Great Lakes Carbon Corp.

National Labor Relations Board - Board Decisions

May 28, 1965

152 N.L.R.B. 988 (N.L.R.B. 1965)

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that they cease and desist therefrom and take certain affirmative action
designed to remedy the unfair labor practices and otherwise effectuate the policies
of the Act.
CONCLUSIONS OF LAW
1. Northwestern, Union Oil, and Texaco are, each of them , employers engagedin commerce , and the Respondents , and each of them , are labor organizations, allwithin the meaning of the Act.
2. By inducing and encouraging employees of Northwestern and other employers
to engage in strikes or refusals in the course of their employment to perform serv-
ices, with the object of forcing or attempting to force Northwestern and other
employers to cease doing business with Dr} wall, Raingutter, and Cheek, respectively,
the Respondents and each of them have engaged in and are engaging in unfair labor
practices affecting commerce within the meaning of Sections 8(b) (4) (i) and (ii) (B)
and 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Great Lakes Carbon Corporation and J . P. Pritchard , Bobby Ray
Thompson and Ralph Benjamin Whetstine and International
Chemical Workers Union , Local 427, Party to the Contract.
Cases Nos. 11-CA-2354, 11-CA-2362-2, and 11-CA-2362-3.
May 28, 1965
DECISION AND ORDER
On December 21, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision together with a supporting brief, the General Counsel
filed cross-exceptions and a supporting brief, and the Respondent filed
a brief in answer to the General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, 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, finding merit in certain of the General Counsel's excep-
tions, hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, except as modified herein.
Following the conclusion of an economic strike in 1959, Respondent
Great Lakes Carbon Corporation and International Chemical Workers
Union, Local 427, hereinafter called the Union, executed a collective-
bargaining agreement containing clauses which, on their face, granI ed
152 NLRB No. 103.
GREAT LAKES CARBON CORPORATION 989
preferred plant and departmental seniority to strikers and to striker-
replacements who reported for work during a certain period prior to
the conclusion of the strike. These provisions have been embodied
without change in the parties' 1962 contract, which is currently in
effect. The Respondent admitted in its answer and through its attor-
ney at the hearing that it applied and enforced the aforesaid super-
seniority provisions against Charging Parties Pritchard, Thompson,
and Whetstine by awarding available job opportunities to other
employees who, although junior in terms of length of company service
and other seniority provisions in the agreement, were senior to the
Charging Parties solely by virtue of the superseniority granted them
by the contract. In seeking redress, the Charging Parties filed their
charges upon which the complaint in this case is based during the
months of February and March of 1964, less than 6 months after the
Respondent's affirmative action caused the job opportunity losses
referred to above.
1. The Trial Examiner found, and we agree, that the above-described
seniority provisions which the Respondent applied, enforced, and gave
effect to within the statutory 10(b) period violate Section 8(a) (1)
and (3) of the Act in that they discriminate against the seniority rights
and privileges of employees who refused to abandon a lawful strike.
2. The Trial Examiner further found, and we likewise agree, that
the Respondent violated the same section of the Act by precluding
employees Pritchard, Thompson, and Whetstine from obtaining the
job opportunities they would have had but for the Respondent's appli-
cation and enforcement within the 10 (b) period of the unlawful senior-
ity provisions required by the contract.
In reaching these conclusions, however, the Trial Examiner also
found that because of "the [General Counsel's] disclaimer [at the hear-
ing] of reliance on the invalidity of these provisions on their face ...
and the absence of allegations that the execution of the agreement was
itself invalid," and also because the remedy would not be affected, it
was unnecessary to consider the General Counsel's contention that the
superseniority provisions are invalid on their face. The General Coun-
sel points out, however, and the record shows, that the General Counsel
not only raised this contention at the hearing, but that his entire case
was predicated thereon, and he consequently excepts to the Trial
Examiner's failure to find that the above-described superseniority pro-
visions are invalid on their face. We find merit in the General Coun-
sel's position.
