on behalf
of employee Stanley Rudnik, who was about to be laid off,
by which Rudnik was granted greater seniority resulting in
the bumping and layoff of the Charging Party, Donald
Smith, the Respondent did so because of its hostility toward
Smith in violation of Section 8(b)(2) and (1)(A) of the Act.
B. The Facts
Donald Smith, the alleged discriminatee in this proceed-
ing, was hired in November 1962, by the employer involved
herein, Uniroyal, Inc., as a maintenance employee in its
skilled trades division, commonly referred to as the
"shop." I Smith was continuously employed in this capacity
from 1962 until the first of June 1972, when he was laid off
as the result of a bump by another employee, Stanley Rud-
nik, who had greater plant seniority than Smith? During
this period, Smith was active as a union leader, serving as
departmental steward in 1964 and 1965, as secretary in 1968
and 1969 and, upon election in November 1969, as president
during 1970 and 1971. In November 1971, he was defeated
by Richard Lewis, the current president.
While carrying out his functions as president during his
2-year term, certain actions by Smith gave rise to strong
feelings against him by those who came to succeed him in
the union official hierarchy. In August 1970, Lewis filed an
unfair labor practice charge with the Board, naming Smith
as the union official to contact, asserting that the union
officers had refused to process his grievance relative to over-
time for arbitrary, discriminatory, and invidious reasons. In
May 1971, another unfair labor practice charge was filed by
Lewis, again naming Smith as the union official to contact,
alleging the failure of the union officers to process a griev-
ance by Lewis. Both charges were subsequently dismissed
by the Board.
In July 1971, while Smith was presiding over a union
meeting, Lewis became unruly and repeatedly refused to
abide by Smith's ruling that he was out of order. When
Smith attempted to expel Lewis from the meeting, Lewis
refused to leave, resulting in a heated argument between the
two. Pursuant to his authority under the Union's Constitu-
tion, Smith, by letter of July 19, 1971, suspended Lewis from
attending all union meetings for a period of 3 months. Lew-
is, although abiding by the mandate, filed an appeal with the
International, which, in turn, upheld Smith's action.3
1 The Company's operations involved two sections, the production area
where the bulk of the employee complement is employed, and the skilled
trades division or "shop," which houses the plant maintenance employees
2 The real question posed is whether, under the collective-bargaining con-
tract, an employee with seniority in the production area could transfer that
seniority to the skilled trades division and bump a man employed in skilled
trades
3 I credit Smith's testimony, over Lewis' denial, that an appeal was taken
on Smith's suspension of Lewis
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In late 1970, during the course of exercising his supersen-
iority granted him by the collective-bargaining contract as
president of the Union, Smith bumped employee Tom Rosi-
er, one of nine he bumped during his 2-year term of office.
Rosier, bitter about Smith's action , vowed while on layoff
that if he ever got the chance he would even the score. On
a number of occasions subsequent to this layoff, Rosier
repeated his threat to Smith, a threat well-known to shop
employees and management alike. Following a union meet-
ing in February 1972, at which time Smith was out as the
union head and Rosier held a union position as shop stew-
ard under Union President Lewis, Rosier again let Smith
know that he had not forgotten the incident, and that, as
Smith had allowed the Company to lay him off illegally, "he
was going to do everything in his power to force the Compa-
ny to get rid of me."
That both Rosier and Lewis were known to have made
statements against Smith is apparent from the record. Ed-
win Knorr, maintenance employee with 22 years with the
Company, testified that on a number of occasions in front
of a group of employees he heard Rosier say that "he would
get Mr. Smith out of his job in any way he could." Manuel
Crank, a long-time production employee, testified that on
one occasion in February 1972, while sitting with Lewis at
a table in the plant cafeteria, as Smith passed by, Lewis said,
"that boy's got to go." 4
Another employee with 20 years' service with the Em-
ployer, electrician Charles Hudson, testified that on two or
three occasions, as late as April 1972, in front of a number
of employees, he heard Rosier say that "we must get Don
Smith out of the plant, he must go." 5
In May 1972, Grievance No. 186 was filed on behalf of
Stanley Rudnik, seeking to allow Rudnik, a production and
maintenance employee, to bump Smith, a skilled trades di-
vision employee. As against Smith's 10-year tenure, 1962 to
1972, in the latter division, Rudnik was hired by the Compa-
ny in September 1955 as a production employee. He re-
mained in production until 1966 when he was given a
maintenance job in the skilled trades division. Rudnik
worked in this division until the latter part of 1969, when he
was laid off due to a cutback. After a 2-week layoff, he took
a former job in production, and then, almost immediately,
claimed the production job as slitter under his "prior
rights," a job from which he had been laid off before going
in to the maintenance shop. At that time, Rudnik was told
by the Company that, under the contract, if he claimed any
job under "prior rights," including the slitter's job, he would
be giving up all other "prior rights." Thus, with notice,
Rudnik at this point gave up any prior rights to his job in
the skilled trade division.
