The Flintkote Co.

National Labor Relations Board - Board Decisions

Dec 10, 1964

149 N.L.R.B. 1561 (N.L.R.B. 1964)

THE TLINTKO'rE COMPANY 1561
ing, and to engage in any other concerted activities for the purpose of collective
bargaining or mutual aid or protection, or to refrain from any or all such
activities.
WE WILL offer to Aurelio Marquez Burgos immediate reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges and make him whole for any loss of pay he may have
suffered by reason of our discrimination against him.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of any labor organization, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8 (a) (3) of the Act.
CARIBE GENERAL ELLCTRIC, INC., AND
GENERAL ELECTRIC SWITCHCEAR, INC.,
Employers.
Dated------------------- By-------------------------------------------(President)
Dated------------------- By-------------------------------------_-----(President)
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 employees having a question concerning the meaning of the above notice or
concerning compliance with its requirements may inquire by mail, telephone, or in
person at the Board's Regional Office, 1506 Ponce de Leon Avenue, Santurce, Puerto
Rico, Telephone No. 724-7171.
The Flintkote Company and International Woodworkers of
America, AFL-CIO, Local 5-50. Case No. 15-CA-29281. Decemn-
ber 10, 1964
DECISION AND ORDER
On March 10, 1964, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the Respondent filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
149 NLRB No. 136.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the trial Examiner that the complaint should be
dismissed. We do not agree, however, with all of the Trial Exam-
iner's reasoning, but rely on the factors set forth below.
The facts, which are substantially undisputed, show that the
Respondent and the Union were parties to a collective-bargaining
agreement which by its terms was effective until October 15, 1963,
and contained a 60-day automatic renewal provision. The contract,
which set forth the employee classifications covered by it, also pro-
vided that differences as to its meaning would be settled by a 3-step
grievance procedure followed by mandatory arbitration. The parties
had customarily added a fourth step to the grievance procedure
before resorting to arbitration.
On February 19, 1963, the Respondent notified the Union that
effective February 25, it intended to eliminate certain job classifica-
tions by combining work assignments, but that no layoffs would
result. The Union nevertheless challenged this action on the ground
that such changes were in violation of the contract, and insisted that
the classifications remain the same until the 60-day renegotiation
period. The Respondent argued however, that the changes were a
matter of management prerogative, and were not covered by the
contract. The Respondent subsequently announced further changes.
On March 6, two employees filed a grievance alleging violation of
their seniority rights, and, on March 11, the Union amended the
grievance to allege a violation of the contract provision limiting
negotiation of contract changes to the 60-day period prior to the
termination date. The parties completed the three steps of the con-
tractual grievance procedure, as well as the customary fourth step,
with the Respondent maintaining that it had not, as the Union
claimed, violated the contract. Thereafter, the Union, instead of
proceeding to arbitration in accord with the contract, filed the instant
charge. The Respondent, in its brief filed with the Board, has indi-
cated its willingness to waive the contractual time limitations to
permit the Union to submit the issues to arbitration.
Under all the circumstances of this case, including the contractual
grievance and arbitration machinery, the position of the parties both
before and during the grievance procedure that a question of contract
interpretation was involved, and the Respondent's willingness to
proceed to arbitration, we deem it unnecessary to determine whether
there has been a violation of Section 8(a) (5) and (1) of the Act.
The special circumstances adverted to above impel us to the conclu-
sion that it would not effectuate the policies of the Act to issue a
THE FLINTKOTE COMPANY 1563
remedial order in this case.' Accordingly, We shall dismiss the
complaint.2
[The Board dismissed the complaint.]
1 See Sinclair Refining Company, 145 NLRB 732 ; Montgomery Ward it Co , Incorporated,
137 NLRB 418, 423
We reject the Trial Examiner ' s view for which he cites the Timken Roller Bearing case
that the Board ' s jurisdiction over unfair labor practices is ousted where the matter in
dispute may also be subject to grievance and arbitration procedures of a contract While
for reasons of policy we may decline to entertain a particular unfair labor practice case
in appropriate circumstances in this area , we do so as a matter of discretion and not for
lack of power Section 10 ( a) of the Act See Doyle Smith v Evening News Association,
371 U S 195 197 Of Lodge 743, International Association of Machinssts, AFL-CIO v.
United Aircraft Corporation, 337 F 2d 5 (CA 2). Moreover, in view of our disposition
of this case , we find it unnecessary to pass upon the Trial Examiner ' s findings that the
Respondent had satisfied its duty to consult with the Union prior to instituting the
classification changes, or that the Union, once it processed a grievance , had waived its
right to file a refusal - to-bargain charge with the Board
2 For the reasons stated in his concurring opinion in Cloverleaf Division of Adams Dairy
Co , 147 NLRB 1410 , and in accord with the Board ' s action in Dubo Manufacturing
Corporation , 142 NLRB 431 , Member Brown would not decide this case at this time.