The gravamen of the instant unfair labor practices rests upon the
Respondent's barring of job opportunities to employees Pritchard,
Thompson, and Whetstine within the 10 (b) period pursuant to super-
seniority provisions contained in a contract which was executed outside
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 10(b) period. Therefore, in order to sustain our findings herein,
it is essential that we find, as we do, that independently of the legality
of the execution of the contract,' the provisions themselves are di8-
crinzvn,ator°y on their face. Accordingly, we find, in agreement with
the General Counsel, and on the authority of the closely parallel
Whiting Milk Corporation case 2 and the cases therein cited, that the
Respondent's application and enforcement within the 10(b) period of
seniority provisions which are invalid on their face violates Section
8(a) (1) and (3) of the Act, and we shall, therefore, issue an appro-
priate order.3
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, Great Lakes Carbon Corporation, Morganton, North
Carolina, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Enforcing, applying, or giving effect to the superseniority, or
preferred seniority, provisions of its collective-bargaining agreement
with International Chemical Workers Union, Local 4'27, which dis-
criminates against any of its employees with respect to seniority or
job opportunities, or any other aspect of their employment relationship
with Respondent Company, on the basis of their strike activity.
(b) Discouraging membership of employees in the aforesaid Union
by discriminating in regard to their job opportunities, or their hire,
tenure, or any term or condition of employment on the basis of their
strike activity.
(c) Interfering with, restraining, or coercing any of their employ-
ees in like or related manner in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Eliminate from its collective-bargaining agreement with the
aforesaid Union any provision granting superseniority or preferential
treatment to employees on the basis of whether they had or had not
returned to work or been hired during a. strike.
1 Compare Local Lodge No. 1424 , International Association of Machinists v N.L R.B.
(Bryan Manufacturing Company ), 362 U S 411, 419-420, where a union -security clause
which was lawful on its face but which had been entered into more than 6 months be-
fore the charges were filed could be found discriminatory only by finding an unfair labor
practice in the initial execution of the contract during the barred period . See also
Bowen Products Corporation , 113 NLRB 731 , to the same effect
2 Whiting Milk Comporation , 145 NLRB 1035; of Local Lodge No 1424, International
Association of Machinists v NL.R.B. ( Bryan Manufacturing Company ), supra, at 423
3In finding that Respondent enforced a contract unlawful on its face, we adopt, with-
out necessarily agreeing with all of his rationale , the Trial Examiner' s rejection of
Respondent ' s defense based upon the existence of its contractual grievance procedure
GREAT LAKES CARBON CORPORATION 991
(b) Offer to employees J. P. Pritchard, Bobby Ray Thompson, and
Ralph Benjamin Whetstine the job opportunities they would have
enjoyed but for the discrimination against them occasioned by the
application of the superseniority provisions of the collective-bargain-
ing agreement with the aforesaid Union, without prejudice to their
seniority or the seniority of any employee, and make them whole for
any loss of earnings suffered as a result of such discrimination. Back-
pay shall be computed on a quarterly basis as provided in F. W. Wool-
wortl^ Company, 90 NLRB 289, with interest added at the rate of 6 per-
cent per annum, as provided in Isis Pbumabing dl Heating Co., 138
NLRB 716.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and determine the amount of
backpay due, and the rights of the employees under the terms of this
Order.
(d) Post at its plant in Morganton, North Carolina, copies of the
attached notice marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for Region 11, shall, after being
duly signed by the Respondent's authorized representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 11, in writing, within
10 days from the date of this Order, what steps Respondent has taken
to comply herewith.
A In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT enforce, apply, or give effect to the supersenior-
ity, or preferred seniority, provisions of our collective-bargaining
agreement with International Chemica, -iVorkers Union, Local
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
427, which discriminates against employees with respect to senior-
ity, job opportunities, or any other aspect of employment on the
basis of their strike activity.
WE WILL NOT discourage membership of employees in the afore-
said Union by discriminating in regard to their job opportunities
or their hire, tenure, or any term or condition of employment on
the basis of their strike activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL eliminate from our collective-bargaining agreement
with the Union any provision granting superseniority or preferred
treatment of employees on the basis of whether they had or had
not returned to work or been hired during a strike.
WE WILL offer to J. P. Pritchard, Bobby Ray Thompson, and
Ralph Benjamin Whetstine the job opportunities they would have
enjoyed but for our discrimination against them, and wE WILL
make them whole for any loss of earnings suffered by reason of
the discrimination against them.
