Caterpillar Tractor Co.

National Labor Relations Board - Board Decisions

Jul 10, 1980

250 N.L.R.B. 527 (N.L.R.B. 1980)

CATKRPI'IILAR IRACTOR CO.
Caterpillar Tractor Co. and Local 806, Allied Indus-
trial Workers of America, AFL-CIO; Michael
D. Johnson; Paul E. Wellna; Michael D. Per-
kins. Cases 30-CA-4715, 30-CA-4758, 30-
CA-4758-2, and 30-CA-4758-3
July 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On February 22, 1980, Administrative Law
Judge Robert M. Schwarzbart issued the attached
Decision in this proceeding. Thereafter, counsel for
the General Counsel, Charging Party Local 806,
and Respondent filed exceptions and supporting
briefs.
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, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
I Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Although we have found no basis for reversing the Administrative
Law Judge's discrediting of Manufacturing Manager Washam's testimony
that Respondent had previously imposed moratoriums on voluntary
downgrading, we note that the Administrative Law Judge overstated
Washam's testimony to the extent that he indicated that Washam had tes-
tified he had twice suspended all granting of transfers downward. The
testimony of Washam. as well as that of Employee Relations Manager
Spitzer, specifically indicates no more than that for limited periods of
time total moratoriums were imposed only on such transfers out of par-
ticular job classifications. The moratorium imposed by Respondent in
April 1978,. which is the subject of the instant proceeding, prevented em-
ployees in over 70 job classifications from obtaining such transfers, in-
cluding some 20 employees in at least 10 job classifications whose trans-
fer requests were passed over when a janitor was hired on May 15. 1978.
Accordingly, even absent such credibility resolutions. the evidence does
not support Respondent's claim that its moratorium was grounded on
past practice.
While the Administrative Law Judge's detailed findings faithfully re-
flect the evidence contained in the record herein in all essential respects,
Respondent's exceptions correctly specify certain inaccuracies. all of a
minor nature The record indicates that Respondent did not always notify
the Union when downgrade transfer requests were passed over. but that
such explanations were only occasionally forthcoming. Further. Respond-
ent's expressed willingness to present the instant dispute regarding down-
grade requests to the same arbitrator who had heard the McDonnell case
was only for the purpose of clarifying the scope of that arbitration
award.
We agree with the Administrative Law Judge
that Respondent's unilateral modification of the
transfer request system, indefinitely suspending
downgrade transfers for which approximately 280
requests had been made, constituted a serious
unfair labor practice, and that the resulting strike
was protected concerted activity under the Board's
ruling in The Dow Chemical Company, 244 NLRB
No. 129 (1979).3 Having found the strike activity
to be protected under the Act, we further adopt
the Administrative Law Judge's conclusion that
Respondent unlawfully disciplined certain partici-
pants in this strike. In so doing, however, we find
it unnecessary to speculate as to whether all such
discipline and the reasons therefor would have
been unlawful had the strike been unprotected.
Because we conclude that Respondent's unilater-
al restriction on downgrade transfers was a serious
unfair labor practice, and that Respondent unlaw-
fully disciplined employees who struck in protest
of this unilateral change, we further conclude that
Respondent should be ordered to cease and desist
from violating the National Labor Relations Act
"in any other manner." See Hickmort Foods. Inc.,
242 NLRB 1357 (1979).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Caterpillar Tractor Co., Milwaukee, Wisconsin, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified.
1. Substitute "In any other manner" for "In any
like or related manner" in paragraph l(d) of the
Administrative Law Judge's recommended Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER PENELLO, dissenting:
I would defer to the parties' grievance and arbi-
tration procedures for the reasons stated in Roy
Robinson, Inc., d/b/a Roy Robinson Chevrolet, 228
NLRB 828 (1977), and former Member Walther's
and my dissenting opinion in General American
Transportation Corporation, 228 NLRB 808 (1977).
:' For reasons separately stated by them in that Decision. Chairman
Fanning and Member Jenkins would find the strike to he protected actit-
ily regardless of the seriousness of Respotlldentls unlawful conduct
250 NLRB No. 89
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NoTICF To EMPI OYFES
POSTED BY ORDER OF THE
NATIONAl LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize or bar-
gain collectively, upon request, with Local
806, Allied Industrial Workers of America,
AFL-CIO, as the exclusive representative of
the employees in the appropriate bargaining
unit described below, by unilaterally announc-
ing and putting into effect changes in the
transfer request system which restrict employ-
ees in obtaining voluntary demotions. The ap-
propriate unit is:
All production and maintenance employees,
including apprentices and probationary em-
ployees, employed by Caterpillar Tractor
Co., at its Milwaukee, Wisconsin, location,
excluding executive, office, and clerical em-
ployees, engineering department employees,
guards and supervisors as defined in the Act.
WE WILL NOT discharge, suspend, or other-
wise discriminate against employees because of
their participation in a lawful strike.
WE WILL NOT discharge, fail to reinstate, or
otherwise discriminate against employees be-
cause of their status as officials of Local 806,
Allied Industrial Workers of America, AFL-
CIO, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section
7 of the National Labor Relations Act.
WE WILL recognize and, upon request, bar-
gain collectively with the above-named Union,
as the exclusive representative of all employees
in the appropriate unit described above, with
regard to rates of pay, wages hours of employ-
ment, and other terms and conditions of em-
ployment, including the right to use the trans-
fer request system as a means of obtaining vol-
untary demotion, and, if an understanding is
reached, embody such understanding in a
signed agreement.
WE WILL offer Steve Tomkiewicz, Paul
Wellna, and Michael Perkins immediate and
full reinstatement to their former positions or,
if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority and other rights and privileges,
and WE WIL. make whole, with interest, each
of the above-named individuals and Michael
Johnson, Wayne Moses, Paul Dobron, and
Terry Maleshafske for any loss of earnings
they may have suffered by reason of our un-
lawful discrimination against them.
WE WILL expunge from our personnel and
other relevant records all references to the dis-
ciplinary actions taken against the above-
named individuals, and WE WILL NOT use such
record entries as grounds for future disciplin-
ary action against these employees.
CATERPILLAR TRACTOR CO.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: These consolidated cases were heard on January
29, 30, 31, February 1, 2, and March 6, 7, and 8, 1979, in
Milwaukee, Wisconsin, pursuant to charges and amended
charges,' and a consolidated complaint issued August 24,
1978.2 The complaint alleges that Caterpillar Tractor
Co., herein the Respondent, violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amend-
ed, herein the Act. The Respondent in its answer denied
the commission of unfair labor practices.
Issues
1. Whether the Respondent violated Section 8(a)(5)
and (I) of the Act by unilaterally refusing to continue to
honor employee voluntary transfer requests to lower
rated job classifications, or whether such transfer request
procedure had not previously been established as a term
and condition of employment.
2. Whether the above-described alleged unilateral
change caused an unfair labor practices strike.
3(a). Whether the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging employees Steve Tom-
kiewicz, Paul Wellna, and Michael Perkins, and by sus-
pending employees Michael Johnson, Wayne Moses,
Frank Dobron, and Terrence Maleshafske because of
their participation in the above-referred strike, or wheth-
er the strike was unprotected.
(b). Whether the Respondent violated Section 8(a)(3)
and (1) of the Act by terminating Tomkiewicz and
Wellna because they were officers of the Union at the
time of the strike.
I The original and amended charges in Case 30-CA-4715 were filed
on May 30 and July 10. 1978, respectively. The charges in Cases 30-CA-
4758, 30-CA-4758-2, and 30-CA-4758-3. respectively, were filed on
June 21 and 27, 1978.
z All dates hereinafter are within 1978 unless otherwise specified.
528
CATERPILLAR TRACTOR CO.
4. Whether this matter should be deferred to arbitra-
tion under Collyer Insulated Wire, A Gulf and Western
Systems Co. 3
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Briefs filed by the
General Counsel, the Union, and the Rzspondent have
been carefully considered.
Upon the entire record of the case and my observation
of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a California corporation, is engaged
in the manufacture of heavy machinery and equipment at
various locations throughout the United States, including
its Milwaukee, Wisconsin, facility. During calendar year
1977, a representative period, the Respondent sold and
shipped goods valued in excess of $50,000 directly from
its Milwaukee location to points located outside the State
of Wisconsin. From the foregoing conceded facts, I find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The answer admits and I find that Local 806, Allied
Industrial Workers of America, AFL-CIO, herein the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
I. Background
The Respondent, with various facilities in the United
States, operates a plant in Milwaukee, Wisconsin, where
it manufactures tractor frames, excavating buckets, lift
arms, pipe layers, levers, and miscellaneous items used in
the manufacture and operation of tractors. The complet-
ed parts and items are thereafter shipped to the Respond-
ent's other plants for use in assembling tractors or as
tractor accessories. The Respondent's Milwaukee plant
has an employee complement of approximately 650 pro-
duction and maintenance employees who have been rep-
resented by the Union since the early 1960's.
The current collective-bargaining agreement, 4 effec-
tive June 1, 1977, until June 1, 1980, governed the bar-
gaining relationship during the events considered herein.
The contract provided for a grievance procedure culmi-
' 192 NLRR 837 (1971)
The bargaining unit as described in the current collective-bargaining
agreement, includes:
All production and maintenance employees, including apprentices
and probationary employees, employed by the Respondent at its Mil-
waukee. Wisconsin, plant, but excluding executive. office and clerical
employees, engineering department employees, and all supervisory
employees (within the meaning of the Actl
nating in binding arbitration. Article 2.10 of this agree-
ment is as follows:
The Company agrees that there will be no "lock-
out" of its employees, and the Union agrees that
there will be no strike or stoppage of work until all
peaceable means, as enumerated in the grievance
procedure of this agreement, of reaching a mutually
satisfactory decision on any and all problems have
been tried. In no event shall employees engage in a
slowdown or sitdown.
2. The operation of the transfer request system
The General Counsel and Union contend that the Re-
spondent, starting in late April, unilaterally ended an es-
tablished procedure whereby employees, using transfer
requests maintained in a transfer pool, could seek and
obtain voluntary job reclassifications downward to less
highly paid and less demanding positions. These parties
assert that the right of employees to use transfer requests
for such purpose had become an established term and
condition of employment, that the Respondent's unilater-
al change in this regard had precipitated an unfair labor
practice strike on May 21-22, and that certain employees
were unlawfully discharged or suspended because of
their participation in the strike.
The Respondent, while agreeing that the transfer re-
quest pool must be used in selecting employees for pro-
motion to higher labor grades, argues that the reverse is
not equally true. While conceding that some employees
both before and since April were permitted to voluntar-
ily obtain lower rated jobs through the transfer pool,"
the Respondent asserts that the use of the pool for volun-
tary downgrading had never become an agreed term and
condition of employment, but, rather, was a privilege
which the Respondent afforded to employees consistent
with business needs as circumstances warranted-reserv-
ing for itself the right to suspend, delay, or refuse to
grant such voluntary downgrades.
Employees have sought to transfer to lesser paid posi-
tions on their own initiative for a variety of reasons.
Those with seniority of age and service have attempted
to prolong their working years by going from incentive
to less pressured daywork and in seeking more healthful,
less demanding duties.6 Employees also sought down-
grades to further their career development7 and to earn
more money in less demanding work.8
s All job classifications within the unit and their labor grades codes are
listed in appendix A to the contract The agreement refers to labor
grades "A" through "M," with "A" being the lowest grade
6 Many of the Respondent's employees are assigned to various welding
classifications Employee Michael Johnson explained that he did not v:ant
to climax his career as a welder after 15 years of such work with the
Respondent and elsewhere, as he had sustained various burns. including
injury to his eyes from the arc light. and suffered from constant exposure
to welding smoke Others as elevated welders who work on raised plat-
forms did not wish to continue to work above the ground
Employees who had reached plateaus in their current assignments. by
transferring into lesser paid jobs in other classifications. could put them-
selves in line for career promotion progressions in other specialties which
might ultimately bring positions higher than those originally held
I Certain lower graded positions carried more overtime potential ihan
did related positions in higher labor grades
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The transfer request system is set forth in article 8.2 of
the contract as follows:
(8.2) JOB OPENINGS
The Company agrees to fill higher rated jobs
whenever possible by promoting its own employees.
In making promotions seniority and qualifications
for the job will be given consideration. When job
qualifications are approximately equal the employee
with greater seniority shall be given preference.
The Company shall permanently post on the bul-
letin board a list of all active job classifications and
the procedures regulating operation of the Transfer
Request System. New job classifications will be
added to the posted list at least two weeks before
the job is permanently filled.
When an employee desires a different job classifi-
cation, he may make his wishes known by making
application therefore and specifying the job classifi-
cation and acceptable shift(s) on a Company
"Transfer Request" form supplied by his Foreman.
When submitted a Transfer Request application will
be time and date stamped and will be promptly
processed and an employee will be informed
through his Foreman if a Transfer Request is being
favorably considered, or if a Transfer Request is re-
jected, the employee will be given the reason for
such rejection. A Transfer Request shall cease to
have effect upon the earlier of (1) the date of the
rejection of the Transfer Request, (2) the expiration
of one year from the date of filing the Transfer Re-
quest, or (3) the date an applicant rejects an offer to
a requested job and shift.
When there is a job opening to be filled by pro-
moting a qualified employee on the same shift, or
by bringing to that shift a qualified employee al-
ready in the job classification on a different shift,
first opportunity will be given to the employee al-
ready in the classification on a different shift.
An employee being offered another job classifica-
tion will be told the nature of the work, classifica-
tion, applicable wage rates, location and shift.