Rather , he would withhold action pending arbitration under the parties ' own contractual
arrangement for resolving disputes.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and amendment thereto, filed on May 20 and August 30, 1963,
respectively, by International Woodworkers of America, AFL-CIO, Local 5-50,
herein called the Union, the Acting Regional Director for Region 15 of the National
Labor Relations Board, herein called the Board, issued a complaint on behalf of the-
General Counsel of the Board on August 30, 1963, against the Fllntkote Company,
Respondent herein, alleging violations of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act.
In its duly filed answer Respondent, while admitting certain allegations of the com-
plaint, denied the commission of any unfair labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher on
November 6, 1963, in Meridian, Mississippi, where all parties were represented by
counsel and afforded full opportunity to be heard, to present oral argument, and to file
briefs with me. Briefs were filed by Respondent and General Counsel on Decem-
ber 6 and 9, 1963, respectively.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of each witness appearing before me I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The Flintkote Company, Respondent herein, is a Massachusetts corporation with its
principal office in East Rutherford, New Jersey, and a plant in Meridian, Mississippi,
where it is engaged in the manufacture of building materials. In the course of its
manufacturing operations at its Meridian, Mississippi, plant Respondent manu-
factured, sold, and shipped from said plant products valued in excess of $100,000 to
points located outside the State of Mississippi. During the same period Respondent
purchased and received materials valued in excess of $100,000 which were transported
to its Meridian plant from States other than the State of Mississippi. Upon the fore-
going admitted facts I find and conclude that Respondent is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
It is conceded that International Woodworkers of America , AFL-CIO, Local 5-50,
the Union herein , is a labor organization within the meaning of Section 2(5) of the
Act and I so conclude and find.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Sequence of Events
Respondent and the Union, the certified representative of Respondent's production
and maintenance employees, together with its factory clerks, cafeteria employees, and
truckdrivers, maintained a contractural relationship pursuant to a collective-bargaining
agreement dated November 2, 1961, and a subsequent memorandum of agreement
dated November 15, 1962, and effective October 16, 1962.
On February 19, 1963, Respondent's plant manager, Glenn Ball, met with repre-
sentatives of the Union and notified them that effective February 25, Respondent
intended to eliminate the classification of storeroom clerk on the 3 to 11. p.m. shift by
combining that position with the position of wood scaling clerk. He further informed
them that they intended to effect other changes in the yard that would eliminate a
crane operator by reducing the yard work to a one-shift operation. The foregoing
changes, it was explained, would also eliminate the truckdriver on the second shift. In
announcing to the union representatives this intention to make these changes Ball
explained the economic necessity which prompted them and gave his assurance that
no layoff would result All of the foregoing was confirmed in writing thereafter by a
memorandum to Union President Kea
The union representatives challenged the Company's action, insisting that these were
changes from the existing contract arrangement and therefore a violation of the con-
tract itself. They, accordingly, insisted that the classifications in question remain in
status quo until the contract was reopened for negotiations. Specifically the Union
claimed that the Company's proposed changes were in violation of article 3, the recog-
nition clause; article 7, wages and job classifications; article 11, hours of work and
working conditions; article 18, seniority; article 26, terms of the contract; and exhibit
A of the contract, being the schedule of job classifications and rates.1
The Company persisted in its determination to make the classification changes,
claiming it to be a matter of management prerogative,2 and refused to revoke its
order effecting the change. The Company, through Plant Manager Ball, conveyed
this decision to the union representatives at a meeting with them on March 4, 1963.
Confirming this discussion by memorandum dated March 6, Ball stated as follows:
This will confirm the discussion between the Flintkote Company and the
Union Committee at a meeting which was held March 4, 1963.
The Company advised the Union that, by the combining of the storeroom and
wood scaling clerk jobs, along with the changing in inventory control proce-
dures, the Company is further reducing the storeroom personnel by one (1)
person.
This change is to become effective March 11, 1963.