GREAT LAKES CARBON CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem,
North Carolina, Telephone No. 723-2911, if they have any questions
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
The complaint herein, as amended ( issued June 30, 1964 ; charges filed February 13
and 24 and March 23 and 26, 1964 ), alleges that the Company has violated
Section 8 ( a) (1) and (3) of the National Labor Relations Act, as amended , 73 Stat.
519, by maintaining in effect and enforcing a collective -bargaining agreement which
contains strike superseniority provisions ; and refusing to offer certain jobs to Pritchard
and Thompson and transferring Whetstine , all because of said seniority provisions.
Citing compliance with the collective -bargaining agreement , the answer denies
the allegations of violation. Various defenses raised and argued at the hearing and
in the Respondent 's brief call for analysis of the Act and of leading cases interpret-
ing it.
A hearing was held before Trial Examiner Lloyd Buchanan at Morganton, North
Carolina, on August 18, 1964. Pursuant to leave granted to all parties , briefs have
been filed by the General Counsel and the Company, the time to do so having been
extended . By agreement of all counsel, corrections are hereby made as listed in a
letter dated September 30 from counsel for the Company, said letter being received
as Trial Examiner 's Exhibit No. 1
I commend all counsel for their able assistance in presenting this interesting issue
and for their cooperation in avoiding lesser issues which could have involved detailed
evidence at the hearing and lengthy consideration at this stage even if ultimately
unnecessary.
GREAT LAKES CARBON CORPORATION 993
Upon the entire record in the case, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY' S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Delaware corporation, is engaged
at its Morganton, North Carolina, plant in the manufacture of carbon and graphite
electrodes; that during the year immediately preceding issuance of the complaint it
manufactured, sold, and shipped finished products valued at more than $100,000
from said plant to places outside the State of North Carolina, and caused goods valued
at more than $100,000 to be shipped directly to said plant from places outside the
State of North Carolina; and that it is engaged in commerce within the meaning of
the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The contract
A collective-bargaining agreement entered into between the Company and the
Union in 1957 provided for seniority according to date of hire except in the mainte-
nance department and in some other respects not here applicable. During the course
of an economic strike in April-June 1959, the Company hired replacements and
told them that they would be given "retention protection." Various strikers, we are
told, returned to work on June 25; the strike was settled on June 30, 1959. The
following retention protection or strike supersen:ority provisions were embodied in
collective-bargaining agreements between the Company and the Union, executed on
or about July 8, 1959, and December 27, 1962: 1
6.02 For the purposes of this agreement, plant seniority is defined as the
length of an `employee's' (Section 2.02) present continous employment at the
Morganton plant without a break in his seniority subject to the applicable provi-
sions of this Agreement, subject further to the following conditions and
limitations:
(a) Individuals who were hired as replacements for striking employees
during the period April 30, 1959, and 6 P.M., June 30, 1959, and strik-
ing employees who returned unconditionally during the same period, shall
have plant seniority over all other employees and among these two groups
such seniority shall be in the order they were hired or returned to work
during this period , as the case may be, it being the intention to combine
these two groups of employees into one plant seniority list.
(b) Striking employees who returned after the strike was settled on
June 30, 1959, shall have the same relative plant seniority in relation to each
other as they had prior to the strike, but such plant seniority shall be less
than the plant seniority granted in sub-division (a) above.
(c) Employees who were not returned after the strike but were not in
the category of a replaced employee, shall have the same relative plant
seniority among themselves and the employees covered by paragraph (b)
above that they enjoyed prior to the strike but their plant seniority shall
always be less than that of those granted in sub-division (a) above.
6.03 For the purposes of this Agreement, departmental seniority is defined
as the length of the employee's present continuous employment in the depart-
ment in which he is currently permanently employed as a result of bidding on a
permanent vacancy within a job classification or permanently assigned to a job
classification in which there were no other qualified bidders. For the purposes
of this provisions, classifications in the respective departments are listed in
Appendix A.
(a) Individuals who were hired as replacements for striking employees
during the period April 30, 1959, and 6 P.M., June 30, 1959, and striking
employees who returned unconditionally during the same period shall have
departmental seniority over all other employees and among these two
'The latter agreement , effective November 26, 1962 , by Its terms expires on Novem-
ber 25, 1965. It is now admittedly maintained in effect and enforced
789-730-66-vol. 15 2-6 4
'994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
groups such seniority shall be in the order they were hired or returned to
work during this period, as the case may be, it being the intention to com-
bine these two groups of employees into one departmental seniority list.