A job offer acceptance by a transferee will estab-
lish a cutoff time and date. Whenever a job offer is
accepted or rejected by an employee, the time and
date of such action will be immediately recorded on
an appropriate form. Transfer Requests submitted
after such cut-off time and date will be processed
and considered for future openings.
An employee transferred to another job classifi-
cation under the provisions of Section 8.2, who
during the provisional transfer period voluntarily
returns to the classification he held immediately
prior to being so transferred, may not again make
application for that same job classification for a
period of six months from the effective date of such
voluntary removal.
The Company will physically fill jobs by the
Transfer Request procedure by the second Monday
after acceptance (cut-off date) unless training con-
siderations or needs of the business based on good
cause require deviations. The Chairman of the Bar-
gaining Committee or his designate will be notified
of such deviations and the reason therefor.
The most direct contractual references to voluntary
downgrading are in article 6.6, which relates to compen-
sation of transferred employees. Article 6.6, in relevant
part, provides:9
An employee transferred to a lower labor grade
at his own request will receive a rate which is not
lower than the second step rate of the labor grade
to which he is assigned.
An employee transferred to a job classification in
a higher labor grade shall maintain his current rate,
if that rate falls within the rate range for the higher
labor grade. If his current rate is lower than the
minimum rate of the higher labor grade, he shall be
brought to the minimum rate of the higher labor
grade effective the date of the transfer. Not later
than ten weeks after the date of transfer he shall be
brought to the second step rate of the labor grade if
this results in an increase in his rate.
Walter Kyle Spitzer, employee relations manager for
the Respondent's Milwaukee plant. 'O described the trans-
fer pool as a cardboard box in which employee transfer
requests for each desired classification are kept. Transfer
requests are special forms submitted to the Respondent
by interested employees, which show the employee's
name, present department, job, job code as set forth in
contract appendix A, shift, the position desired, the code
and department of the desired position, reasons for re-
questing transfer and the employee's statement of his
qualifications for the desired job. The form also has
space for intermediate supervisory comments, the trans-
fer request disposition, and, of course, the relevant dates.
Under existing procedures, the employee gives the
completed transfer request to his supervisor. It then is re-
ferred to the department to where transfer is sought and
the employee's qualifications for the transfer are evaluat-
ed by the superintendent or general foreman. If marked
acceptable, the transfer request is placed in the pool for
the desired classification. If not so marked, the transfer
request is returned to the employee with a note. Employ-
ees may grieve rejection of their transfer requests and
some workers successfully have used the grievance pro-
cedure to have their transfer requests placed in the pool.
As provided in article 8.2 of the contract, seniority
and qualifications are the factors considered in selecting
employees from the pool for promotion. Where qualifica-
tions of employees within the pool are approximately
equal, selection is made for promotion on the basis of se-
Other clauses of the contract deal with involuntary downgrades or
forced demotions. Art 34 sets fiorth the procedures used for downgrad-
ing during reductions in force, while art. 3 5 makes provision for employ-
ees who are unable to perform their assigned jobs satisfactorily by reason
of lack of skill. knowledge. or health defects.
'i Spitzer has been the Respondent's senior resident labor relations of-
ficial at the Milwaukee plant since August I, 1977 The local managers
for labor relations, safety. employment and training report to him. Spitzer
also is assisted by Russell Langford, labor relations representative
530
CATERPILLAR TRACTOR CO.
niority. However, voluntary downgrading is based only
on seniority.
The same transfer request process is used by any em-
ployee who applies for any of the bargaining unit jobs
listed in the contract, whether the transfer sought is to a
higher lateral or lower labor grade. All transfer requests
for each position, whether for promotion or downgrade,
are kept in a common pool.
Transfer requests continue in effect until the date they
are rejected or, if accepted and placed in the pool, they
remain effective until the expiration of 1 year from the
date of filing' or the date an employee rejects the offer
of a requested job. 12
Spitzer testified that an exception to the use of the
pool could arise when an apprentice, upon completing
his apprenticeship program, is used to fill an apprentice
vacancy. An exception also exists where an employee
leaves the bargaining unit for a nonbargaining unit job-
i.e., to take a first-line supervisory position-which does
not work out. In such instances, the employee is then re-
turned to his former job within the bargaining unit or to
a vacant unit position without resort to the transfer pool.
Although, as noted, the Respondent now agrees with
the Union that the transfer pool is to be used in selecting
employees for promotion, the reverse of the issue under
consideration here, the Respondent's current position in
this regard stems from a 1975 arbitration award constru-
ing article 8.2 of the contract, referred to by the parties
as the Archie McDonnell award. 3 As the General
Counsel and Union strongly rely upon the McDonnell
award which was often referred to by the Union in dis-
cussing with management use of the pool to achieve vol-
untary downgrading, it is germane to consider that pro-
ceeding.
McDonnell, employed by the Respondent as a utility
man, had filed a grievance concerning the Respondent's
filling of a maintenance man position in a labor grade
higher than McDonnell's by an individual not previously
employed by the Respondent. At that time, McDonnell
had a pending transfer request in the pool for the job in
question. The arbitrator rejected the Respondent's argu-
ment that while, based on past practice,' 4 it must consid-
er applicants for job transfer in filling vacancies, it is not
limited to the pool. Rather, the arbitrator found the lan-
guage of article 8.2 of the contract that the "Company
agrees to fill higher rated jobs whenever possible by pro-
moting its own employees," in the context of the lan-
guage in that article referring to the use of seniority,
qualifications, and the transfer pool to be sufficiently un-
ambiguous so as to preclude the Respondent from filling
vacancies from outside the Company when the transfer
pool contained requests from incumbent employees seek-
"' Ideally, employees are notified by the Respondent when their trans-
fer requests are about to expire, so that they might be renewed before
being purged from the pool.
12 Employees who reject job offers may later put in other transfer re-
quests for the same position, and employees may simultaneously have
transfer requests on file for more than one position
'3 Although the McDonnell issue rose under an earlier collective-bar-
gaining agreement, the contract language considered was the same.
4 The Respondent sought to document the historical situation during
the arbitration proceeding by presenting grievances previously settled fa-
vorably to itself.
ing promotion into such positions. In so concluding, the
arbitrator noted the agreement of the parties that the Re-
spondent's acceptance of a transfer request for the pool
"indicates that the employee possesses the basic mini-
mum qualifications for the position requested. Moreover,
promotions to higher-rated jobs are handled only
through the transfer request system spelled out in article
8.2 .... " Contrary to the Respondent, the arbitrator
noted, inter alia, that the record of past practice was not
sufficient to modify the clear terms of the contract, that
grievances, ambiguously resolved, indicated a continuing
union objection to the Company's asserted practice
rather than acquiescence, and concluded that new hires
could be employed only when no transfer requests are
on file. As noted, the Archie McDonnell award involved
only a transfer request to a higher labor grade and no
reference was made to the use of tranfer requests for
purposes of voluntary downgrading.
3. The Respondent's unilateral change of the
transfer request system effecting voluntary
demotions
Dennis Rimert' 5 testified that on April 27 Employee
Relations Manager Spitzer called him into his office and
announced that the Respondent was going to hire a jani-
tor from the street rather than go to the existing transfer
pool. Spitzer told Rimert that from that day forward
there would be no voluntary downgrading as in the past.
Rimert replied that this would create a lot of problems;
there already were problems over which the membership
was upset. Rimert pointed out that the parties had arbi-
trated the Archie McDonnell award about hiring from
the street once before and for years the employees
always had been able to voluntarily downgrade. Spitzer
retorted that the Company would not allow voluntary
downgrading, except possibly for medical reasons, that it
was going to hire a janitor from the street, and that the
Union should do what it had to do. '6
A few days later, at a meeting of the union bargaining
committee, Rimert repeated what he had been told by
Spitzer. Committee members present were Tom Lee,
Steve Tomkiewicz, Mike Coombs, and Frank Green, all
of whom were employed by Respondent. The committee
reacted angrily to Rimert's account.
On May 9, Rimert and other bargaining committee
members attended a third- step grievance meeting with
company officials. Rimert related that at the start of the
meeting, Spitzer told the committee that the Respondent
was hiring a janitor from the street instead of going to
the transfer pool. Spitzer announced that there was a
new policy of not granting voluntary downgrades. He
made management aware of this and was now informing
the bargaining committee, as this was going to be the
i Rimert, chairman of the bargaining committee at the Caterpillar
Milwaukee plant unit and vice president of the Union. has held a variety
of union offices for a number of years He is employed by Respondent as
a welder assembler and has been with the Respondent for more than 12-
1/2 years.
s6 Rimert testifed that before April 27 the Respondent had placed no
restrictions on an employee's ability to voluntarily transfer to jobs in
lower grades Employees wvho had the seniority would receise the re-
quested downgrading
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's new policy. Rimert repeated that the mem-
bership was going to be upset. There were enough exist-
ing problems without this and that the morale of the em-
ployees was already bad. He again reminded Spitzer that
the Union had won the Archie McDonnell award relat-
ing to hiring off the street when there was existing trans-
fer pool, and that the Union had years of past practice to
support its position.
On May 15, the Respondent hired Leonard Wilson
from outside its organization to fill a vacancy for janitor,
the lowest grade covered by the collective-bargaining
agreement. At the time Wilson was hired, there were 19
transfer requests on file for the janitor's position on the
various work shifts.
On May 16, committee Member Tomkiewicz, filed the
following policy grievance:' 7
The Union contends the Company is in violation
of Art. 8 Section (8.2) and, or any section of the
contract which may apply. The co. is not recogniz-
ing any the employees transfer to a lower labor
grade by refusing all employees the right to down-
grade themselves through the transfer request
system.
The grievance requested that employees have the right
to downgrade as in the past.
Howard K. Washam' 8 testified that in early April,
faced with an unprecedented increase in production and
hiring,'9 the highest in the plant's history, he informed
Spitzer, whose responsibilities included hiring, that the
Company was experiencing severe work problems, par-
ticularly in recruiting and keeping skilled personnel.
Washam told Spitzer that he intended to exercise more
control over the downward movement of employees as
voluntary demotions caused the Company to lose the
services of trained employees. As new employees were
moved into place, it sometimes was necessary to use ex-
perienced people to train them, and also, when skilled
personnel downgraded themselves, severe problems arise
in meeting production requirements. Spitzer replied that
he understood the problem and would like to think and
consult about the matter. He promised to report back.
Spitzer related that earlier, in February, he had been
asked by Plant Manager Flaherty and Donald Clancy,
manager of the material controls department, whether
the contract gave an employee the right to voluntarily
downgrade himself. These officials were experiencing
what they considered to be an unusual number of trans-
fers from higher to lower labor grades through use of
the pool. Flaherty, too, asked Spitzer to look into this
situation.
Spitzer, as part of his investigation, studied the con-
tract and checked the Respondent's arbitration index to
determine whether there had been any relevant arbitra-
tions under section 8.2 of the contract, which established
'1 Policy grievances are filed by the Union on behalf of the member-
ship.
Hi Washam, manufacturing manager at the Respondent's Milwaukee
plant for the preceding 2 years, was responsible for all plant operations
19 Production and hiring schedules are established by the Respondent's
general offices in Peoria. Illinois.
the transfer pool. 20 Spitzer also consulted with Clancy
and the former manufacturing manager, Warren Peplow,
two management officials with 25 to 27 years, respective-
ly, at the Milwaukee plant. Both Clancy and Peplow
told Spitzer that they knew of past situations where vol-
untary demotions had not been permitted because of the
Respondent's business needs.
In mid-April, after conducting his review, Spitzer re-
ported to Washam and Flaherty that based on his above-
described study employees had no contractual right to
voluntary demotion. Spitzer recommended that to meet
its increased needs for production and personnel the Re-
spondent proceed on a case-by-case basis and allow vol-
untary demotions to occur only when there was good
reason.
Spitzer testified that, thereafter, on April 27, he invited
Rimert to his office. Spitzer told Rimert that, as a cour-
tesy, he felt it necessary to tell him what the Respondent
was experiencing in the plant at that particular time. The
Respondent was trying to increase its employment to an
all-time high and that this was being caused by a record
high in the plant production schedules. The Respondent
wanted more and more product. Because of this econom-
ic upturn, employees in the transfer pool who were seek-
ing to go from higher to lower labor grades would have
such transfers approved on an exception only basis,
rather than to the degree that had been allowed during
the past 6 to 9 months.2 1 Spitzer told Rimert that he did
not think that there was anyone in the plant smart
enough to realize when and where there were going to
be exceptions. He could not think of any at that time, but
knew, based upon his experience, that there would be ex-
ceptions coming up. If the Respondent should experience
an economic downturn in the next 6 to 9 months, then it
would be in a completely different situation and would
have to reevaluate its employment practices and produc-
tion schedules.
Spitzer explained to Rimert that during the past 2
years, the Company, and particularly the Milwaukee
plant, had been on a downward slide. In that time, the
Respondent had been interested in trying to honor the
transfer requests of its employees. However, now that
the Company was on an economic upswing, it did not
make sense for the Company to continually have to ex-
perience a brain drain. Spitzer pointed out that the possi-
bility of movement of skilled employees from higher to
lower classifications increased with the great number of
new jobs that were being created. The Respondent was
taking this action as it could not fill its higher labor
grade positions fast enough and plant proficiency could
not be maintained when too many employees tried to go
from higher to lower labor grades. Rimert replied that
he felt that the bargaining unit would be upset by the
fact that the Respondent was not going to grant as many
transfer requests as in the past and stated his belief that
many would file grievances. He thanked Spitzer for ex-
plaining the matter to him and expressed a certainty that
"I The Archie McDonnell award was the only germane arbitration
21 Although Spitzer testified that before his April 27 conversation with
Rimert. employee requests for downgrades had been honored on a case-
by-case basis. he did not know of any that had been denied.