Also, that the new combined classification is to be "storeroom-wood scaling
clerk" and that all employees working under this classification will be paid the
higher rate of pay, as the result of combining these duties.
Due to retirement of other employees, the above changes will not result in
any employee being laid off.
(S) Glenn'Ball
On the same day, March 6, two employees affected by the Company's proposed
classification change, A. J. Allen and J. M. Aust, filed a grievance pursuant to the
terms of the contract 3 claiming a violation of article 18 of the contract, relating to
seniority. When this 'grievance had passed the first step, a conference with the
employee's foreman, it proceeded to a meeting of company and union representa-
I The text of the foregoing provisions of the contract and others to be referred to here-
after are incorporated in this Decision as an Appendix
"The contract does not contain a management prerogative clause
3 Article 20, adjustment of disputes, outlines the three steps of the grievance pro-
ceduie and the arbitration clause applicable See Appendix for full text of the provision
THE FLINTKOTE COMPANY 1565
tves on March 6.4 At this meeting the Company gave consideration to the same
points initially raised by the Union, including its request to maintain the status quo,
Respondent refused, insisting it had not violated the contract. The third step in the
grievance procedure was effected by a meeting between company and union represen-
tatives on March 19. Meanwhile on March 11 the original grievance was amended
to allege a violation of article 26, paragraphs 72(b) and 73 of the contract, being a
requirement to give proper notification of intent to negotiate contract changes.
Included at the March 19 meeting were Ball for the Company, Union President Kea,
and International Vice President J. B. Hanna. The results of this meeting were con-
firmed by memorandum dated March 27, stating:
At the union's request, the company has further evaluated its position with
respect to subject grievance, but can find no violation of the current agreement
or past practice. We are merely directing our business in the most efficient
manner.
Consequently, the grievance must be denied.
(S) Glenn Ball
Thereafter another meeting was held on April 9 between the parties and, although
not contemplated by the grievance procedure, constituted a fourth step. At this
meeting the'Company's director of personnel, Robert J. Carlson, was present. Inter-
national Vice President Hanna credibly described the Union's position at this meet-
ing thus
At the meeting we continually or consistently asked the company to return the
people to original status and at the last meeting which we had with Mr. Carlson,
which we were in negotiations, he stated to us, we proposed to him that he pay
these people any money involved that they had lost, and we sat down and
worked out a procedure to go through in the event such an occasion arose any
more and he said that he couldn't do that, that if he even paid them that he
didn't have the authority at that time, he would have to talk to his boss, and
we requested when he came back in the afternoon and he said that Mr Weber
advised him that he couldn't pay anybody anything. So this is his answer that
if he granted any pay or even partial payment or any kind of compromise that
he would be admitting guilt on this question and he would see us in court.
So, we are here today.
Thus Carlson is described as speaking in behalf of the Company and repeating its
unwillingness to accede to the Union's demand for a return to the status quo.
At this stage of the usual grievance procedure it was customary to proceed to
arbitration.5 When the matter was referred to the union membership at a subsequent
meeting, however, the membership, according to Hanna, "instructed us that we not
take this case to arbitration; that we proceed to the Labor Board with a charge
against the Company for refusal to bargain or making arbitrary unilateral changes in
the contract, which we did."
Hanna further testified that union and company representatives have met and dis-
cussed the subject matter of the grievance subsequent to the filing of the charges in
the instant proceedings but these meetings have been fruitless. Among the matters
discussed in this regard was the Company's proposition that the matter be referred
to arbitration and the charges withdrawn. The Union refused to concede on this
point.
B. Analysis and conclusions
Basically the issues in this case may be reduced to a single proposition : May the
subject matter of a grievance be converted into an unfair labor practice simply by
the abandonment of the contractual grievance machinery at midpoint by one party,
the Charging Union herein, because the other party, Respondent , adheres to its initial
position and requests that the grievance procedure continue through arbitration, as
provided for by contract.
On any one of several applicable theories I fail to see a refusal to bargain.
4 Employee Dexter Torrence, a member of the grievance committee, testified that this
meeting occurred on March 8 . The written report of this meeting stipulated to by the
parties gives the date as March 6 I accept the March 6 date as conforming to the
mutual understanding of the parties.
5 The credited testimony of International Vice President Hanna. See Appendix, arti-
cle 20, paragraph 57(d).