A month or two later, Rudnik was laid off from the
slitter's job and he bumped the low man in the production
department and took a jeep job. Subsequently, the slitter's
job opened up and Rudnik went back to it, where he worked
until April 1972 when the job was discontinued. He then
bumped a quality control technician in the same depart-
ment. While he was in training for this job, the Union filed
Grievance No. 186, alleging that Rudnik should have the
right to bump Smith, assertedly the least senior employee in
the plant, but who held down a job in the skilled trades
division.
Grievance No. 186 was taken up at an interim meeting in
Miami where company officials met with officers of local
unions. Lewis and Jim Estes, Respondent's vice president,
were present at this meeting. An agreement was reached,
subject to union approval, which, by a special clarification
of the contract, permitted a production employee to bump
into the skilled trades division. At a May 28, 1972, union
meeting , with Smith present, and Lewis presiding, upon a
motion by Rosier, it was voted to instruct the vice president
to allow Rudnik to bump Smith the following Monday.
Smith objected on the ground that the action on the settle-
ment of Grievance No. 186 was illegal because the interpre-
tation encompassed in the settlement of this grievance
violated the contract.6 As a result of this action, Smith was
bumped on May 31, 1972, and was laid off. As Smith was
putting his tools away on this day, Smith told Rosier that
he felt that the action taken on Grievance No. 186 was a
violation of the contract and that he wanted a grievance
filed on his behalf. Rosier replied that Smith did not have
a grievance and that he got what he deserved.
Thereafter, on June 18, 1972, Smith filed his own written
Grievance No. 194, asserting in effect that the prior action
resulting in his being bumped constituted a violation of the
terms of the collective-bargaining contract. This grievance
was filed at the second step by divisional steward, E. Bagley.
The Company, on June 28, 1972, rendered its answer to the
grievance, interpreting the contract provisions against the
position asserted by Smith. Subsequently, the Company's
position on the grievance was accepted by the union com-
mittee as being settled, and, with Union President Lewis so
noting on the Company's answer by date of July 2, 1972,
Smith was advised of the fact that his Grievance No. 194
was settled against him. According to counsel for the Re-
spondent, because it appeared that the Company's answer
giving rise to the settlement in Smith's grievance was ren-
dered pursuant to, and based on the same principle as, the
earlier settlement of Rudnik's grievance, the Union decided
not to process Smith's grievance further and, accordingly,
refused to go to arbitration.
Analysis and Conclusions
The General Counsel contends that the Union's pro-
cessing of Grievance No. 186 was discriminatonly motivat-
ed and that it used the grievance as a vehicle to get rid of
Smith . In support thereof , the General Counsel, relying on
the rationale , but not the result, of United Steel Workers of
America (Miami Copper Co.), 190 NLRB 43, argues that the
record shows ( 1) animosity of Union President Lewis, and
' Smith testified that four voted in favor, three of them union officials, one
4 Lewis, while admitting that it was possible that he sat at a table with voted against (Smith), and nine abstained. Lewis testified that 13 voted for,
Crank, denied making the statement I do not credit his denial. only one voting against Contrary to Smith, Lewis testified that the motion
5 Rosier, although present at the hearing, did not take the witness stand by Rosier involved the acceptance of the settlement In either case, the effect
Thus, the testimony of Smith, Knorr, and Hudson, as to these matters, was the same Again, as I was impressed with Smith's candor while testifying,
remains unrefuted and is credited more so than that of Lewis, I credit Smith as to this matter.