532
CATFRPILL.AR TRACO()R CO.
the Respondent would hear more about this matter in the
future. 22
Also on April 27, both before and after his meeting
with Rimert, Spitzer held meetings with the plant super-
visors to let them know of what Rimert was being told
in this matter. Accordingly, Spitzer met with the super-
visors of all three shifts, holding two supervisory meet-
ings per shift. At these sessions, Spitzer told the supervi-
sors of the projected need to reach all-time new highs in
employment and production. To do this, the Company
would need to tighten up on voluntary employee demo-
tions. Supervisors who knew of good reasons for volun-
tary demotions should certainly bring them to Spitzer's
attention for consideration. However, the Company was
finding it extremely difficult at that time to grant volun-
tary demotions to the same extent as before because they
were causing a tremendous "brain drain" from the higher
to the lower classifications, as the Respondent then was
creating more jobs than in many years. The supervisors
were told that voluntary demotions would be approved
by Spitzer's office. 2 3
Spitzer informed the supervisors that the Respondent
was going to abide by the Archie McDonnell award and
would continue to grant promotions from lower to
higher labor grades to employees in the transfer pool.
The first step would continue to be to try to promote the
Company's own people.
Spitzer also related that on May 9, before the start of a
third-step grievance meeting, he reported to the full bar-
gaining committee what he had told Rimert on April 27;
namely, that the Company would continue to abide by
the Archie McDonnell award, requiring use of the pool
in making promotions. However, Spitzer asserted con-
trary to the Union, that use of the transfer pool solely
for movement from lower to higher labor grades, consti-
tuted complete compliance with the contract and the
award. Spitzer told the union committee that the next
low-level vacancy would probably occur at the janitor's
level, and the Company would fill that position from
outside. However, this would happen only after the Re-
spondent had used the transfer request procedure to fill
all higher vacancies by upgrading. After completion of
the movements upward, an opening most likely would
develop at the bottom, presumably for janitor, the lowest
classified position covered by the contract.
Spitzer emphasized that this control on downward
movement was not a "never-never" situation, but result-
ed from the Respondent's production needs at that time.
Responding to the Union's contention that there was a
contract violation and that the Company was not abiding
by the Archie McDonnell award, Spitzer replied that
that award related to promotions and had nothing to do
with movement downward. When asked what he meant
by a case-by-case study and when the Company might
grant transfer downward, Spitzer answered that family
a" To the extent that Spitzer's account of the April 27 meeting differs
from Rimert, I credit Spitzer as it is more detailed and reflects a superior
recollection There is no basic conflict in the two versions however
12 The record reveals that the requirement that Spitzer approve volun-
tary downgradings represented a change in the way the transfer pool had
been administered in that, before April 27., Spitzer had not been directly
involved in this process, which, in practice, had been run by the general
foremen
circumstances and health considerations could be excep-
tional factors used in evaluating each employee for vol-
untary demotion. The Union committee then asked
Spitzer to inform them if anyone was hired from the
street. 2 4
On Monday, May 15, the Respondent notified the
Union that Leonard Wilson had been hired from the out-
side as janitor.25
Spitzer testified that extenuating circumstances where-
by, after April 27, the Respondent might grant voluntary
demotions could relate to health and family problems or
to the Respondent's critical need to fill a vacancy which
could quickly be done from the transfer pool. Another
instance could arise where it might be deemed necessary
to redistribute the work force as when too many employ-
ees had been accumulated in a given classification and
shift after completion of the project for which they had
been so assigned. Such situations could be adjusted by
using the pool to downgrade volunteers from these over-
crowded areas.
After notifying the Union that the Respondent had se-
lected Wilson to fill the one vacancy for janitor, Spitzer
gave the Union, at its request, a list of employees in the
transfer pool and asked the Union to designate which
employees on the list the Union believed should have ex-
ceptions. As the Union refused to respond, Spitzer con-
tends that he knows of no employee on that list who felt
that he had a special circumstance warranting voluntary
downgradings. 2 6
When asked what would have happened to Wilson
had the Company thereafter decided to grant an excep-
tion and move an employee in the transfer pool into the
janitor's job, Spitzer related that Wilson would not have
been terminated, but would have been moved to the va-
cancy left by the man who had been downgraded. Had
additional training been required to enable Wilson to fill
such a position, it would have been provided by the Re-
spondent. As another alternative, the Respondent would
have kept Wilson in some different position on an over-
staff basis until there was an opening where Wilson
could be placed without training.
Spitzer iterated, however, that the only change in the
Company's past practice as of April 27 was that on that
:4 The above account is a synthesis of the testimony of Washam and
Spitzer Langford, who also testified as to the events of that meeting, was
newly appointed as labor relations representative and did not have as de-
tailed a recollection of what had transpired Spitzer's testimony as to the
May 9 meeting although more detailed, does not differ materially from
that of Rimerr.
2b Before Wilson's job was filled, the initial vacancy that had opened
was for that of power trucker The Respondent filled this job by promot-
ing an employee who had a transfer request on file in the pool The
vacant position left by the promoted employee was also filled by promo-
tion from the pool, as were resulting vacancies in the chain of movement
thus created After all had been moved up in sequence, a vacancy was
opened at the bottom in the janitor's position, which was given to
Wilson.
26 When Spitzer asked the Union if any of its members had a special
situation which would have qualified as an exception to its policy con-
cerning voluntary downgrades. Wilson had already been hired Spitzer
concedes that although there was space on the transfer request form for
employees to insert their reasons for seeking transfer, no company repre-
sentative had reviewed the requests in the pool lo see if any such com-
ments warranted fa'vorable consideration
533
DC[)ISI()NS OF NATIONA I.AH)BOR RIELATIONS H()OARD
date he told Rimert that, for reasons stated, the Respond-
ent would not be granting as many exceptions in consid-
ering voluntary downgrades as in the past, a matter tra-
ditionally within the Company's discretion. He denied
having attempted to add or delete preexisting exceptions,
observing merely that because of the needs of the time,
employees who wanted to voluntarily move to a lower
labor grade would be examined more carefully.
4. The strike of May 21-22
The Union, by a flyer distributed on May 18, sum-
moned employees to attend a special union membership
meeting at Bricklayers Hall, Milwaukee, on Sunday, May
21, at 10 a.m.
Approximately 156 employees attended the May 21
meeting, which was chaired by Rimert.2 7 Although the
flyer which announced the meeting listed six issues to be
considered, it was the first item, job transfers in the con-
text of Tomkiewicz' grievance, that was the principal
topic of discussion. Rimert told the membership of the
Company's new policy on job transfers, that the Re-
spondent had hired someone from the street fo fill the
janitor's job and that the Union had filed a policy griev-
ance concerning this matter, which it planned to pursue.
Those present angrily responded, asking variously, what
good was done in filing the grievance. There were more
than 200 open grievances at the time and it took 6 to 10
months to get an answer on each. According to Rimert,
the membership became boisterous, telling the committee
that the Company could not be dealt with and that the
matter should not be arbitrated again. The membership
informed the committee that they were going to strike.
When the committee protested that the contract prohibit-
ed strikes and advised that the matter be pursued
through the Tomkiewicz grievance, the membership
loudly voiced its support of a strike.28
The strike began before the third shift on May 21,
which starts work at 10:48 p.m. Rimert, arriving at the
plant about 11 p.m., saw about 500 to 600 people walk-
ing up and down in front of the plant for a distance of
two to three blocks. Dennis Latus, the International
Union's regional representative 29 also arrived at the
plant around 11:30 p.m. having been alerted to the possi-
bility of a strike. Latus, with Union Official Rimert, Lee,
Tomkiewicz, and Coombs, met inside the plant with
Spitzer, Plant Manager Flaherty and Labor Relations
Representative Langford. When Latus asked Rimert to
explain the situation, Rimert declared that at the union
meeting that day, the membership had become very
upset on learning of the problems that the Union had
been having with management concerning the Respond-
ent's new transfer policy eliminating voluntary down-
grades. A grievance had been filed but had not been sat-
2 Rimert related that. normally. such meetings are attended by 20 to
30 individuals.
z" Earlier. on May 19, Rimert had reassured labor relations representa-
tive Langford, who had asked about the possibility of a wildcat strike.
that he. too. had heard rumors but that a strike was not going to happen.
z2 Latus., employed by the Respondent from January 1967 to Novem-
ber 1975, had served as bargaining committee chairman for about 3 years.
When the events herein occurred. Latus was the Union's professional
representative for the unit herein His duties included contract negotia.-
tions and the servicing of grievances
isfactory to the membership. Spitzer replied that if they
did not like what was going on, the employees should
file and pursue a grievance. That was the way it was
going to be.
Latus stated that the transfer issue was not the only
problem. It was probably the most important but there
were other matters. The Union had 200 grievances back-
logged in the third step of the grievance procedure and
the Respondent was taking the position that the Union
should take every case to arbitration, which was finan-
cially impossible. Spitzer repeated that the Respondent's
policy concerning downgrading was going to be its new
practice and if the Union did not like it, they should file
a grievance. Latus replied that there were many reasons
why men wished to be downgraded, explaining that em-
ployees burned themselves out on jobs and some needed
to be transferred for health reasons. In the past, employ-
ees never had to have reasons to be downgraded. Spitzer
responded that the Company was not going to have men
welding for 6 to 8 years and then lose all that training
when such employees decided to downgrade. When the
Company hires welders from the street, it is necessary to
train them for 5 to 6 weeks in welding school and then
afford additional training on the production line at great
expenditure of time and money. The Company could
more readily hire someone from the outside into one of
the lower classifications without involving this loss of
training and experience. Also, when employees complete
their probationary periods in lower classifications, the
Company could better be able to evaluate each and,
more effectively, could train them from there. Spitzer
continued that the men were engaged in an illegal strike
and that it was the committee's responsibility to get the
employees back to work. Latus replied that he knew it
was illegal, but the Union had not authorized it. Spitzer
reiterated that the strike was illegal, that the union repre-
sentatives had an obligation to get their people back to
work and that nothing was going to be discussed until
they did so.
The union representatives did go to the main door of
the plant, but were shouted down when they told the
employees to return to work. The employees declared
their intent to stay out until the voluntary downgrading
matter was favorably resolved.
During the morning of May 22, the company and
union representatives met twice again, and at or about 5
p.m. that day a membership meeting was held at a Mil-
waukee park. There the employees were told that the
Respondent would discuss outstanding issues in dispute
with the bargaining committee, but that the employee
would have to go back to work before such talks could
be held. Rimert and the members of the bargaining com-
mittee were at the plant that night and were able to get
the employees to return to work at the start of the 10:48
p.m. shift on May 22. This ended the strike. so
:"' The Respondent's witnesses essentially agreed with the accounts
given by Latu, and Rimert of the company-union discussions on May 21
and 22 during the strike.
534
(CAT ItRI I.R I A RAC'()R C()
5. The conlpan'y-union post-strike meetfigs of May
23 and 24
International Rcprcsentative Latus testified that on
May 23 the union bargaining committee, including
Rimert, had a lengthy mIeeting %with management repre-
sentatives Spitzer, I.angford, Flaherty, and Clancy.
Rimert began the meeting by raising the issue of the Re-
spondent having discontinued its procedure of going to
the transfer pool to fill job downgrades, observing that it
had been the past practice to go to the pool for that pur-
pose. Rimert observed that the Union never had had a
problem with the Company in this regard. When a prob-
lem, at one time, had arisen concerning the Respondent's
reluctance to go to the pool to fill an upgraded position,
it had been settled by the Archie McDonnell arbitration
award. Latus interjected that employees could work on
incentive only so long and had to have some way of es-
caping. This was mostly done through the transfer pro-
cedure, by employees voluntarily downgrading them-
selves to nonincentive classifications. As employees had
not been denied downgrades in the past, Latus could not
understand why the Respondent would be so unreason-
able as to insist on holding an employee in a welding
classification on incentive after 15 to 20 years of such
work.
Spitzer replied that the Company was continuing to
use the pool for upgrades but no longer was going to the
pool to fill downgraded positions. If it could, the Com-
pany was going to hire from the street to fill the lower
rated positions rather than transfer employees from
higher grades. When Latus asked if this meant that the
employees would be locked in their jobs if seeking
downgrade, Spitzer replied in the affirmative that the
Respondent was going to the pool to promote employ-
ees, but seniority would be ignored as to transfer re-
quests for downgrading.
The Tomkiewicz policy grievance was also discussed
at that meeting and the Union repeated that the contract,
past practice, and the Archie McDonnell award required
the Respondent to use the pool for all transfers. Spitzer
replied that he would look at the award again, but felt
that the only reference there related to upgrades.
Spitzer again stated that this issue should be arbitrated.
Latus accused the Company of manipulating the Union
into filing the policy grievance so that it could compel
arbitration, declaring that as this issue had been arbitrat-
ed before in the McDonnell matter, it should not be
done at this time. Latus declared that before this griev-
ance went to arbitration, he would file charges with the
National Labor Relations Board because the Respondent
had changed its procedure unilaterally. Spitzer told
Latus to go to the Board, declaring that when the Board
agent contacted him, he would ask for deferral under
Collyer and the Union would end up taking the matter to
arbitration anyway. However, if the Union agreed to ar-
bitration, Spitzer declared that he would not lie to the
arbitrator and say that it had not been the Respondent's
past practice to fill downgrades from the pool. Nonethe-
less, Spitzer did not feel that even if this had been done
in the past, such practice was required. It was not in the
contract. Latus responded thai if all past practices had
been put in the contract, the agreement would be as big
as a bible.