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Factually, the most Respondent can be said to have refused was the Union's
counterproposal that the status quo be maintained until a new contract was nego-
tiated . General Counsel , however , would equate a refusal to bargain with a refusal
to grant a concession , Section 8(d) of the Act to the contrary notwithstanding.6
Here Respondent, without any suggestion of duplicity or bad faith , consulted with
the Union on the matter of instituting certain changes concerning the working con-
ditions of employees covered by the agreement . Thus Respondent complied with
the Board's basic requirement in this respect .7 Thereafter , on at least five separate
occasions the Union met with the Company, presented its objections to the Com-
pany's proposals , and made its demand that the changes not to be put into effect,
and at the last of such meetings , on April 9, even proposed that people affected by
the change be reimbursed for any loss they may have incurred.8 That the Company
refused this suggestion is as significant as was the Union 's earlier refusal to accept
the changes proposed . The sum total of these discussions , and the Union's counter-
proposal , it would seem, is the very essence of bargaining contemplated by the statute.
In any event it would appear that the Union wants the best of both worlds
namely; the the advantages of the first three steps-bargaining , without the hazards
of the last one-arbitration . Thus, having failed from the outset , the Union forsakes
the contract it accuses Respondent of violating , and comes to the Board . This unex-
plained abandonment of the orderly procedure agreed upon for the settlement of
disputes does not bespeak the modicum of good faith expected of a party charging
another with refusal to bargain,9 particularly in view of international Vice President
Hanna's testimony that on past occasions the parties had reported to arbitration as
prescribed by the contract (supra, page 1565 and footnote 5).
It is "now established law that where a dispute or `difference ' is subject to griev-
ance procedure and arbitration by reason of the bargaining agreement , that proce-
dure is exclusive and will be enforced ." 10 That the instant dispute "is subject to
grievance procedure" is conceded by the very fact that it proceeded through the steps
enumerated in the contract, and with mutual participation. It would mock the
recent developments of the law in this respect 11 to seriously contend that one party's
summary abandonment of a procedure which the court deems exclusive serves to
justify a belated charge of a refusal to bargain by the other party on the very same
subject. For this additional reason, therefore , I would conclude that the Union, by
electing to file and process the grievance on job changes placed its exclusive reliance
upon the agreed-upon method of settlement and thereby waived any rights it might
otherwise have had to complain that the Company was refusing to bargain with it.
Moreover , it is significant that the Union, in describing Respondent's alleged
wrongdoing , repeatedly couches it in terms of a violation of the contract . Lest there
be a lingering doubt, Respondent 's action was neither unilateral nor precipitate, but,
as shown above, was contemplated, in futuro, after ample notification to the Union
and discussion with it. This eliminates that particular variety of contract violation
from further discussion . Hence, if contract violation there was then it was upon a
dispute of interpretation not, as General Counsel suggests , upon a fait accompli or
deliberate action.12
At the hearing in this matter I requested General Counsel to supply me with
authority for the proposition that any substantial violation of a contract constitutes
an unlawful refusal to bargain, i .e., a per se violation . I received none, and my own
research discloses none. I have been referred to and am aware of scores of cases
outlining the parties ' continuing duty to bargain during the term of the contract.
O Section 8(d) of the Act provides that the bargaining obligation described therein
"does not compel either party to agree to a proposal or require the making of a concession
7 See Beacon Piece Dyeing and Finishing Co, Inc, 121 NLRB 953, 956
1 The credited testimony of International Vice President Hanna who testified there
might have been as many as 10 meetings.
° Cf. N.L R B. v. Indiana d Michigan Electric Company, 318 U S. 9, 18, Vaughn Bowen,
et W, 93 NLRB 1147, 1154
10 The Tiinkin Roller Bearing Co v. N.L R B, 325 F 2d 746 (C A 6), enfg 138 NLRB 15
11 Textile Workers Union of America v Lincoln Mills of Alabama, 353 U.S. 448;
Goodall-Sanford, Inc v. United Textile Workers of America, 353 U S 550, General Elec-
tric Co v Local 205 United Electrical, Radio and Machine Workers of America (UE ),
353 U S 547 International Harvester Company, 138 NLRB 923
122 In view of my finding of notification and discussion I find of no relevance those cases
cited to me where lack thereof was the determinate I refer specifically to Fibreboard
Paper Products Corporation, 138 NLRB 550; Town S Country Manufacturing Company,
Inc, 136 NLRB 1022; National Food Stoics, Inc., 142 NLRB 340, Central Illinois Public
Service Company, 139 NLRB 1407
THE FLINTKOTE COMPANY 1567
But none of these are to say that a differing interpretation of any portion of it, in
and of itself, violates that continuing duty to bargain. Respondent here simply
insisted upon its own position, and after bargaining, put its position into effect. If it
was wrong, if indeed it did not violate the contract, that is not a problem for our
solution. The Board has for years adhered to this position, stating
... we do not embark upon a course of policing and enforcing trade agree-
ments. If, after a full exchange of views and a sincere effort to compose differ-
ences, the parties to a trade agreement are left at an impasse concerning its
interpretation, application or modification, the matter is outside our hands.