(b) Striking employees who returned after the strike was settled on
June 30, 1959, shall have the same relative departmental seniority in rela-
tion to each other as they had prior to the strike but such departmental
seniority shall be less than the departmental seniority granted in sub-
division (a) above.
(c) Employees who were not returned after the strike but were not in
the category of a replaced employee shall have the same relative depart-
mental seniority among themselves as the employees covered by paragraph
(b) that they enjoyed prior to the strike but their departmental seniority
shall always be less than that of those granted in sub-division (a) above.
The Company contends that the offer of preferential treatment to replacements
and returning strikers did not prolong the strike, and that the Union did not object
to such treatment. The Union counters that the Company's promise of super-
seniority did have an effect on the strike, and it was compelled to agree in order to
save jobs. That the Union did object is suggested by its filing of charges with the
Board both in 1959 and in 1962. The issue before us is not whether or not the
strike was prolonged by any unfair labor practice; the General Counsel has conceded
that it was an economic strike. The question of waiver will be considered infra,
with the other defenses raised by the Company.
The issue of strike superseniority is readily stated Without our referring to legis-
lative history or entering upon learned disquisitions, it can be readily determined,
subject to the defenses raised and most ably argued. While the authority of the
bargaining agent is indeed broad, it is not unlimited. We need not decide whether,
if it willingly entered into the agreements for strike superseniority, the Union
exceeded possible bounds of its authority and failed in its duty to represent all of
the employees fairly and equitably, due allowance being made for valid exercise of
its discretion The determination can be based on broader grounds.
Whether the Union did not object, as the Company claims, or whether the Union
was under compulsion to agree, we have here no question of lawful replacement of
strikers. The attempt was made, rather, to prefer by grant of superseniority those
who did not strike (or who abandoned the strike) over those who did. But such
preference is unlawful; and employees' recognized seniority rights cannot be thus
bargained away by an agreement to give greater rights to others.2
It may not add anything worthwhile to note, on the authority of Jewel Tea Coln-
pany,3 that any alleged intent to further the overall welfare of the employees as
agreed upon and presumably determined by a collective-bargaining agreement can-
not be permitted to thwart or nullify established law. I find that the enforcement
and giving effect to the strike superseniority provisions is pinna facie violative of
Section 8(a)(1) and (3) of the Act, subject to consideration of the 6-month statu-
tory limitation, infra.
We come now to the various defenses raised by counsel for the Company. Although
not so stated by him, it may be recognized that his very experience and knowledge
of the law led to embarrassment or frustration over the Supreme Court's reversal in
1963 of the May 1962 decision of the circuit court of appeals upholding such prefer-
ential seniority .4
The first defense raised is that article XVIII of the collective-bargaining agreement
provides for the adjustment of differences by grievance and arbitration procedure.
We can judicially notice that in Case No 11-CA-1514 (1959) and Case No. 11-
CA-1939 (1962) the Regional Director dismissed charges of preferential treatment
of employees based on the preferential treatment provided for by the superseniority
arrangement. The dismissals were on those occasions upheld by the General Coun-
sel. It is not disputed that in 1960 the Union went to arbitration over the super-
seniority provisions in the then current 1959 contract, the decision there was
apparently in favor of the Company.
2 Dre Resistor Corporation, 132 NLRB 621, 631, Old 373 U S 221 See also on remand,
sub nom. I U El, Local 613 v N L R B , 328 F. 2d 723 (C A 3) The Borg-Warner case
cited in Erie Resistor is noted infra in connection with the alleged waiver
S Jewel Tea Company, Inc. v. Associated Food Retailers, etc , 331 F. 2d 547, 548
4 Also in May 1962, superseniority was found violative Sioarco, Inc v. NLRB,
303 F. 2d 668 (CA. 6). The action taken vis-a-vis the three employees, infra, was
presumably with full knowledge of the 1963 decision [Elie Resistoi Coip, supra].