During this meeting, Spitzer gave the following rea-
sons as to why the Respondent was seeking to avoid
downgrade transfer requests: (I) it would not be benefi-
cial to the Respondent to be required to replace experi-
enced personnel with newly hired employees who would
have to be trained; (2) when the Respondent went to the
pool to accept an employee for downgrade, this caused a
chain reaction, creating vacancies upward which would
have to be filled by promotion, and (3) the Federal Gov-
ernment, affirmative action policy required that the Re-
spondent create employment opportunities for minority
personnel by slotting them into the less skilled classifica-
tions.
Latus related that during this meeting, he argued that
article 8.2 of the contract was very clear on the transfer
procedure and that article 6.6 of the agreement explained
what employees are paid following completion of the
transfer procedure. Spitzer, in turn, stated that if the par-
ties could mutually agree on an arbitrator, the Tom-
kiewicz policy grievance could be expedited for hearing
before the other grievances.3 '
Latus testified that on the following day, May 24, he
and five members of the bargaining committee again met
with Spitzer, Flaherty, Langford, and Clancy. At that
meeting, the transfer request dispute was the only open
issue. The parties essentially repeated what they had said
the day before. The union representatives again argued
that past practice and relevant contract language sup-
ported their positions concerning voluntary downgrad-
ing. The Respondent continued to assert that the issue
was arbitrable and should be resolved in that way. The
Union again resisted arbitration, accusing the Company
of causing it to file a grievance where the Respondent
had an even chance of winning before an arbitrator. The
Union restated its view that the matter was too impor-
tant to arbitrate and should be presented to the National
Labor Relations Board.
The Respondent's representatives exercised a willing-
ness to present the matter to the same arbitrator as had
heard the McDonnell case. Spitzer again told the Union
that the Company was no longer going to the pool to fill
transfers for downgraded jobs, that this was going to be
the Respondent's new policy and, if the Union did not
like it, it should grieve the matter.3 2
6. The status of the policy grievance concerning
changes in the voluntary demotions
The parties stipulated that the Tomkiewicz policy
grievance protesting the matter in dispute, after its May
16 filing, moved through the grievance procedure. A
third-step meeting regarding what grievance was held on
June 13, when the Company gave the Union a written
"' Lalus' accounl of the May 23 meeting is essentially corroborated by
Rimeri, who also related that during that session the Respondent had
agreed to settle another grievance unrelated to the present matter
:" Rimerl related that at the May 24 meeting (he Respondent again re-
peated its realsons. given on Ihe preceding day. for diallhoing voltuntary
doi ngrades Spitzer generally confirmed Ihe above iaccuntl of the Ma,
23 and 24 meelings
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer. Later the Company asked that the matter be ar-
bitrated and the Union agreed to select an arbitrator but
noted that it would oppose proceeding to arbitration as
the matter was before the Board. Further action on the
grievance has remained in abeyance.
7. The alleged unlawful disciplining of employees
for their strike participation
On May 26, following the strike, the Respondent dis-
charged employees Mike Perkins, Paul Wellna, and
Steven Tomkiewicz. Employees Terrance Maleshafske
and Wayne Moses each received 60-day disciplinary sus-
pensions, while employees Frank Dobron and Michael
Johnson were suspended for 45 and 30 days, respective-
ly. It was stipulated that all seven of these employees
had participated in the strike of May 21-22. The record
reveals that all union officers and officials, including the
various members of the bargaining committee, the chief
steward on each shift, and the shop stewards across the
various shifts also had withheld their services.33 The
General Counsel contends that the discipline afforded
these employees was unlawful as having been adminis-
tered for their participation in an unfair labor practice
strike caused by the Respondent's unlawful conduct. The
General Counsel further argues that Tomkiewicz and
Wellna, in any event, were unlawfully discharged be-
cause they were union officials.
The Respondent argues that its actions were appropri-
ate as these employees had engaged in an unprotected
strike in violation of the "no strike - no work stoppage"
provision of the existing collective-bargaining agreement.
The parties have agreed to forego consideration of spe-
cific conduct by some of these employees during the
strike, which, the Respondent implied, might have affect-
ed their rights to reinstatement, and are willing to rest
the entitlement of these persons to remedy on a determi-
nation solely as to whether or not they, in fact, were dis-
ciplined for having participated in a protected unfair
labor practice strike. The Respondent also denies that
Tomkiewicz and Wellna were terminated because of
their union offices.
In asserting that Wellna and Tomkiewicz were dis-
charged for being union officials, the General Counsel
and Union principally rely on a document prepared by
Langford following a May 25 meeting of management
officials wherein the criteria for and the decision to disci-
pline evolved. This memorandum, headed "Confidential"
relating to "Discipline and discharges resulting from
wildcat strike, May 21-22," and described four numbered
"Criteria for action." The seven affected employees were
listed by name and the year they began their service
with Respondent. In the next two columns respectively
were references to the criteria met by each employee
and the penalty to be given to each. The General Coun-
sel focused on the fourth criterion as the number four ap-
.3 Of those disciplined, only Tomkiewicz and Wellna were union offi-
cials.
peared only next to the names of Wellna and Tom-
kiewicz. Criterion 4 is as follows: 34
4. Union officer (with incumbent responsibilities to
avert/discourage wildcat activities . . . yet actively
participating in action).
The four factors, culled from past arbitration awards
where the Respondent had been upheld in acting against
employees who had participated and helped maintain
wildcat strikes, were applied to the conduct of various
employees. 3 5
William Fitzpatrick3 6 and Spitzer testified that the ap-
plicable criteria and decisions to discipline were reached
at a meeting they attended on May 25 with Paul Griebel,
the Respondent's labor relations manager, general of-
fices, 3 7 and Milwaukee Plant Labor Relations Repre-
sentative Langford. From prior instances where the Re-
spondent had arbitrated grievances based on disciplinary
actions taken against participants in earlier wildcat
strikes, the Respondent had gained experience as to
standards which had been approved by arbitrators. Using
this background, Fitzpatrick suggested the four criteria
for disciplinary action which ultimately were used. As to
the fourth relating to the employees as union officers,
Fitzpatrick had told the others that if an employee is an
elected union officer, he, per se, is generally a leader. If
he generally is a leader and is engaged in overt activity
on the picket line, it could be concluded that he was a
strong participant in the wildcat activity. Fitzpatrick tes-
tified that it was not stated at that meeting that union
leaders should be disciplined because they withheld their
labor during the strike or, in addition to not working
themselves, they did not take active steps to end the
strike. 3 8
After review, the Respondent found that some em-
ployees had four factors next to their name, some had
one, and others had none. Wellna and Tomkiewicz both
had all four criteria numbers after their names in the
memorandum, with the maximum three asterisks, signify-
ing degrees of activity, parenthesized after the second
standard-active confrontation. Perkins, who also was
discharged, had the first three criteria listed after his
name with three asterisks after criterion 2. Maleshafske
and Moses, both suspended for 60 days, each had the
14 At the bottom of the memorandum it was noted that "Tomkiewicz
is one of five members of the Local 806 bargaining committee. Wellna is
the second-shift chief steward plantwide."
3s The other criteria as contained in Langford's memorandum of the
May 25 meeting were as follows:
1. Frontline activity on Sunday night or Monday morning.
2. Active confrontation involving:
(a) impeding entry to plant by action and/or words
(b) Words and/or action against management during wildcat
demonstration.
3 On scene most of time and/or off shift appearance with strikers.
:'s Fitzpatrick is the Respondent's arbitration manager, based at the
general offices, in Peoria, Illinois.
'7 Griebel, as senior official present, conducted the meeting.
." In this connection, Spitzer testified that although other committee
members, such as Lee, Coombs. Rimert, and Green. did not work during
the strike, at no time did the Respondent consider disciplining them Al-
though Green, Rimert, and Lee acted to end the strike, Coombs had not.
Hosuever, the Respondent did not consider disciplining Coomhs or any
other union representative.
536
CATERPILLAR TRACTOR CO.
first three criteria attributed with two asterisks after the
second standard. Dobron and Johnson, suspended for 45
and 30 days, respectively, were each charged under the
second and third criteria. However, Johnson only had
one asterisk after the active confrontation standard while
Dobron had two.
On the basis of the number of factors deemed applica-
ble to each employee, decisions were undertaken as to
discipline, which resulted in the above-described actions.
The seven affected employees were notified of their sus-
pension or discharge on May 26. Notice of these disci-
plinary actions also was given to the Union on May 31
with the four factors used in determining the measures
taken. At that meeting, as to the fourth criterion, Spitzer
explained that the Company had felt that, as union offi-
cers, Tomkiewicz and Williams had not met their respon-
sibility of getting people back to work.39
8. Voluntary downgrading practice before April 27
As the contract is not clear as to whether employees,
as a matter of right, may transfer to lower rated positions
by use of the pool, the principal issues herein, whether
the Respondent unlawfully had refused to bargain by
unilaterally discontinuing reference to the transfer pool
in selecting employees for voluntary downgrades, and
whether the seven employees were disciplined illegally
for having participated in a protected unfair labor prac-
tice strike caused by such alleged unilateral conduct,
must rest on the implied understanding of the parties.
This, in turn, must be determined from the negotiating
history and past practices existing prior to the Spitzer's
April 27 policy announcement, rather than the language
of the agreement.
The General Counsel and Union, as noted, assert that
the employees' right to obtain voluntary downgrading
through the transfer pool in order of seniority is implied
in articles 8.2 and 6.6 of the contract is supported gener-
ally by the Archie McDonnell award and by the past
practice of the parties to the collective-bargaining agree-
ment.
The Respondent does not deny that employees had
been granted voluntary demotions through the transfer
pool before April 27 and, in fact, Spitzer who had been
at the Milwaukee plant since August 1, 1977, testified
that he personally could not recall when a transfer re-
quest for voluntary downgrading had been refused.4 0
Nonetheless, the Respondent, contrary to the General
Counsel and Union, contends that it never had agreed,
contractually or by implication, to allow employees to
achieve voluntary downgrading, as a matter of right,
through use of the transfer pool or otherwise. Rather,
the Respondent asserts that, in the past, voluntary trans-
fers to lesser rated positions had been controlled by the
Company and permitted only to the extent consistent
with the Respondent's business requirements. When the
needs of the Company gravitated against allowing down-
grades, as in the spring of 1978, they had been curtailed.
3' While the four criteria for discipline were discussed, the Union was
not given a copy of Langford's memorandum of the May 25 meeting em-
bodying them.
40 As will be discussed, other management representatives were able to
recall when such transfer requests had not been granted
Bargaining Committee Chairman Rimert testified that
before April 27 the Respondent had placed no restric-
tions on an employee's ability to transfer to lower rated
jobs through the pool. If an employee had the seniority,
he would receive the requested transfer. Union Regional
Representative Latus, who had been bargaining commit-
tee chairman for the relevant unit from January 1972 to
November 1975, corroborated this, relating while he had
held the committee chairmanship no management repre-
sentative had informed the committee that requests for
transfers downward would be denied. Latus continued
that there had been no problems with the use of the pool
for either upward or downward movement until 1974-
75, when the McDonnell dispute, relating to upgrading
through use of the pool, was arbitrated. However, since
the Union's success in that matter, the Respondent until
April 27 had adhered to the transfer pool for both volun-
tary upgrades and downgrades. In instances when the
Respondent did not downgrade an employee as request-
ed, the Respondent would first go to the Union with an
explanation as to why the most senior relevant employee
in the pool did not receive the job.
In October 1977, the Respondent, in granting a re-
quested downgrade to Donald (Howdy) Czerniejewski,
had lost the skills of an experienced boring machine op-
erator. When the Company later experienced production
difficulties at this machine, the matter was called to
Spitzer's attention.4
Michael Johnson,4 2 employed as a welder "A," relat-
ed that on April 12, he applied for demotion to welder
"B" as he felt that the "B" position afforded better piece
work production rates and greater overtime opportuni-
ties, with the result that he would have a greater net
earning potential in the downgraded position.
Johnson related that, thereafter, on Friday, May 5,
while attending a grievance meeting, he was told by
General Foreman Glenn Van Tine that openings for
welder "B" would be coming up on the first shift,43 and
that he should put in his transfer request. As Johnson
had the seniority, Van Tine opined that he should be
able to get the welder "B" job. Johnson replied that he
would discuss the matter with his wife who did not want
him to go to the first shift. Van Tine asked Johnson to
think the matter over during the weekend and to let him
know on Monday.