If such a dispute involves questions of interpretation or application, it presum-
ably can be solved by the courts, under the applicable principles of the law of
contracts.13
This holding, it would seem, inspired the drafters of the Taft-Hartley Act to include
therein Section 301 which provides unions and employers alike ample opportunity to
bring suit for alleged violations of contracts such as is before us here. I, accordingly,
reject any suggestion that a violation of a collective-bargaining agreement, per se,
constitutes an unlawful refusal to bargain.
Upon analysis of each of the foregoing independent considerations, therefore, I
conclude and find that Respondent has not refused to bargain in violation of Section
8(a)(5) and (I) of the Act 14
Upon the foregoing findings and conclusions, it is recommended that the com-
plaint in this proceeding be dismissed.
13 Carroll's Transfer Company, 56 NLRB 935, 939
14 It must be noted that the posture of facts here does not place this case within the
ambit of those cases in which the Board has strongly relied upon the outcome of arbitra-
tion proceedings For example: International Union of Operating Engineers, Local 18,
AFL-CIO (Frazier Davis Construction Co.), 145 NLRB 1492; International Harvester
Company, supra; Spielberg Manufacturing Company, 112 NLRB 1080. In each of those
cases, unlike the instant one, an arbitration award was outstanding and the Board's
decision turned upon whether it would honor the award in preference to processing out-
standing unfair labor practice charges. Here, the Union having refused to proceed to
arbitration, the question of honoring an award never arose.
APPENDIX
ARTICLE I.-PREAMBLE
1. This agreement made and entered into this 2nd day of November , 1961 by and
between The Flintkote Company ( hereinafter referred to as the "Employer") and
the International Woodworkers of America , A.F.L.-C.I.O., (hereinafter referred to
as the "Union"), representing for the purpose of collective bargaining the employees
of the Employer at its Meridian, Mississippi , plant who come within the scope of this
Agreement.
* * * * *
ARTICLE III.-RECOGNITION AND SCOPE
4. The Employer hereby recognizes the Union as the sole agency representing its
employees for the purpose of collective bargaining pertaining to wages, hours and
other conditions of employment; for all hourly paid maintenance and production
employees including hourly paid employees of the Forestry Department, factory
clerks cafeteria employees and truck drivers, of The Flintkote Company at its Mer-
idian, Mississippi Plant as classified in Exhibit "A" attached hereto, excluding main
office clerical employees, watchmen and all supervisors with authority to hire, pro-
mote discharge, discipline or otherwise effect changes in the status of employees or
effectively recommend such action.
* * * * * * *
ARTICLE VII.-WAGES
14. The Employer agrees to continue its present practice of providing equal pay
for equal work.
15. The regular hourly rates of pay for the various employees covered by this
agreement by job classifications are attached hereto marked Exhibit "A".
16. When new jobs or departments are created the Employer shall negotiate the
wage rates of such new jobs with the Union . Where the Union finds that the condi-
tions affecting an individual job classification are substantially changed , the Union
may request in writing addressed to the Plant Personnel Manager to have the affected
job rates negotiated. The written request shall also contain the evidence which the
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union feels warrants such negotiations. The Plant Personnel, Manager shall then
determine whether conditions affecting an individual job classification are actually
substantially changed. If the Plant Personnel Manager accepts the evidence of the
Union, Management and the Negotiating Committee will meet to negotiate the case
or cases in question. If the Plant Personnel Manager does not accept the evidence
of the Union the question may be submitted as a grievance. If the Employer and
the Union do not reach an agreement as to whether the job rates should be negoti-
ated or as to the results of the negotiation, the question may be submitted as a
grievance. -
' 4 * 1 4 * 4 *
ARTICLE XI.-HOURS OF WORK AND WORKING CONDITIONS
25. The normal work week shall commence on Monday at 7 A.M. and shall con-
tinue for a period of seven (7) consecutive days. For payroll purposes the work
week shall commence on Sunday at 7 A.M and shall continue for a period of seven
(7) consecutive days. The work day shall commence at 7 o'clock in the morning
and end at 7 o'clock in the morning the next day. Forty (40) hours shall be deemed
to be the normal weekly working schedule and eight (8) hours shall be deemed to
be the normal daily working day schedule.