GREAT LAKES CARBON CORPORATION 995
With full awareness of Warrior & Gulf 5 and other cases cited by the Company,
and Section 203(d ) 6 of the Act , we must also consider Section 10 ( a) 7 and the
Board's general responsibility as set forth in Section 1(b).8 That there may be con-
current jurisdiction and conflicting decisions between an arbitrator and the Board
was recognized in Carey v . Westinghouse Electric Corpolation . 0 This would appear
to dispose of the argument that , because of the current contract, the violations here
alleged are subject to the grievance procedure and arbitration exclusively and that
the Board lacks jurisdiction.
While, therefore , "neither existence of an agreement to arbitrate nor a rendered
award can preclude the Board from exercising its statutory jurisdiction ," 10 the
Board in the Spielberg case 11 laid down certain conditions under which it would
accept an arbitrator 's decision , among them that "the decision of the arbitration panel
is not clearly repugnant to the purposes and policies of the Act ." But to the extent
that the Company relies on it , an arbitrator 's award which upheld superseniority
provisions since found by the Supreme Court to be violative is now "clearly repug-
nant" and not to be followed after such decision by the Supreme Court.
Finally, while the Board might, following Dubo,12 defer action pending arbitra-
tion, there has not here been either a request for such deferral nor an invocation of
the arbitration procedure . There is no reason for the Board to abdicate its respon-
sibility entirely or to withhold its process for the possibility that the arbitration pro-
cedure may be invoked . If reference has in the past been made to "the slow and
creaking procedure ," 13 as the result of the parties ' "pride of opinion , ill temper, and
frustration ," these elements are not here present and we have no pending effort by
the parties to pursue any other remedy: no such charge will here lie as we are well
on our way to disposition.
The second defense is that finding of violation is barred by the 6 -month statutory
limitation . The Company 's position in this respect might be tenable , other consid-
erations aside, under the Bryan decision 14 but for the disclaimer of reliance on the
invalidity of these provisions on their face , i.e., on the mere execution of the con-
tract, and the absence of allegation that execution of the agreement was itself
invalid. 15 The allegation here is that maintenance and enforcement of the agree-
ment within the statutory period is violative.
In Lundy Manufacturing Corporation,16 the Board following a remand based on
Bryan , declared that it would make no finding that the employer violated the Act
"by maintaining or by giving effect" to its pre-6-month contract. That it had in
mind mere continuance of the contract rather than a "giving effect " appears from
its immediately following reference to the "events predating the limitations period."
5 United Steelworkers of America v Warrior d Gulf Navigation Co , 363 U S. 574.
0 "Final adjustment by a method agreed upon by the parties is hereby declared to he
the desirable method for settlement of grievance disputes arising over the application or
interpretation of an existing collective -bargaining agreement. . . .
7 "The Board is empowered , as hereinafter provided , to prevent any person from
engaging in any unfair labor practice ( listed in section 8 ) affecting commerce This
power shall not be affected by any other means of adjustment or prevention that has
11been or may be established by agreement , law, or otherwise . . . .
I It is therein declared to be the purpose and policy of the Act , inter alma, " to provide
orderly and peaceful procedures " and "to define and proscribe practices on the part of
labor and management " with respect to the other provisions of the Act.
9 375 U . S. 261.
10 U.L. v. Worthington Corporation , 236 F. 2d 364 , 368 (C .A. 1). See also Local 743,
International Association of Machinists V. United Aircraft Corporation , 337 F. 2d 5
(C.A 2), holding that Board action is not barred even by an arbitration agreement entered
into to bar any "recourse whatsoever " under any State or Federal laws.
11 Spielberg Manufacturing Company, 112 NLRB 1080, 1082.
12Dibo Manufacturing Corporation, 142 NLRB 431.