On Monday, May 8, Johnson told Van Tine that he
had considered the matter and would take the welder
"B" job on the first shift. Van Tine replied that he
would tell Johnson's supervisor that Johnson had taken
the job. However, later during that shift, Van Tine
stopped by Johnson's work area and announced that
Johnson did not have the welder "B" job because "we
couldn't downgrade anymore." When Johnson asked
what he meant, Van Tine replied that the Company was
no longer going to downgrade. To Johnson's query as to
how the Respondent was going to fill these positions,
41 Spitzer testified that under the policy announced and followed on
and after April 27 Czerniejewsski would not have been permitted this
transfer
4z Johnson's testimony herein is uncontradicted
-4 Johnson sas then assigned to the second shift
537
DECISIONS OF NATIONAL LABOR RELATIONS HOARD
Van Tine answered that this would be done by hiring
people off the street. 44
Subsequently, on August 15, the Respondent and
Union settled at the third step a grievance filed by Ollie
Brooks, a welder, concerning his desire to be downgrad-
ed to jeep (fork lift truck) driver. In allowing Brooks to
transfer into the driver classification the Respondent
agreed with the Union's position that the reclassification
should be allowed as Brooks had filed his transfer re-
quest before the institution of the Respondent's policy re-
stricting downgrades. 45
The parties stipulated that of the 11 persons employed
as janitors at the Respondent's Milwaukee plant in
March 1978, the month before the April 27 policy an-
nouncement, nine had received their immediate janitorial
classifications through the transfer pool pursuant to re-
quests for voluntary demotion; one more janitor had
been downgraded from welder because he had filed a
transfer request for same and also because he was not
performing satisfactorily as a welder; and an additional
employee originally hired as a janitor had been laid off
and later recalled to his former janitorial position, where
he since has remained. 46
Manufacturing Manager Washam testified that he re-
viewed proposed moves by employees from higher to
lower rated positions when such transfers involved clas-
sifications in areas where the Respondent was having dif-
ficulty in meeting production schedules, handling such
downgrades on a case-by-case basis. Generally, before
April 27, downward moves had been processed by the
general foremen and Washam was involved only in spe-
cial circumstances. Washam related that, since his arrival
at the Milwaukee plant in 1975, the Respondent had con-
trolled downward movements wherever appropriate to
meet production needs and that during two prior inter-
vals he had declared moratoria on voluntary downgrad-
ing in order to meet production requirements.
The first such moratorium had run from July 1976
until about January 1977, and affected about 8 to 10 ele-
vated welders of a total of 30 in that classification who,
in that period, were attempting to downgrade them-
selves. In that period, the Respondent was about 1
month behind in its production schedule for a new
bracket scoop being introduced for use in conjunction
with one of its tractors and there was pressure to meet
the schedule. Accordingly, Washam told Tom Lee,
union bargaining committeeman, of the production prob-
lem, explaining that there was no one in the transfer pool
to move into the elevated welders classification and the
44 Johnson's grievance concerning the Respondent's refusal to allow
him to downgrade to welder "B." filed the next day, was not resolved at
the time of the May 21 strike. Johnson also was one of those whose
transfer request for janitor was in the pool on May 15 when Leonard
Wilson was hired for that position. As noted. Johnson was suspended for
30 days after participating in the strike.
4s Bargaining Committee Chairman Rimert testified that although
during the period of 1-1/2 years to 6 months before the start of the hear-
ing, he had unsuccessfully applied for four downgraded positions. he had
no knowledge of such positions having been filed by anyone from outside
the Company
46 The parties' stipulation shows that most of the II janitors employed
in March otherwise made use of the transfer pool in seeking reclassifica-
tions upward and downward into other positions during their careers
with the Respondent.
Respondent did not intend to hire new welders from the
street into that skilled position. Lee replied that he un-
derstood the problem and asked that Washam explain
this to the welders just as he had to him.
As requested, in July 1976, Washam and Lee met with
a group of second shift elevated welders. Washam told
these employees that the Company had to control move-
ment down from the elevated welder classification be-
cause of current production needs and as there were no
qualified people in the transfer pool available to move
into the elevated welder classification. Washam declared
his intent to control movement downward from that
classification until permitted by production requirements
or by the availability of trained personnel, stating that he
could give no date as to when moves from the elevated
classification would again be allowed.
As Lee recalled, the meeting between Washem and the
elevated welders took place in mid-October 1976 in con-
nection with a joint grievance filed by elevated welders
Tom Kress, Dale Schmidt, and Richard Bluedorn. After
Bluedorn had advised Lee that a general foreman had
told the men that they would not be able to downgrade
or transfer out of that elevated welder classification, Lee
had set up a meeting between Washam and certain weld-
ers so that the men might be reassured that they had a
right to downgrade.
Lee testified that this meeting with Washam was at-
tended by himself, Kress, Bluedorn, and Schmidt. When
Kress, corroborated by the other welders, told Washam
that the general foreman had told him he could not
downgrade, Washam replied that the Company was not
denying them this right, but that it was going to take
some time. The men were working on the Company's
"bread and butter line" the Respondent had to train
people and it is possible that the welders present would
be giving this instruction. The men were told that they
were not being denied the right to downgrade.47
Washam testified that a second moratorium on volun-
tary downgrading was effective from late 1977 into 1978,
also encompassing the restrictions on downgrading an-
nounced on April 27. The second suspension affected
two persons employed as flame cutters. One of these,
who originally had requested downgrading in July 1977,
did not receive such transfer until I year later, and then
only for medical reasons under article 3.5 of the con-
tract, after he had submitted a physician's letter.
Washam related that both in 1976 and 1977 employees
with transfer requests for downgrades were passed over
while employees were hired from outside to fill the
lower rated vacancies. He conceded, however, that he
did not tell the Union that he was imposing these mora-
toria when effectuated as he did not consider such meas-
ures to be unusual. When in 1976, he discussed with Lee
the restriction of movement from the elevated welder
classification, Washam spoke in terms of production
problems then being experienced, rather than of a mora-
' The Respondent's records show that Schmidt was permitted to
transfer down from elevated welder on December 20. 1976. Kress' griev-
ance, filed jointly with Schmidt and Bluedorn (G C Exh. 1
7
(g)), was set-
tied in the third step on February 22. 1977. when he was allowed the
requested do, rngrade
538
CATERPILLAR TRACTOR CO.
torium on voluntary downgrading. As news of these
moratoria was not conveyed to the Union or to any ef-
fected employees, no grievances were filed concerning
them.
From the foregoing, I credit Lee's account of Wa-
sham's 1976 meeting with the elevated welders. Washam
admittedly did not tell the employees or Lee of the mor-
atorium on their ability to transfer to lower rated jobs
and, of the three employees present at that time who had
grieved their inability to transfer downward, two subse-
quently received their requested reclassifications, in con-
formity with Lee's testimony that there merely had been
an understandable delay in the granting of such transfers.
All parties supported their respective positions as to
past practice by introducing voluminous documentation
of records, grievances, grievance settlements, minutes of
grievance and negotiating sessions, progress reports, and
other materials dating back to 1964. These have been
carefully reviewed and, frankly, cut both ways.
Of the 13 employees whose grievances were contained
in General Counsel's Exhibits 17(a) through (k) as having
been settled so as to allow voluntary downgrading, the
record reveals that employees John Veselka, Ron
Juneau, Paul Wellna, Tom Kress, and Dale Schmidt
eventually received the requested reclassifications,
4 8 but
that the resolutions of the other grievances, for various
reasons, did not result in voluntary downgrading.4
9
The record reveals that from 1975 to November 3,
1977, the following approximate numbers of voluntary
downgrades were granted annually: 1975-17; 1976-21;
from January 1, 1977, to May 31, 1977-21; and from
June 1, 1977, to November 3, 1977-39.
However, as noted, not all employees with pending
transfer requests in the pool for lower graded positions
were moved downward. While employee Marvin Blue-
dorn's request for reclassification to janitor was pending,
from March 1977 until when he received the desired ap-
pointment in January 1978, three persons were hired
from outside the Company to fill janitorial vacancies.
One new hiree was placed in the milling machine opera-
tor position for which Jack Milliman had an outstanding
transfer request in early 1978, and four newly hired per-
sons were given the lesser rated vacancy sought by Wil-
liam Lemke in the 13 months-from March 1977 to
April 1978-that his transfer request for such position
was pending. In addition, from various dates in 1977
through April 24, 1978, while elevated welders James
48 Contrary to Spitzer's testimony. noted in the Respondent's brief (p.
18, fn 2), that John Veselka's 1967 grievance was resolved by transfer-
ring him from one machine to another within the same classification. the
parties stipulated that the record reflects that Veselka was downgraded at
his own request.
4, Accordingly, it appears that Walter Stasiewski had requested and
received downgrading under art. 3 4 of the contract because. in his opin-
ion. he lacked the qualifications for his then-current position during a
layoff-downgrade situation: that R Tom was downgraded for medical
reasons under contract art. 3 5 and that the granting of Terrance Male-
shafske's grievance resulted in his being upgraded from receiving clerk to
his former position as straightening press operator. The grievance of
Thomas Voelker was directed at having his transfer request accepted for
placement in the pool rather than for immediate downgrade and was set-
tied on that basis. The part of the joint grievance filed by Kress. Blue-
dorn, and Schmidt as that relates to Bluedorn does not appear to have
been resolved As indicated by the Respondent a question exists as to
whether Dave Sellnow's grievance related to downgrading
Piche, William Love, and Harold Corbine had active
downgrade requests on file, they were passed over while,
respectively, 70, 116, and 57 persons were hired from
outside the Company to fill the lesser paid welder vacan-
cies they had sought.
Examination of Respondent's Group Exhibit 16, the
minutes of various meetings between the Company and
Union wherein certain employee grievances relating to
transfer requests were discussed, in the context of other
relevant materials in evidence, again shows a mixed
result. The Respondent successfully resisted the volun-
tary downgrade attempts of Donald Welk,50 Terrance
Maleshafsk, 5s and Arthur Adway. 52 Another employee
referred to in that exhibit, Joseph Mile was given the de-
sired transfer, but for medical reasons. However, em-
ployees Cary Mermal, Larry Janka, Paul Wellna, and
Merton Gruss received voluntary downgrades through
the grievance procedure. The Respondent, however, did
delay the transfers of Wellna, Mermal,s5 and Bruss until
qualified replacements for them could be found.54 John
Evseichik, another employee who had made known his
desire for a voluntary downgrade in 1971, was not ini-
tially successful, his transfer having been resisted by the
Company.
Nonetheless, as of May 21, when the strike began,
there were a total of 282 transfer requests on file for
downgrading into the various positions covered by the
collective-bargaining agreement. These included 21 for
the job of janitor.
The present language of the most applicable contract
provisions quoted above, articles 6.6 and 8.2, have re-
mained unchanged since the contract of June 1, 1974, al-
though the Respondent, during the 1977 negotiations
leading to the current agreement, unsuccessfully attempt-
ed to obtain changes in art. 8.2, the principal of such
proposal having been as follows:
In the event an opening occurs in a job classifica-
tion for which there is not then an employee who
has on file an active Transfer Request for such job
who could be equally qualified to fill such job, the
Company may fill such opening by hiring a new
employee.
0o In 1967, when Welk's grievance arose, he was needed at his gas cut-
ter's position.
s" In 1971. Maleshafske's grievance concerning his inability to transfer
to a lower rated position was disallowed because he had receised his
then-current job after having filed many transfer requests, but also>. inter-
estingly, because the existing vacancies for the desired position had been
filled by more senior employees on downgrade
xZ Although the Respondent disputed Adway's right to a soluntarN
downgrade. his grievance was withdrawn in 1971 as he was oln lasoff at
the time and the job in question had been eliminated
s A subsequent effort by Mermal at dow ngrading was unsluccessful
s4 Respondent's Exh. 16(o), the Respondent's minutes of the third step
grievance meeting of April 15. 1975. shows prior inconsistent positions
by both the Company and Union The Respondent"s spokesman at that
session stated, in effect. that art 8 2 of the contract has always been inter-
preted to honor only upgrade transfers-a positrlol iompletely) upposll e
to that taken by the Respondent in the then-pending Archie McDonnell
arbitration proceeding The union spokesman, Latus, replied that the
Union felt that art 8 2 applies only to promotions and mentiion,l nothinig
about the Iransfer system The compan) representatile anssercd that airt
2 had always applied to the transfcr request procedure The t inion, of
course. is not hound by the aiccuracy of the Respondent's mlinuics
)DECISIONS OF NATIONAL l.ABOR RELATIONS BOARD
Accordingly, in the 1977 negotiations, the Respondent
was not able to change the language of the contract to
enlarge its ability to "hire from the street." 5' 5
It would not be practicable to detail here the minutes
of the various meetings between the Respondent and
Union on the matter of voluntary downgrading during
various negotiating sessions since 1964, except to note
that the Union continued to press its view that employ-
ees should have the option clearly reserved to down-
grade themselves and the Respondent's representatives
continued to express that there would be no change in
the downgrading system and to reaffirm its reluctance
that the skills of experienced employees be lost through
such a mandatory process. At the same time, as noted,
the Respondent attempted unsuccessfully to clarify and
expand its authority to hire outside persons in preference
to those in the transfer pool who sought downgrades.
There is no language in the record concerning down-
grading that is analogous to the intent contained in the
first sentence of article 8.2, that "The Company agrees to
fill higher rated jobs whenever possible by promoting its
own employees."
Accordingly, I find that the parties did not formally
contract that the transfer request system must be used for
voluntary downgrades.
Nonetheless, even in the absence of specific contrac-
tual agreement, it is settled that work practices may
become an integral part of the employees' terms and con-
ditions of employment, not lawfully subject to unilateral
change in the absence of bargaining.
B. Discussion and Concluding Findings
1. The alleged unilateral change in the Respondent's
policy concerning voluntary downgrading of
employees
From the entire record, it appears that although the
Union was not successful in compelling the Respondent
to agree to specific contractual language establishing a
right by employees to voluntarily downgrade themselves
by April 27, 1978, when the Respondent's announcement
of a new policy on this matter was made, such a practice
had evolved by custom and usage into a term and condi-
tion of employment.