RUBBER WORKERS , LOCAL 374
Union Steward Rosier towards Smith; (2) the complete de-
parture from past practice in allowing, and seeking to allow,
an employee from the production and maintenance area to
bump into the skilled trades division; and (3) the apparent
violation of the collective-bargaining agreement in allowing
such to take place. The Respondent generally denies that
the grievance filed on behalf of Rudnik was in any way
perpetrated by the Union or its officers in any manner
which would be discriminatorily applied towards Smith.
In the Miami Copper case, an employee who had become
disenchanted with the union lost his job through the griev-
ance procedure to another employee with greater seniority.
In reversing the Administrative Law Judge's finding that the
union's actions were unlawful, the Board held that the Ad-
ministrative Law Judge was not entitled to draw inferences
in the absence of evidence of hostility on the part of the
union officers, and specifically found that there was no
evidence of a deviation from past practice and no evidence
of contract violations. I agree with Counsel for the General
Counsel that the instant case appears to be the converse of
Miami Copper and that the evidence which the Board found
lacking therein is here present.
First, the record amply demonstrates that both Lewis and
Rosier had sought Smith's demise for some period of time,
that Lewis had held it against Smith, while president, for not
processing his grievances, even to the extent of filing unfair
labor practice charges in an attempt to rectify the situation.
Smith's 3-month suspension of Lewis from attendance at
union meetings and his use of his supersenionty to bump
Rosier gave rise to subsequent threats by both union offi-
cials to get rid of Smith. That these actions by Smith engen-
dered hostility toward him by these union officials as
reflected in their threats is apparent.
As to the second point, it is not disputed that no employee
had ever been allowed to bump from the production and
maintenance area into the skilled trades division. Further,
Lewis admitted, and it is generally conceded, that, but for
the new interpretation placed upon the seniority provisions
of the contract in the settlement of Grievance No. 186 filed
by the Union on behalf of Rudnik, Rudnik would not have
been able to bump Smith. Thus, it is uncontroverted that the
resolution of Grievance No. 186 was a complete departure
from past practice.
Thirdly, with respect to the assertion that the settlement
of Grievance No. 186 violated the existing collective-bar-
gaining contract,' it appears that under article VI, section
7A, of the contract, within a month after Rudnik was given
ajob in maintenance in 1966, his 11 years of seniority accu-
mulated while working in production shifted to his new job,
crediting him with 1 I years seniority in the skilled trades
division. He then worked 3 more years in skilled trades,
giving him a total of 14 years' seniority, when, in 1969, he
took a voluntary layoff, which he was entitled to do under
the "Shop" seniority provisions of article VII, section 11, 3,
of the contract.
7 The main problem here concerning contract interpretation arises from
the fact that there are two separate seniority provisions in the collective-
bargaining agreement, one for the production area employees, part of which
is also applicable to the skilled trades employees, and one for the skilled
trades department only
121
When, however, within the following few weeks he
claimed a slitter's job back in production under his "prior
rights," Rudnik lost any prior rights to any other job, in-
cluding his old job in the skilled trades department, a fact,
made known to him at the time.8 Further, again under arti-
cle VI, section 7, A, the seniority transfer provision, within
I month of his return to production, Rudnik's 14-year sen-
ionty was transferred to his new slitter's job in production.
Thus, when in April 1972 Rudnik was faced with a layoff,
he had no prior rights to his old maintenance job in the
skilled trades department, nor did he have any seniority in
the skilled trades department, for he had transferred that
back in 1969 when he left that department and went back
into production. Article VII, section 11, entitled "Shop Sen-
iority" (the skilled trades division seniority provision),9 ex-
pressly provides that skilled trades bidding and bumping
will be handled exclusively under a "shop" classification
seniority basis, and not under the normal plant seniority
rules of article VI, section 9, B.10
Thus, the way that Rudnik could claim "shop" seniority
in the skilled trades division in order to bump Smith, who
had but 10 years seniority, all spent in that division, was
through special interpretation "clarifying" article VII, sec-
t The contract provision related to prior rights provides as follows
No 5-Concerning Job Rights
To clarify local interpretation of Article VI, Section 7 of the Local
Supplement Agreement the following examples illustrate the rights of an
employee to a former job or jobs
An employee may, because of a succession of bumps, have rights to
several different jobs at the same time He will continue to have rights
to those jobs until such time as he exercises his rights to one of those
jobs The exercise of his rights on one job will cancel his rights to any
other job he has held, including the one he leaves at that time.