13 N.L R .B. V. Roscoe Skipper, Inc , 213 F. 2d 793, 794 (C A. 5).
14 Local Lodge No 1424, International Association of Machinists v. N.L R B. (Bryan
Manufacturing Company ), 362 U.S. 411
15 Because of that disclaimer at the hearing , I do not consider the General Counsel's
argument in his brief that violation be found because the provisions are invalid on
their face , citing Whiting Milk Corporation, 145 NLRB 1035 . Consideration of this
argument might in any event be labeled not only unnecessary but "superfluous" ( to bor-
row a unique term ) since the remedy would not thereby be affected
16 136 NLRB 1230, 1232
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the authority of Bryan and Lundy, execution and continuation or maintenance
of the 1962 agreement cannot be found to be violative. But under his allegation of
enforcement, the General Counsel has cited the agreement provision that vacation
preference is governed by plant seniority, previously defined in the superseniority
sections quoted. While the General Counsel points out that layoffs are also affected
by the superseniority provisions, there is no evidence of any layoffs or such "events"
during the limitations period. But the January-February period for selecting vaca-
tions granted throughout the plant is within the 6-month period; and it may certainly
be assumed that all, most, or some of the employees exercised their rights in this
respect . Violation occurred when the Company enforced, gave effect to, and
applied the agreement within the statutory period. (Additional enforcement and
further events are considered infra in connection with the named discriminatees.)
The Company also argues that the Board cannot substitute for the superseniority
provisions in the agreement a provision for seniority according to date of employ-
ment. This, it is claimed, would deprive the Company of its right to seek and
obtain other and lawful seniority provisions. The answer to this is that the Com-
pany was not deprived of any choice of a lawful provision: it relied on its under-
standing of the law and selected a provision which was thereafter declared to be
invalid. If there was deprivation, it was committed by the Company when it deprived
itself of opportunity to adopt, if any new plans, lawful ones. Nor can the Company
transfer to the General Counsel the burden of extricating itself from the conse-
quences of its own acts. Whatever the Company's or the General Counsel's impres-
sion of the law in June 1962, certain action was subsequently declared unlawful,
and the Company as is here charged is liable for the action which it has since
committed.
Further with respect to a claim of imposition on the Company of a provision for
seniority according to the date of employment, such seniority was general in the
earlier agreement and, but for the supersemority provisions, was continued in the
current contract. It now applies, as noted supra, to vacations and layoffs, and there
is nothing to suggest that a similar provision would not have been continued gen-
erally but for the adoption of the strike supersemority provisions in 1962. With this
likelihood thus indicated, it can hardly be said that the Company was deprived of a
choice or would be so deprived by substitution of the earlier provision for that
which it unlawfully adopted.
If the defense of estoppel refers to the dismissal by the Regional Director and the
General Counsel of the 1959 and 1962 charges, those rulings on the law would not
bar contrary rulings with respect to the recent events and on the basis of the law
as later declared. The Board would not be estopped even had the earlier ruling
been its own. Whether considered in terms of estoppel or waiver, as urged by the
Company, the earlier administrative determinations could not confer on the Company
a vested right, after the law has been differently declared, to act or to continue to
act contrary to such later declaration. With disclaimer of invalidity based on mere
execution of the contracts, there is no question of penalizing the Company for its
former acts in reliance on the dismissals by the Regional Director and the General
Counsel. We are concerned with enforcement of a collective-bargaining agreement
after the Supreme Court's decision on the issue involved and within the 10(b) period.
The fifth defense urged is that the Union waived its rights and any claims for
relief when it agreed to the superseniority provisions in 1959 and 1962. While the
three employees are the Charging Parties here, it must be recognized that with respect
to both the agreement and the separate discrimination against them, infra, the Union
has been their agent and even now is allied with them in this proceeding. But it
was pointed out in Borg-Warner,17 citing authority, that:
. as was said by the court in another context, "The most that can be inferred
from the union's action [ in entering into a contract] is that the advantages of a
contract in hand outweigh those which the union might later obtain...... As
for any waiver by the International as it urged the Local to get the men back
to work and sign a contract, submission after an unsuccessful strike is hardly
an ironing out of differences or a waiver of either statutory rights or of viola-
tion of those rights....
17 Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, 1327 See also same
case on remand, 121 NLRB 1492, 1495: "As a matter of practice, the Board has exercised
its discretion and refused to be bound by any settlement agreement or arbitration award
where such settlement agreement or award was at odds with the Act or the Board's
policies " Cf. footnote 2, supra.
GREAT LAKES CARBON CORPORATION 997
Entry into an agreement does not exculpate the Company from its violation
of the Act.... '[T]he Board's process is not to be thwarted by any waiver even
if without an element of compulsion or necessity. The Board has recently held
again that an agreement between the parties does not render a case moot or
affect the Board's power, in its discretion to issue a remedial order.
The defense of waiver fails.