Although the Respondent, through the years, did un-
evenly resist conceding such right and, as shown, has de-
layed and denied the granting of such requests, the prac-
tice nonetheless grew. In the first I months of 1977, the
year before the Respondent's disputed policy became ef-
fective, there were a total of 60 voluntary downgrad-
ings-21 between January 1 and May 31, and 39 between
June I and November 3. This compared to 17 such trans-
fers in 1975 and 21 in 1976. The natural result of the ex-
panded use of this procedure was the increased belief by
employees that it was available and that it could be suc-
cessfully used, on the basis of seniority, to obtain trans-
"5 The transfer request system was first incorporated into the collec-
tive-bargaining agreements with the June 2. 1968. contract under former
art. 9.3. The relevant language of what is currently art 6.6 came into
being with the June 5, 1971. contract, set forth under what was then art
7.6. With the 1974 contract, art. 9 3 became art 8.2 and art 7 6 became
art 6.6. both provisions remaining unchanged thereafter.
fers downward. This is statistically demonstrated in that
from a unit of about 650 employees on May 21 when the
strike began there were 282 transfer requests on file for
downgrading to various bargaining unit jobs, including
21 for the position of janitor. 56 Of the II incumbent jani-
tors in March 1978, 7 had been downgraded voluntarily
into their positions by use of the transfcr pool. Of the
others, the most recent janitor to have been hired from
outside the company had begun his employment in De-
cember 1969. Also illustrative of the extent to which vol-
untary downgrading had become established was
Spitzer's testimony that since his arrival as employee re-
lations manager at the Milwaukee plant on August 1,
1977 he had no personal knowledge of any requests for
voluntary downgrading that had been denied, prior to
his announcement of April 27, 1978.
The Respondent, too, recognized on April 27 that it
was embarking on a different course. Unlike Manufactur-
ing Manager Washam, who when assertedly imposing
earlier moratoria on downgrading, had not deemed it
germane to tell the Union or the affected employees,
Spitzer, on April 27, did find it advisable to call in
Rimert to announce such restrictions. Spitzer also con-
ducted a series of meetings that same day with the plant
supervisors on all shifts in order to explain the more
stringent policy to them and to announce that the Re-
spondent's method of administering the transfer request
procedure as to voluntary downgrades was being
changed. Thereafter, all requests for transfer would no
longer be administered by the general foremen, but, for
the first time, would have to be approved by Spitzer's
office.
I also do not credit Washam's testimony that on two
prior occasions, beginning in mid-1976 and again in mid-
1977, he had twice suspended all granting of transfers
downward for months at a time in order to meet the Re-
spondent's business needs. Washam admittedly had not
informed the Union or the affected employees that there
would be no voluntary downgrading for the stated peri-
ods. Therefore, no one knew of them and potential
grievances were avoided. In addition, the duration of the
second moratorium was open-ended as it also included in
its scope the policy announced by Spitzer to Rimert on
April 27. Accordingly, extrapolating from Washam's tes-
timony, this asserted moratorium had been in effect for
about 10 months before Spitzer announced it to the
Union and supervisors, while concurrently changing the
procedure whereby such requests were to be approved.
In the meantime, from June 1 to November 3, 1977
roughly the first 6 months of the said moratorium, 39 re-
quests for voluntary downgrading were allowed.
Further, it would appear that the Respondent, in an-
nouncing its new policy curtailing voluntary downgrad-
ing in April and May, not only created exceptions which
were substantially more stringent than those previously
applicable, but then proceeded to disregard them. Ac-
cordingly, although Spitzer, on May 9, told the union
s6 As of May 15. when Leonard Wilson, hired from outside the Com-
pany, began to work as janitor, transfer requests to fill that position on
various shifts had been filed by 20 employees As janitor is the unit posi-
tions with the lowest classification, all were seeking to be downgraded.
540
CATERPIII.lAR IRACT-(R CO()
committee that exceptions to the new restraints on
downward movements would be afforded on a case-by-
case basis and that family circumstances and health con-
siderations57 could be cognizable exceptions, no effort
was made to determine whether any of the 20 employees
with transfer for janitor pending in the pool qualified in
these categories. This readily could have been done by
checking the space provided on each transfer request
form where the employee states his reasons for seeking
job reclassification. Instead, the Company proceeded
with its original purpose and, in less than 1 week, hired
Leonard Wilson from outside. It was only after Wilson
had filled the one janitorial vacancy that Spitzer asked
the Union to designate which employees in the pool the
Union believed should have an exception under the new
downgrading policy. Spitzer, in his testimony and the
Respondent in its brief, make much of the fact that the
Union did not then respond by stating which employees
qualified and by not then demanding to bargain on this
matter. Yet, at that point, the Union was confronted with
an accomplished fact and there was little left to discuss.
By the time of Spitzer's inquiry, all pending employee
reasons for transfer to the janitor's position had been ig-
nored and Wilson already had the job.5 8
The extent of this policy change and the abruptness
with which it was put into effect was exemplified in the
experience of elevated welder Michael Johnson. On May
5, 1978, Johnson was encouraged by General Foreman
Glenn Van Tine to "think about" a transfer request he
then had pending for demotion to welder "B," as he had
the necessary seniority to be able to get the job. On May
8, after considering the matter as the vacancy had oc-
curred on a shift other than that requested, Johnson told
Van Tine that he would accept the downgraded position.
Although Van Tine originally replied that he would
notify Johnson's supervisor that he had taken the job,
later that day Van Tine informed Johnson that he did
not have the job because "we couldn't downgrade any-
more," and would fill such vacancies by hiring people
off the street.
Also indicative of the abrupt policy turnabout were
Spitzer's testimony that the voluntary downgrading ap-
proved for Donald (Howdy) Czerniejewski in October
1977 would not have been permitted under the policy
announced on and after April 27, 1978, and, as noted,
that the voluntary demotion of Ollie Brooks was ap-
proved in August 1978 only because his relevant transfer
request had been filed before the new policy was an-
nounced.
The contract language quoted above from art. 8.2, and
particularly 6.6, does provide for and anticipates that
s; As art. 35 of the collective-bargaining agreement provides for re-
classification of employees for reasons of health, granting transfers down-
ward on that ground is not actually a voluntary downgrade within the
meaning of arts. 6.6 and 8 2 of the contract, the type of reclassificalion in
issue here
Ss Spitzer testified that in no event would Wilson's employment have
been terminated. hut he might have been moved to a different position
within the Company even if this required training him at the Respond-
ent's expense Such action still would have afforded Wilson preferential
treatment as compared to other employees and possiblN could have cre-
ated a situation interfering with the upsward or do\ ns. ard progression ,if
employees elsewhere in the Company
there would be voluntary downgrading, but does not re-
solve the basic issue which is whether such downgrading
is a matter of right. Unlike the situation in the Archie
McDonnell award, which related to promotions, the Re-
spondent did not contractually commit itself to fill lower
rated jobs whenever possible by downgrading employees
who requested same. The arbitrator in the McDonnell
award strongly relied upon this precise contractual com-
mitment in the first sentence of article 8.2 of the agree-
ment in concluding that the transfer pool must be used
wherever possible to fill vacancies in higher rated jobs.
However, as that award did not consider voluntary de-
motion and as there is no corresponding language in the
contract which would require the Respondent to fill
lower rated positions by downgrading, contrary to the
General Counsel and Union, I do not consider that
award germane in reaching my conclusion that the par-
ties, through usage, had gradually developed a general
practice of voluntary downgrading which by April 27,
1978, had evolved into a condition of employment not
lawfully subject to unilateral change.
The matter of just when employee use of the transfer
pool in voluntary downgrading metamorphasized into a
term and condition of employment is not free from
doubt. The Respondent's voluminous records show years
of formal opposition to the Union's persistent urging that
employees be formally afforded the right to downgrade
and the practice was uneven in its application.
There also was a difference between distant and recent
past practice. While, as demonstrated, a number of em-
ployees who had sought voluntary downgrading through
use of the transfer pool were delayed or passed over, a
number of instances, as, for example, in the 1967 applica-
tion of Donald Welk, had occurred years before the time
of the hearing. In the meantime, use of the pool for such
purpose had increased so that, as noted, by the first II
months of 1977, the number of voluntary downgrades
approved were sufficient in number to have affected
nearly 10 percent of all unit employees. 5 9 The practice
had so grown that Spitzer, in early 1978, was constrained
to consult with longtime company officials such as
Peplow and Clancy to learn whether the Respondent
historically had exercised restraints in this area.
I find that union committeeman Lee's credited testimo-
ny supports the Union's contention that, on earlier occa-
sions, when the Respondent deemed it necessary for
business reasons to avoid filling vacancies by downgrad-
ing employees from the pool, it would explain the situa-
tion to the Union and defer making such transfers with
the Union's consent until a more propitious time. Lee
testified that such an instance occurred in October 1976
when Manufacturing Manager Washam explained to him
and certain elevated welders that because of the produc-
tion requirements of the time, transfers downward would
be delayed, but not denied. Within 2 to 4 months thereaf-
·' While sonime employees. such as elevated welders Piche. I. oe. and
Corbhin., ere passed ovcr many times v hile awaiting voluntar, denmo-
tion, an appreciable number of others concurrently received requcetcd as-
signments dowunuard As admnl istraltr-ln-p ossessilon of the transtfer pool,
the R espondent unqulestionahl cnjloNed considerable pra.ti.iil Ikltitude in
slc"Ctillg CmpIhloseO for mocmnit llll apv'i.rd inam downsllard
s541
I)}I (ISI()NS ()1 NA'II()NAI I .AL()R RIEL Al()NS B()ARI)
Icr, two of the three elevated velders ewho attended the
meeting with Washani were reclassified downward as re-
questeld
As w as done during the Archie Mcl)onnell arbitration
hearing, a number of grievance settlements were intro-
duced to demonstrate that such settlements did not
always compel the Company to approve requested vol-
untary downgrades or to immediately grant them. The
Respondent, in fact, argues that it is a weakness in the
General Counsel's case that there were only a limited
number of grievances in the Union's files preserved
through the years, on the matter of voluntary downgrad-
ing and that the Union had not been uniformly successful
in obtaining settlements on terms satisfactory to itself.
This point, however, was appropriately addressed by the
arbitrator in the Archie McDonnell award, as follows:
The settlement or withdrawal of a grievance is in
itself an ambiguous act. An employee may express a
desire not to process the grievance further, or the
settlement reached may be a satisfactory result
given the time and expense involved in arbitration.
Moreover, it is impossible to tell if the reason for
the grievance's resolution related to the merits of
the particular grievance or to other matters .
The mere failure to appeal or arbitrate a grievance
alone is not necessarily proof of union acquiescence
in the Company's position.
Elsewhere in the award, the arbitrator noted that the
grievances filed "indicate a continuing Union objection
to the Company's practice, whatever their precise resolu-
tion." Also, an absence of grievances in a given area
might suggest that the problem had not been conspicu-
ous.
Having concluded that by April 27, 1978, the employ-
ees' right to use the transfer pool to obtain voluntary
downgrading had become a term and condition of em-
ployment not subject to unilateral change by the Em-
ployer, it is found that the Respondent's one-sided re-
strictions on this procedure, although not unlawfully mo-
tivated within the meaning of Section 8(a)(3) and (1) of
the Act, cannot be justified on grounds that it was de-
signed to improve operational efficiency and reduce
company costs at a busy time in the plant's history.
Rather, the issue involves the Respondent's obligation to
bargain collectively with the Union over changes in the
use and administration of the transfer request procedure
for obtaining voluntary employee downgrading. As the
Board noted, in relevant part, in Dixie Ohio Express
Company: 60
We are not to be misunderstood as holding that
the Respondent may not eliminate existing ineffi-
ciency in its business operations until first securing
the consent of the Union. We do hold that, al-
"o 167 NLRB 573, 574 (1967), enforcement denied 409 F.2d 10 (6th
Cir 1969) In Dirxie Ohio Express, the Board found that the Respondent
unilaterally effectuated certain operational changes resulting in a one-
Ihird reduction in cosls, but thereby had terminated 15 exisling jobs with-
oul ginrig the uioin an oipportunity 1to bargain. Also, see I,tnterrdutn
Printing and Litho Corp. 223 NL.RH 371) 372 (1976); 4wrcv Boaker/e. Inc.
217 NL R 730, 733 11t975)
though the Respondent had the right to determine
the need for a reorganization of its operations along
more efficient lines, the Act imposed upon it the ob-
ligation to notify the Union of its reorganization
plan and to afford the Union an opportunity to ne-
gotiate concerning changes in the plan itself, the
manner and timing of the implementation of the
plan, and the effects of the changes on employees
Contentions that as long as a business change that af-
fects conditions of employment is economically advanta-
geous to the Employer the statutory duty to bargain
with the employer's representative is inapplicable have
long been rejected.
The Respondent's reliance on Westinghouse Electric
Corporation (Mansfield Plant),6 I and Henry Vogt Machine
Co.,6 2 is misplaced. In Westinghouse, supra, the Board
found that there had been no departure from the norm
when the Respondent let out thousands of subcontracts
for work, and, as such activities had constituted no
change in the Respondent's usual method of conducting
its manufacturing operations, there was no duty to bar-
gain with the recognized Union on this matter. Contrary
to Westinghouse, in the present case it has been conclud-
ed that the Respondent had unilaterally changed the
transfer request procedure for voluntary downgrading
and is obliged to bargain on the matter. In Henry Vogt
Machine Co., supra, Respondent had long exercised inde-
pendent discretion as to whether it would grant Christ-
mas bonuses and in what amounts. Unlike the present
matter, there had been no reference whatever to such
bonuses in the contract and, before raising the issue, the
Union had not sought to bargain on the matter in ap-
proximately 27 years. In those circumstances, the Board
found that the Respondent's refusal to accede to the
Union's quickly dropped proposal, that Christmas bo-
nuses be made part of the contract, merely constituted a
mutual understanding that the previous discretionary
status of the bonuses would remain. In the present
matter, some contractual reference is made to voluntary
downgrading in article 6.6, and the Union and Respond-
ent, through the grievance procedure and in contract ne-
gotiations, have consistently bargained on the matter in
dispute.