9 Art VII, sec It, provides as follows.
Shop Seniority-Seniority for the Skilled Trades employees will be handled
under a shop classification plan for placing by bid, bump, hiring, layoffs and
recalls, instead of language in Article VI, Section 9 B All other portions
of Article VI shall apply Shop Seniority shall be considered as seniority
attained in classification A senior employee laid off due to a cutback may
I Bump the least senior employee in the
classification
2 Bump the least senior employee in the plant
3 Take a voluntary layoff
10 Art VI, sec. 9 B, reads as follows
B. When layoffs become necessary the following procedure will be fol-
lowed-
I Employees whose jobs are eliminated will be listed according to
their plant-wide seniority from most senior to least senior.
2 Employees will be given the options listed below in line with their
seniority-
a Job and classification option
A senior employee affected may bump the least senior employee in
his job or classification on his shift or in his department.
b Shift option
A senior employee affected may bump the least senior employee on
his shift in his department
c Division option
A senior employee affected may bump the least senior employee in
his division on the shift of his choice
d Plant option
A senior employee affected may bump only the least senior employee
in the plant
e The least senior employees referred to in a, b, c, d, above are the
least senior employees at the time option is given.
I Voluntary lay-off option
A senior employee whose job has been eliminated or who has been
bumped from his job may elect to go on layoff out of line of seniority.
g All options are subject to the conditions established in Article VI,
Section 9 c
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 11, which is what was done in the settlement of Gnev-
ance No. 186, wherein the Union and Company agreed that
under said article, "classification seniority once attained
cannot be lost by bid, bump or by exercising option or prior
rights. Any further moves will be made with this under-
standing." Thus, by special interpretation of article VII,
section 11, Rudnik was permitted to keep his 14 years of
shop seniority in skilled trades department, even though he
had transferred out of that department in 1969.
It is readily apparent that such "clarification" is contrary
to the seniority transfer provision of article VI, section 7,
A." Equally important, however, if not more so, is the fact
that, in so "clarifying" article VII, section 11, permitting
Rudnik to bump into the Skilled Trades Division, the Re-
spondent and the Company applied the layoff and bumping
procedure under article VI, section 9, B, notwithstanding
that article VII, section 11 specifically provides that said
provision shall not apply. It holds that "seniority for the
Skilled Trades will be handled under a shop classification
plan for placing by bid, bump, hiring, layoffs and recalls,
instead of language in article VI, section 9, B. (Emphasis
supplied.) Thus, it cannot be said, as the Board was able to
do in Miami Copper, that the construction of the contract as
encompassed in the grievance settlement was a reasonable
one, for, as pointed out, on its face it appears to be contrary
to the provisions of the contract.
Under these circumstances, I find that the Respondent's
action in filing, processing, and settling Grievance No. 186
so as to accord Stanley Rudnik greater seniority in the
skilled trades division than that held by Donald Smith, and
thereby allowing Rudnik to bump Smith from his mainte-
nance job, was unlawfully motivated by the present union
leadership's demonstrated hostility toward Smith, growing
out of the latter's earlier protected activities while serving as
president of the Union. Accordingly, by such conduct, re-
sulting in Smith's unlawfully being laid off from a job to
which he was entitled, I find that the Respondent attempted
to cause and did cause the Employer to discriminate against
Donald Smith in violation of Section 8(a)(3) of the Act,
thereby violating Section 8(b)(2) of the Act. I further find
that, by such conduct, the Respondent restrained and
coerced employees of the Employer in the exercise of their
rights granted them under Section 7 of the Act in violation
of Section 8(b)(1)(A) of the Act.
Upon the basis of the above findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent , United Rubber, Cork , Linoleum &
Plastic Workers of America, Local 374, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Uniroyal, Inc., is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. By causing , and attempting to cause , Uniroyal, Inc., to
discriminatorily deprive Donald Smith of his maintenance
ii The second sentence of that provision holds that only during the first
month after transfer will an employee 's seniority be maintained in his old
department.
job in the skilled trades division the Respondent engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(b)(2) and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
IV THE EFFECT UPON COMMERCE OF THE
UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of Uni-
royal, Inc., as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the policies of
the Act.