B. The alleged discrimination against Pritchard, Thompson, and Whetstine
The defense relating to grievance and arbitration procedure under the contract,
cited with respect to the allegations of discrimination against the three employees, has
been considered supra. With respect to denial of job opportunities to Pritchard,
Thompson, and Whetstine by the provisions of sections 6.02 and 6.03 of the agree-
ment (this does not cover the extent or amount of loss in each case), the Company
argues that, even if those sections be invalid, it does not follow that the three would
have obtained the job opportunities claimed for them. That argument is itself based
,on the asseveration that, if those sections are invalid, no seniority provisions exist
on which a determination can be made. This has already been covered in connection
with the objection to substitution of seniority according to date of employment.
It has also been agreed, if sections 6.02 and 6 03 be found to be invalid, that under
the previously existing seniority provisions and under the existing contract minus
the superseniority provisions, Pritchard would have received employment which was
denied to him. Here again it is the Company's position in this respect that the previ-
ously existing seniority provisions and the existing contract minus the superseniority
provisions are not applicable in finding any remedy.
It is further the Company's position that the right of the Company to make certain
temporary assignments under section 6.13 of the contract applies to Thompson's
case, and that the job which he claims could have been given to another. As for
Whetstine, the Company's position is that he would not necessarily have received the
specific shift assignment which he claims. The Company does not attempt by proof
in either case to support this argument of possibility contrary to the application of
seniority according to date of employment.
It was agreed that we need not in this proceeding pinpoint the jobs which Thomp-
son and Whetstine might have been given since the amounts involved would be
small and the far more important issue is superseniority and whether they were
entitled to and would have received another job as claimed. There is agreement
that, if finding of discrimination be found and a remedy be declared as to Pritchard,
we can include Thompson and Whetstme, reserving the right to the Respondent to
explore and determine in compliance proceedings the loss actually suffered and the
amount thereof.
I find that, but for the superseniority provisions, and in the absence of any show-
ing or basis for finding that other assignments could and would lawfully have been
made, Pritchard, Thompson, and Whetstine would have received the assignments
described and alleged in the complaint.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON LABOR
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by enforcing, giving effect to, and applying
strike superseniority provisions of its contract with the Union, and by refusing to
offer the job of fiber plant operator to Pritchard, refusing to offer a temporary
driving job at a higher rate of pay to Thompson, and transferring Whetstme to a
rotating shift, discriminated against its employees generally and against Pritchard,
Thompson, and Whetstine specifically, in respect to their hire and tenure of employ-
ment, and interferred with, restrained, and coerced them, in violation of Section
8(a) (3) and (1) of the Act. I shall therefore recommend that the Company cease
and desist therefrom and from infringing in any other manner upon the rights
guaranteed in Section 7 of the Act. I shall furthei recommend that the Company
immediately offer to Pritchard, Thompson, and Whetstine employment which they
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would now have but for the application of the superseniority provisions, without
prejudice to their and other employees' seniority according to date of employment,
and other rights and privileges; and make them whole for any loss sustained by
reason of the discrimination against them, with interest at 6 percent, computation to
be made in the customary manner.18 I shall further recommend that the Board
order the Company to preserve and make available to the Board, upon request,
payroll and other records to facilitate the checking of the amount of backpay due.
As pointed out in Lundy,19 the remedy should properly reflect the background or
prelimitations period. While execution and maintenance of the agreement have not
been found violative, the Company will be directed to cease and desist from enforc-
ing or giving effect to the superseniority provisions of its agreement with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Chemical Workers Union, Local 427, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By enforcing, giving effect to, and applying strike superseniority provisions of
its agreement with the Union, and by otherwise discriminating in regard to the hire,
tenure, and conditions of employment of Pritchard, Thompson, and Whetstine,
thereby discouraging membership in a labor organization and interfering with,
restraining, and coercing employees in the rights guaranteed in Section 7 of the Act,
the Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
19 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.
N.L.R.B., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing
& Heating Co., 138 NLRB 716.
10 Footnote 16, supra, 1233-1234.
Transmarine Navigation Corporation and Its Subsidiary , Inter-
national Terminals , Inc. and American Federation of Guards,
Local #1. Case No. 21-CA-5766. May 28, 1965
DECISION AND ORDER
On November 17, 1964, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Brown and Jenkins].
152 NLRB No. 107.