I find no merit to the Respondent's contention that
under Radioear Corporation,63 the Union had waived its
right to bargain over any change in the system for vol-
l' 150 NLRB 1574.
62 190 NLRB 122
A: 214 NLRB 362 and 199 NLRB 1161 In Radioear Corporaoion, the
Board construed a broadly phrased zipper clause in the context of ihe
negotiating history of the parties as being a conscious waiver of the
Union's right to bargain with regard to certain bonus awards. Chairman
Miller and Member Penello, with Member Kennedy concurring, rejected
a "rigid" application of the rule that waivers of bargaining rights must be
"clear and unequivocal" and found that the continuing obligation to bar-
gain must be considered in connection with various factors including: (a)
the precise wording of, and emphasis placed upon, any zipper clause
agreed upon: (b) other proposals advanced and accepted or rejected
during bargaining: (c) the completeness of the collective-bargaining
agreement as an integratiloi-hence the possible applicability of the parol
esidence rule. and (d) the practice by the same parties. or other parties,
under other collectivec-bargaining agreements.
542
CAI' FRI'II I AR 'IRACI()R ('()
utntary demotions I 'he RcspondclIt here argues tlhat as
the collective-hbargaining agreement contained a "zipper"
clause and broad reservaltiao ns of iniallagerial fun lilin I 4
and as the Union had not been successful inl prior con-
tract negotiations in ohtaining company agreement that
employees might demote themselxes as a matter of right.
the Union effectively had waived its right to bargain on
this matter during the term of the contract.
lThc record reveals that during the contract negotia-
(ions in 1918 and 1971 union proposals that employees he
permitted to demote themselves to desired jobs were re-
jected However, a practice of affording voluntars de-
motions, anticipated in the contract. continutled anid
during the 1977 contract negotiations, the Respondent
conversely was unsuccessful in its efforts to achieve nhm-
guage providing greater flexibility in hiring from the
street :"
I find that there was no waiver under RaHdlocr as,
unlike that matter, the Compans and Union here did not
lay to rest the matter of employees' rights to voluntary
downgrade during contract negotiations. Article 6.6 of
the contract. as noted, expressly specified a methodl of
compensating emrployees whho had been voluntarily
downgraded. anticipating the occurrence of samne, and, in
the 1977 negotiations, a specific restriction was agreed
on upgrading and downgrading when it was resolvled
that employees who had decided not to keep a job ob-
tained through the transfer pool could not again apply
for the same position until 6 months had elapsed
Through the 1968, 1971. and 1977 negotialions, each
side had attempted without success to obtain contract
language more directed to their respective interpretations
of the transfer request system. As demonstrated, volun-
tary demotions continued on an ever-increasing basis
until, during 1977, they had become a major factor suffi-
cient in number to have affected nearly 10 percent of the
unit. Grievances on the refusal to grant voluntary demo-
tions also continued to be processed through the years.
While not all were not settled to the Union's satisfaction.
before April 27, 1978, the Respondent did not make blan-
ket refusal to consider requests for voluntary demotion
as contrary to the contract. This was exemplified by the
August 1978 resolution of the Ollie Brooks grievance
which was settled when his requested transfer downward
was approved as filed prior to the imposition of the Re-
spondent's new policy.
'4 Art I 6 of the conltract provlides that "The Company resecr"cs io
ilself all ofr he regular rnd customary functions of mallaCigement l hich
are not expresls limited or released hy the terms of this Agreemenl'.
Art 9--Conienl and Duralionl of Agreement-par 1, is as follows:
This labor agreement. with Exhihit A "Job Descriptilins. I.abor
Grade Structure and Rairing Point Evaluatins." Exhibit It "Appreil-
lice Wage Schedule." Appendices A through t:. Agreemenl. I.lsur-
ance 'tPlan Agreemenltl and t'ensionI Agreemenl of esen date hcre ilh
cosers the entire area of cotllectie hargaining hetween the Compal y
and the I Inion for the duratiotn (f the agreement
,s1 he RespoIdeti did obtain anl aillelldrnllnt o a rl 82 of the agree-
menil to the effecl ih li all cnplosce he xohluinllarilk returnls 1o hi imllle-
dlalels held fiirmcr Iob from ai posilioln libtatiel Ibrough the triansfer re
questl sItem c;Illnl t againll ippl I;fr ithal saame c llallssiticlol for 6 loniiltht
from the date of his, %olttitrN remo.al From the broad laiinguige uscltd iii
this licx-t to-.asl restriction vould appls lo all soluiI.tary tritsiers s.helher
the abanldoed cliltr.ltllllt l hael Iee i o ilil upgraied or doiv.w gradidl Ip-
sition
Accordingly, I find thait there was no vs aiv er b\ tlhe
Union of its right to bargalin onl this issue.''
For the above reasonl. iI is ct)onclulldd that b, .r-
nounceing and implementing its niex policy restrictinig tihe
use of the transfer pocil system Io achieve ' tciliuntary de-
motions hy employ ees in lhe I;imanner hererti described,
the Respondent unilaterally cll;hanged what, by April 27.
1978, had become a terni ;andl c ondition of enlploincltl
in violation of Section 8(a)(5) aind (1) of the Act
2. The unfair labor practice strike
The General Counsel and lnitiori contend that the re-
fusal of approximately 6(K) emplolees to work from the
start of the 10:48 p m shift otn May 2. 1978, unitil thi
start of the same shift on Maay 22, a:ls catlsed b I lit Re-
spondent's unlawiful corduict in unilalterally charlging Ihe
transfer request system affecting voluhitary dow ngradinlg,
and, therefore, was anr unfair labor practice strike.
Summarizing, Rimert first learned of these new rcstric-
tions on April 27. 1978. aind they were coinfirmled by
Spitzer to the entire committee before the start of third-
step grievance meeting on Ma '9 1This xN s followccl hb
the hire of Leonard Wilson t'roll o1tldle is jalnitor tnlt
May 15 and the filing of the Tomkicwicz policN griCx-
ance in protest I day later. At the May 21 uniort meeting
called to explain the foregoing situationl andre ollther ultio
matters to the membership. the employees expressed out-
rage at the restriction of the xolhlitar\ denilotirio proie-
dure. When urged by the union leadership to pftrsue this
dispute through the policy grievance that had been filed.
the employees angrily refused alnd decided to strike, Al-
though various other matters had beel noticed for con-
sideration at that meeting, the employees' heated reaction
to the Respondent's unilateral conduct dominated the
course of the session. Even after the strike began, the
employees, on the night of May 21 and early on May 22.
resisted the urging of certain union officials to return to
work in continued protest of the Respondent's action.
In accordance with the foregoing. I find that the strike
was caused by the Respondent's unlawful action in uni-
laterally changing the transfer request system affecting
voluntary demotion ard, therefore. was an unfair labor
practice strike from its inception.
3. The discriminatory discharges and suspensions of
striking employees
On May 26, 1978, because of their participatiol in the
unfair labor practice strike on May 21-22, 1978, the Re-
spondent discharged employees Mike Perkins, Paul
Wellna, and Steve Tomkiewicz. and suspended Terrance
Maleshafske and Wayne Moses for 60 days each At the
same time, Frank Dobron and Michael Johnson received
suspensions of 45 and 30 days, respectively. The Re-
spondent, as noted, argued throughout that these em-
ployees were lawfully disciplined for haxil g participated
in an unprotected strike during the term of a collective-
bargaining agreement which contained a "no-strike. no-
lockout" provision anld a griev'nlce-arbitraliorn proce-
-; lh. hut, r hl/ (iNtyjp;. 21s NI RHI 2" l174l. moditicd 210(,
Nl RKl W41
I)tCISIO()NS ()F NATIIONAI. I.AB()R RE.IATI()NOS H()ARI)
dure The Respondent further contends, however, that
even if concluded that its conduct in unilaterally chang-
ing the transfer request system as affecting voluntary de-
motions was unlawful and did lead to an unfair labor
practice strike, as found, participation in the strike by
these employees was still unprotected activity under
Mastro Plas.tics Corp. v. N.L.R.B.," 7 as modified by
Arlan's Department Store of Michigan, Inc. 68
In Mastro Plastics, in considering when unfair labor
practice strikers may be disciplined for their actions
when their contract contains a "no-strike, no-lockout"
provision, the Supreme Court held that such strike activ-
ity must be in protest of "unfair labor practices destruc-
tive of the foundation on which collective bargaining
must rest." The Board later ruled in Arlan's supra, that
"only strikes in protest against serious unfair labor prac-
tices should be held immune from general no-strike
clauses." 69 In determining whether particular unfair
labor practices are sufficiently serious to apply to Mastro
Plastics, the Board has avoided any precisely worded test
and evaluates each case on its own facts.
I have reviewed the various cases cited by the Re-
spondent in support of its position that the unfair labor
practices found herein are not sufficient to warrant pro-
tected strike protest. The Respondent, in its brief, cited
the Board's original decision in The Dow Chemical Co.,70
as the authority it considers to be factually closest to the
case at bar, if an 8(a)(5) violation were held to have oc-
curred. 7'
In the 1974 Dow Chemical decision, the Board major-
ity found that the Respondent had violated Section
8(a)(5) and (1) of the Act by unilaterally announcing and
scheduling a change in the work schedule of the employ-
ees in its latex department from a 7-days-on-and-2-days-
off workweek to a 5-day-on-and-2-day-off week, as such
change in the employees' work schedule was not sanc-
tioned by the contract. The Board found, in accordance
with Arlan's Department Store, supra, and Atlantic Rich-
field Company,72 that the Respondent's unlawful unilat-
eral conduct "was not of such serious nature as to be de-
structive of the foundation of which collective bargain-
ing must rest." It then was found, inter alia, that the Re-
spondent did not violate the Act by discharging the
striking employees.
However, after the Respondent's brief in this matter
was filed, the Board issued a supplemental decision in the
same Dow Chemical Company, case,7" wherein a major-
ity, as a deterrent to hasty strike action, affirmed a con-
tinued intent to adhere to the "Mastro Plastics/Arlan's
formula." However, revising its earlier findings, the
Board, in the supplemental decision, ruled that the unfair
' 5(0 U S 27()(1956)
,I 1i3 NlHRB 8t}2
1l Nl.Rti ait 0(7. vupra
71 212 NLRH 31 (1974)
7' See Re'p hr p 57
72 199 NLRII 1224
':' 244 NilRH No, 129 t'his supplcmenltal dccisioiil w;ls issued lfilhko-
nmg remand by Ih S. Ciurt ffI Appeals fior IhI third Circuit at 530
t:
2d 265 (1976), ceri dallied 429 S 3 84 (1976) '-he toLurt did 11t1 dislurh
the 8(a)(5) iied (1) finding hiecd om Umillcral chaniige of i .tork schedulc
hut aked the BHoard. , amilng oitler Ihings. io rIcva ll ui the cOtrlllnuel d ip-
plicahility ol the I4raln' Dlparnimcll Store nSlt dificaiiill ii t .o itrr, Plolul,
(orp
labor practices in that matter were serious within the
meaning of A4rlan' and had precipitated the strike. The
Board concluded that in such circumstances, the Union
was not obliged to complete the steps of the grievance
procedure or to make a written request for arbitration.
In accordance with the Dow Chemical supplemental
decision, it is concluded that the unfair labor practices of
the Respondent herein were serious within the meaning
of Arlan's Department Store and that the strike of May
21-22 was protected. Both Dow Chemical and the present
case involved unilateral changes of established terms and
conditions of employment in violation of the Respond-
ent's duty to bargain with the employees' recognized
representatives and, accordingly, go to the essence of the
bargaining relationship itself.
Having found that the strike was an unfair labor prac-
tice strike from its inception on May 21, 1978, in protest
of the Respondent's unilateral precipitating action, it fur-
ther is found that the terminations of Wellna, Tom-
kiewicz, and Perkins, and the suspensions of Maleshafske,
Moses, Dobron, and Johnson, all unfair labor practice
strikers, occurred in violation of Section 8(a)(3) and (1)
of the Act. 7 4
4. The union offices of Tomkiewicz and Wellna as
additional ground for their discharge
The General Counsel, citing Board decisions in Preci-
sion Castings Company, etc., 7 5 and Gould Incorporated, 76
contends that their discharges of Wellna and Tom-
kiewicz further violated Section 8(a)(3) and (1) of the
Act as such action also had been taken because they
were union officials. In this, the General Counsel relies
on the fourth criterion for discipline set forth in the
memorandum prepared by the Respondent's labor rela-
tions representative, Langford, memorializing the deci-
sions for disciplinary action taken by company officials
following their May 25, 1978, meeting on this matter.
The fourth criterion, which was applied to Wellna and
Tomkiewicz alone of the seven employees slated for dis-
cipline, reads as follows: Was "Union officer (with in-
cumbent duties to avert/discourage wildcat activities
. . . yet actively participating in action)." A note at the
bottom of the memorandum identified Tomkiewicz as
one of five members of the Local 806 bargaining com-
mittee and Wellna as second-shift chief steward
(plantwiide). While this memorandum was not given to
the Union, the four standards used in determining the
reasons and extent of discipline to be afforded these
seven employees were furnished.