It having been found that the Respondent discriminatori-
ly caused Donald Smith to be bumped from his mainte-
nance job in the Employer's skilled trades division on or
about the first of June 1972, it is recommended that the
Respondent make Smith whole for any loss of pay he may
have suffered as a result of its having caused Smith to be
deprived of his job by making payment to him of a sum of
money plus interest equal to that which he would have
earned but for the discrimination against him, in accor-
dance with the principles enunciated by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
It is also recommended that the Respondent rescind its
approval of the agreement by which Donald Smith was
bumped from his job in the skilled trades division, and that
the Respondent be ordered to cease and desist from causing
or attempting to cause Uniroyal, Inc., or any other employ-
er, to deprive employees of their jobs to which they are
entitled on a seniority basis and for which said employees
are qualified, except in accordance of the provisions of Sec-
tion 8(a)(3) of the Act.
Upon the foregoing facts, conclusions of law, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER i2
Respondent , United Rubber, Cork, Linoleum & Plastic
Workers of America, Local 374, its officers, agents, and
representatives , shall:
ii In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes
RUBBER WORKERS , LOCAL 374
1. Cease and desist from:
(a) Restraining or coercing employees of Uniroyal, Inc.,
or any other employer, in violation of Section 7 and Section
8(b)(1)(A) of the Act.
(b) Discriminatorily causing and attempting to cause
Uniroyal, Inc., to deprive Donald Smith, or any other em-
ployee, of his job to which he is entitled and for which he
is qualified.
(c) In any like or related manner restraining or coercing
employees in the exercise of any right guaranteed in Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make whole Donald Smith for losses he sustained, if
any, as the result of Respondent's discrimination against
him, computing the amount due in the manner set forth in
the section of this Decision entitled, "The Remedy."
(b) Rescind its approval of the agreement by which Smith
was allowed to be bumped from his maintenance job in the
Employer's skilled trades division.
(c) Notify immediately Uniroyal, Inc., and Donald
Smith, in writing, that it has no objection to Smith's employ-
ment in the maintenance job he formerly held in the skilled
trades division, and request that he be offered this, or an
equivalent, job.
(d) Post at its business offices in Chicago, Illinois, its
meeting hall, and all other places where notices to members
are customarily posted, a copy of the attached notice
marked "Appendix." 13 Copies of the notice, on forms pro-
vided by the Regional Director for Region 13, shall, after
being duly signed by an authorized representative of the
Respondent, be posted by it, as aforesaid, immediately
upon receipt thereof and maintained for at least 60 consecu-
tive days thereafter. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Promptly, upon receipt of copies of said notice from
the Regional Director, return to him signed copies for post-
ing by Uniroyal, Inc., it being willing, at the Company's
Chicago, Illinois, plant and office.
(f) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
123
WE WILL NOT cause or attempt to cause Uniroyal, Inc.,
to deprive Donald Smith, or any employee, of his job
to which he is entitled because of his experience of the
rights guaranteed him in Section 7 of the National
Labor Relations Act in violation of Section 8(b)(2) of
the Act.
WE WILL NOT restrain or coerce the employees of Uni-
royal, Inc., or of any other employer, in violation of
Section 8(b)(1)(A) of the Act.
WE WILL rescind our approval of the agreement by
which Donald Smith was allowed to be bumped from
his maintenance job in the Employer's skilled trades
division.
WE WILL pay Donald Smith any moneys he may have
lost as a result of his having been unlawfully bumped
from his maintenance job in the Employer's skilled
trades division.
WE WILL notify, in writing, Uniroyal, Inc., and Don-
ald Smith that we have no objection to the employment
of Smith in his former maintenance job in the skilled
trades division, and that we request that he be offered
this, or an equivalent, job.
UNITED RUBBER , CORK, LINOLE-
UM & PLASTIC WORKERS OF
AMERICA, LOCAL 374
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Everett McKinley Dirksen Build-
ing, Room 881, 219 South Dearborn Street, Chicago, Illinois
60604, Telephone 312-353-7572.