4 4 4-
ARTICLE XVIII.-SENIORITY
44. Department seniority shall prevail in the following departments: Board Mill,
Quality Control, Electrical, Maintenance, Yard, General, Forestry, Research, and
Fabricating. Fabricating Department shall include the following Subdivisions:
Stock Clerical (Cost and Storeroom Clerks)
Shipping
45. Seniority shall be defined as "the state of being older than another in point of
continuous service as recorded on the Employer's payroll as an employee" and all
workers retained in the employ of the Employer thirty (30) days shall be considered
as regular employees and placed on the seniority list from the date of employment.
46. All vacancies and new jobs created shall be posted on the main bulletin board
within two (2) days of occurrence provided the opening occurs prior to Thursday
of any week, otherwise the posting will be made commencing on Monday of the
following week, and shall remain posted for three (3) regular working days there-
after to give opportunity to employees to make application in writing for same within
the specified posting period. Employees must file applications with both the Employer
and the Union before any employee's bid will be considered Such applications
shall be considered in order of seniority by departments except that the Employer
shall give consideration to the ability of the applicant to fill the requirements of the
job. In cases where the senior applicant is not considered qualified by the Employer,
the Union Committee shall be notified accordingly and the Plant Manager shall hear
and give consideration to any facts the Union Committee wishes to present before a
decision is rendered. However, the Employer reserves the right to temporarily place
a man on these jobs until applicants have been chosen in accordance with this agree-
ment. The applicant selected for a job shall be placed on the new job within ten (10)
days. Any employee selected to fill a vacancy shall be on probation for a period of
thirty (30) days (actual time on new job) and if within that period is found to be
incompetent in the estimation of the Employer he shall be reinstated in his former
job and another selection shall be made 'in the same manner if competent applicants
are available. If vacancies or new jobs cannot be filled from the applicants within
the department where they occur then such vacancies or new jobs shall be filled from
plant-wide applications.
50. When it becomes necessary to reduce the working force, seniority rights by
department shall prevail and employees will be demoted or laid off within a depart-
ment in reverse order of their promotion within their department. Individuals so
laid off must report to the Plant Personnel Manager in person, or by mail, every third
month following such lay off and shall be given written confirmation of each report.
If an employee who has transferred from another department is affected by the
reduction of the work force of the department into which he has been transferred,
he shall have the right to return to the department from which he had transferred,
into any job he had held in such department, with the departmental seniority he held
at the date of his transfer from his former department, provided his seniority entitles
him to the job.
54. A seniority grievance to be accepted must be put in writing and turned into
the Union within fifteen (15) days after the promotion or demotion occurs,' and
immediately brought to the attention of the Employer.
* * s *
THE FLINTKOTE COMPANY 1569
ARTICLE XX.-ADJUSTMENT OF DISPUTES
57. Should differences arise between the Employer and any of its employees as
to the meaning and application of this agreement or if any other controversy or
grievance arises an earnest effort shall be made as promptly as possible to settle each
difference in the following manner.
(a) The aggrieved employee and/or the Shop Steward and the Foreman of
the department in which the alleged grievance occurred shall endeavor to arrive
at a mutually satisfactory adjustment thereof within twenty-four (24) hours.
(b) If satisfactory settlement is not reached at the first step, the grievance
shall be reduced to writing and taken before the Shop Committee The Shop
Committee will then meet with the Superintendent of the division involved and
the Plant Personnel Manager who shall attempt to effect a settlement within
forty-eight (48) hours.
(c) If a satisfactory settlement has not been reached by the above procedure
within five (5) working days the matter shall be considered at a meeting of the
Shop Committee, the Plant Personnel Manager and the Plant Manager or his
designated representatives at which time general representatives of the Employer
and/or designated representatives of the International Union or the Local Union
shall be present.
(d) Any grievance which is not satisfactorily adjusted after the initiation of
conferences under Step (c) above, shall be referred to arbitration within thirty
(30) days as follows-
The Employer shall select one member and the Union shall select one.
The two thus named shall select a third who shall act as Chairman. If,
however, after two (2) days they are still unable to agree upon the third
member, then the Federal Mediation and Conciliation Service shall be
utilized for the appointment of the third member
The Employer and the Union shall be requited to select their arbitra-
tion members within a period of two (2) days after it is determined that
arbitration shall be necessary.
After the Arbitration Board has been selected in the foregoing manner,
it shall meet and carefully study the grievance, hearing witnesses from
both parties. The Union and Employer shall determine who their respec-
tive witnesses will be and shall be privileged to hire legal counsel if it is
deemed necessary.
At the conclusion of the Board's hearings, which shall not exceed ten
(10) days except by mutual consent of both parties involved, a fifteen (15)
day period shall be allowed for the filing of post hearing briefs. Subsequent
to such filing the Board shall render a decision in the matter. The decision
by a majority of the Board shall be final and binding on the Employer, the
Union and the aggrieved person or persons.
58. The jurisdiction of the Arbitration Board is fixed and limited by this agree-
ment. It has no power to add to or change any of the terms of this Agreement
without mutual consent of both parties Issues presented to the Arbitration Board
which are not within its jurisdiction shall be returned by the Board without decision
and without recommendation
59. The Employer and the Union shall each bear the expense of the Arbitrator
they name and one-half the expense of the third Arbitrator.
60. Any discharge grievance must be presented within one (1) week after dis-
charge. Any employee claiming to have been discharged improperly for unjust cause
shall enter his claim or grievance within one (1) week and will be returned to his
job and paid for the time lost should his claim be upheld through the grievance
procedure. The Arbitrator will set the amount of back pay reimbursement, if any,
up to a maximum of all the employee's lost time while off the Employer's payroll.
ARTICLE XXVI -CONTRACT TERM
72 This Agreement shall be effective as of October 16, 1961 and shall remain in
full force and effect through October 15, 1963 and yearly thereafter unless termi-
nated, modified or amended in accordance with the following:
(a) Upon written notice at least sixty (60) days immediately prior to October 16,
1962 either party shall have the right to reopen the contract for the discussion of
monetary issues only. Should the parties fail to agree on these issues by October 15,
1962, the Union, upon thirty (30) days' written notice, shall have the right to strike
and the Company, upon thirty (30) days' written notice, shall have the right to lock
out, the provisions of Article XXI notwithstanding.
7 70-07 6-6 5-v o f 149-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon written notice at least sixty (60) days immediately prior to October 16,
1963 either party may terminate this agreement or make such changes or amend-
ments as may be agreed upon. If the parties are unable to agree upon such modifica-
tions by October 15, 1963, either party shall have the right upon thirty (30) days'
written notice to terminate the Agreement.
73. Notifications referred to above shall be sent by Registered Mail to the Em-
ployer or to the Union's Secretary at their respective Meridian, Mississippi addresses.
EXHIBIT "A"
SCHEDULE OF JOB CLASSIFICATIONS AND RATES
Stock Clerical Department
Storeroom clerk______________ $2.05 Utility clerk_________________ $2.21
Checking clerk_______________ 2. 14 Wood scaling clerk ----------- 2.07
Yard Department
Slasher operator______________ $1.96 Pool crane operator---------- $2.53
Truck driver________________ 1.89 Department utility ------------ 1.96
Crane operator_______________ 2.68
Teamsters Local Union No. 174, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Independent [ Consolidated Fruit and
Produce Company] and Earl C. Gann. Case No. 19-CB-997.
December 11, 1964
DECISION AND ORDER
Upon a charge duly filed by Earl C. Gann, the General Counsel of
the National Labor Relations Board, by the Director of Region 19
on June 29, 1964, issued a complaint against Respondent Teamsters
Local Union No. 174, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, In-
dependent, alleging that the Respondent Union had engaged in and
was engaging in unfair labor practices within the meaning of Section
8(b) (1) (A) and (2) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly served upon
the Respondent Union and the Charging Party. The Respondent
Union filed an answer to the complaint denying the commission of the
alleged unfair labor practices.
On August 26, 1964, all parties to this proceeding entered into a
stipulation of facts. The parties agreed that the formal papers and
the stipulation of facts, together with the documents incorporated by
reference therein, constitute the entire record in the case, and that no
oral testimony is necessary or desired by any of the parties. The
parties further waived a hearing before a Trial Examiner, the mak-
149 NLRB No. 143.