The Respondent denies that Wellna and Tomkiewicz
were terminated because of their union offices. The four
criteria used had been designed as means of determining
who the leaders of the strike were, and that all of these
criteria had been upheld as permissible standards for dis-
cipline in prior arbitration proceedings. The fourth crite-
rion had been selected with the understanding that since
union officers were recognized as leaders generally, it is
74 Also iee N.,orth Iasrt OAlula/ltom (it ,r lanujau(lurmlg (wolpunl. 21h
NI Rit 1158 (1978). uppllenc letig 2lO1 NIRH 135 (19771
" 231 NI.RI 18i
7,i 217 NI RB 881, elIf,,rTeitcTii dtIlled l 12 I: 2d 728. z(d Cir (197L)
544
CAl'FRPILI.AR TRACIFOR C( ).
reasonable to infer that union officers who participated
in what the Respondent considered an illegal work stop-
page also were acting as leaders during the strike itself.
The Respondent argued that other union officials who
did not work during the strike were not disciplined and
urged that it should be noted in evaluating the memoran-
dum that Langford, who had prepared it was then newly
arrived to the labor relations field, had only summarily
described the criteria employed, and that it was higher
management, not Langford, which had established and
applied the standards in question.
In Precision Castings Company, supra, and Gould, supra,
the Board found that the Respondents had violated Sec-
tion 8(a)(3) and (1) of the Act by disciplining certain em-
ployees who had taken part in unprotected strikes, be-
cause of their status as union officials.7
The present matter is particularly distinguishable from
Precision Castings and Gould, of course, in that here it
has been found that the disciplined employees had par-
ticipated in a protected unfair labor practice strike,
rather than the unprotected strikes in those cases. None-
theless, I would conclude from the fourth criterion, as
used and explained to the Union, that the Respondent
had violated Section 8(a)(3) and (1) of the Act by dis-
charging Wellna and Tomkiewicz because of their status
as union officials, even if the strike were unprotected.
The future of Precision Castings and Gould has been
opened by the recent decision in Rogate Industries,
Inc.,78 where the full Board considered whether state-
ments by the Respondent, referring to certain discharges
as union officials in connection with the actions taken
against them for participation in an unprotected strike re-
flected an unlawful motive. Members Penello and Trues-
dale7 9 found that as the discharged union officials had
participated in an unprotected strike, they were subject
to termination. They would not there consider the Re-
spondent's statements identifying the individuals' union
status among reasons for termination as indicative of un-
lawful intent "inasmuch as those statements merely
pointed out that, despite the contractual 'no strike'
clause, these union officials had acted in derogation of
the contract in joining the strike."80
Member Murphy, concurring, found Precision Castings
and Gould to be inapplicable to Rogate, and held that the
decision to discharge had been based on the individuals'
strike activities, and not "solely because of their status as
union officials." While finding that an employer's refer-
ences to discharges as union officials may be evidence of
unlawful motivation, under the facts of Rogate, such
statements by that Respondent did not suffice to establish
same.
Chairman Fanning and Member Jenkins, in their joint
dissent in Rogate, noted that the contract there did not
place any additional burden on union officials in the
event of an unauthorized strike and found that the "Re-
71 In the present case. unlike Precirion Castings and Gould. there was
no specific language in the contract obligating the Union to take action
to end such a strike
an 246 NLRRB No 143 (1979). See also the ver, recent refusal of the
U S. Court of Appeals for the Third Circuit to enforce Gould, vupra
7' These members, consistent with their dissenllt in Gould, svould hase
overruled Prerciion Cu(atingi
"n 246 NIRH No 143, vupru
spondent's relation of its disciplinary action to the union
status of the targets of that action" constituted clear ad-
mission of unlawful motivation indicating violation of the
employees' statutory rights.
Precison Castings and Gould remain binding Board law
and it is established that union officers may not be disci-
plined for engaging in a strike, whether or not protected,
merely because of their union status. 8 t From the testimo-
ny of the Respondent's arbitration manager, Fitzpatrick.
that at the May 25 meeting when the disciplinary meas-
ures were decided he had declared, in effect, that elected
union officers are generally. per se, leaders who, if on the
picket line, could be deemed strong participants in the
wildcat activity; Langford's memorandum of the May 25
meeting which set forth union officer status as a factor
for discharge and identified the union offices held by
Tomkiewicz and Wellna; Spitzer's statement on May 31
to the union committee in explanation of that criterion
that Wellna and Tomkiewicz were, in part, discharged
for being "union officers" who had not met their respon-
sibility of getting people back to work; and the fact that
two of the three persons discharged were union officials.
it is concluded, giving the Respondent's words their
usual meaning, that a material consideration leading to
the discharge of Wellna and Tomkiewicz was their status
w.ithin the union.8 2
Accordingly, it is found that even if the strike herein
were not protected, the Respondent by relying in part on
the union positions of Tomkiewicz, and Wellna in dis-
charging them, violated Section 8(a)(3) and discharges
are unlawful.8 a
5. The applicability of deferral to arbitration
The respondent, in the second and third affirmative
defenses to its answer and in its brief, argues that this
entire matter should be deferred to arbitration under the
principles adopted in Collyver Insulated Wire, A Gulf and
Western Systems Co. 8 4 In its meetings with the union on
May 23 and 24, 1978, the Respondent had offered to ex-
pedite such a proceeding. The General Counsel and
union, having submitted these issues to the Board, op-
poses arbitration.
In Northeast Oklahoma City Manufacturing Compa-
ny,85 the Board ruled:
Whether or not the Respondent's changes in the
payment of bonuses and its conceded delinquencies
,' See also General Motors Corporarion. 218 NLRB 472 (l975L Indanau
& Michigan Electric Company, 237 NLRB 226, enforcement denied 5I'9
F 2d 227 (7th Cir 1979)
1' A, norled. unlike Precision1 Ca,rings and iGould e.en If the 0 rike had
not been protected, there vias no contractual language requiring the
Union to take steps to end the strike
-" N.lR .B Whirrn UachihneI WorAs, 2(4 F 2d 881. 885 i' I Cir
1951)
". 192 NR.KH 837 (1971).
"' 230 NLRB 135 (1977) In Northeast OAluhoma Citv. Iht clmplaint
alleged that the respondentl biolaied Sec 8(a)( 5) and (ll and Sec 8(a)(3)
and (l1 of the Actl respectoiely) by failing to pay huituse and hb di,
charging 12 employees A,,ho sIrutk allegedly a.ser the failure if the re-
,plondenlt Ilt make such timels parrmnletis Ihe trike in that millter ic-
curred during the term lof a onlliract Ihatl co.llued a nol-,trike Jlaulle aTid
prosided for a grlcx alne-arbilratllon prlocedure
545
I)Et (ISI()NS ()F NATIONAL l.ABOR RELATIONS BO()ARI)
in such payments violate Section 8(a)(5) is an issue
involving not only the "private" contractual rights
of the Respondent and Union, but also the quite
separate rights of the employees to engage in con-
duct ostensibly coming within the protection of
Section 7 of the Act. In such circumstances, we
perceive no just basis for deferring this case to arbi-
t ration : . .
:l Sce (,; m'lrul .lnerlan lrrtnporalrlton (;orporltnl. 228 NIRB
808 (1977) Chairman IFanning would nol defer the 8(a)(5) allega-
till-s it, arhilraltilon irrLspeclisc of Ihe presence of 8(a)(3) and (I)
allegalitnls See Ihis and Mcnlber Jenkins' dissenting opin min Roi,
Robtm,,i. Inc, 1-. da/h/a Ro Rob,hino,, C(hevrolet. 228 Nl.RH 828
( 1977)
In Alfred M. Lewis, Inc. v. N.L.R.B., 86 the U.S. Court
of Appeals held that:
. . . arbitration concerning the propriety or fair-
ness of the Company's policy after it had been put
into effect was not a substitute for bargaining be-
tween the Company and the Union as to whether
the policy should be adopted in the first instance.
An essential aspect of the Union's role in collec-
tive bargaining is its right to be consulted by the
employer about mandatory subjects of bargaining
and to make comments, objections, or suggestions
to the employer before action is taken. This is a
practical mechanism to insure the stability of indus-
trial relations. The Board correctly held that the
employer disregarded it here. It would wholly un-
dercut the duty to bargain if the employer were al-
lowed to act with reference to a mandatory bar-
gaining subject and then simply defend its actions in
a later arbitration hearing.
As it has been found that the Respondent had violated
its bargaining obligation by unilaterally implementing
changes in the transfer request system without bargaining
with the Union, had unlawfully discharged or suspended
7 employees in violation of Section 8(a)(3) and (1) of the
Act for engaging in a protected strike protesting such
conduct, and had further violated Section 8(a)(3) and (I)
by terminating two of these employees because of their
official status in the Union, in accordance with the
above-quoted authority, I find no basis for deferring this
matter to arbitration.
IV. I HIE FFF IC OF TrHF UNFAIR IABOR PRACTCICS
UPON (OMMI:RCIE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
" 8 5 7 F2lI 4(1) I9lh Cir 1978), enmfg i relesva nt part 22t Nl.RB 757.
758 (1'177)
CONCI USIONS OF LAW
1. Caterpillar Tractor Co., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 806, Allied Industrial Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees, includ-
ing apprentices and probationary employees employed
by the Respondent at its Milwaukee, Wisconsin, location,
excluding executive, office, and clerical employees, engi-
neering department employees, guards, and supervisors,
as defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times relevant herein and continuing to date
the above-named labor organization has been the exclu-
sive representative of all employees in the aforesaid ap-
propriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally announcing and effectuating changes
in the transfer request system which would restrict em-
ployees in obtaining voluntary demotions within the bar-
gaining unit, the Respondent violated Section 8(a)(5) and
(1) of the Act.
6. The strike which began on May 21, 1978, was a
protected unfair labor practice strike that had been
caused by the Respondent's above-described unlawful
conduct.
7. By discharging and refusing to reinstate employees
Steve Tomkiewicz, Paul Wellna, and Michael Perkins,
and by suspending employees Michael Johnson, Wayne
Moses, Frank Dobron, and Terrance Maleshafske for
participating in the above-referred strike; and by termi-
nating and refusing to reinstate Wellna and Tomkiewicz
for the additional reason that they were union officials,
the Respondent violated Section 8(a)(3) and (1) of the
Act.
8. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and are not properly defer-
rable to arbitration under Collyer Insulated Wire, supra.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
The Respondent will be required, upon request, to bar-
gain collectively in good faith with the Union as the ex-
clusive representative of the employees in the aforemen-
tioned unit on wages, hours, and other terms and condi-
tions of employment, including use of the transfer re-
quest system by employees to achieve voluntary demo-
tion, and to revoke and cease enforcing its unilateral
changes in the transfer request system which restrict em-
ployees in obtaining voluntary demotions within the bar-
CATIFRPII I.AR TIRACTOR C()
gaining unit.? 7 If an understanding is reached, it should
be embodied in a signed, written agreement.
As the strike herein has been found to be an unfair
labor practice strike and, as the Respondent, on May 26,
1978, discriminatorily terminated employees Steve Tom-
kiewicz, Paul Welina. and Michael Perkins, refusing to
reinstate them, and unlawfully suspended employees Mi-
chael Johnson, Wayne Moses, Paul Dobron, and Ter-
rance Maleshafske, because of their participation in the
unfair labor practice strike of May 21-22, 1978, it is rec-
ommended that the Respondent offer Perkins, Tom-
kiewicz, and Wellna immediate and full reinstatement to
their former positions or, it those positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges
previously enjoyed, and make each of them, and John-
son, Moses, Dobron, and Maleshafske, whole for any loss
of earnings they may have suffered by reason of the Re-
spondent's unlawful discrimination against them. An em-
ployee's backpay period shall begin with his termination
or suspension and shall terminate with the offer of rein-
statement or recall from suspension, as the case may be.
Loss of pay, with interest thereon, is to be computed in
the manner prescribed in F. 4 Woolworth Conpany,"H
and Florida Steel Corporation .'
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'" t
The Respondent, Caterpillar Tractor Co., its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, suspending, or otherwise discriminat-
ing against any of its employees because of their partici-
pation in protected strike activities.
in The Union. in its brief, requested that beyond directilig the Re-
spondenl ito cease and desist from failing to follow the transfer request
pricedures concerning voluntary demotions. as existed prior toi April 27.
1978. the Respoundem also should he compelled to place any employee in
the job classification such employee swould have received but fir the Re-
spondent's unilateral action The Union thereby would displace. if neces-
sary. all persons newly hired into such classifications from outside the
Company However. the record reveals that only Leonard Wilson had
been hired "from the street" to fill a lower rated positioni While recog-
nizing the possibility, if not the probability, that others may have also
have been hired in contravention of that aspect of the transfer request
system, the right to voluntary demotion as it existed before April 27, was
less than precisely enforced Also, agreed delays have occurred in re-
sponse to business requirements It. therefire, is not determinable which
or how many employees actually would have been voluntlarily trans-
ferred downward since Wllsoin's hire event if the new pohlicy had not been
announced Rather, it would seem more appropriate to remove the dis-
puted restrictions. to recognize the right if employees Io seek voluntary
demotions through the transfer request system as a term of employment
not subject to unilateral change. and to afford the Union and the Re-
.pondent an opportunity to bargain with respect to this matter as of the
present time
"" 90 NLRB 289 (1950)
n* 231 NLRB 651 (11771 See, generally, lIii Plumbing & Ieauingl Co..
It8 NLRB 716 (1962)
uO In the event no exceptions are filed as provided hby Sec 12 46 of
the Rules and Regulations of the National Iahbor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec 102 48 of the Rules and Regulallurs, he adopted bh the Board and
become its findings. cinclusions, and ()rder. and all objeclionlis theret)o
shall he deemed waived for all purposes
(b) Discharging, failing to reinstate, or otherwise dis-
criminating against any of its employees because of their
status as officals of Local 806, Allied Industrial Workers
of America, AFL-CIO, or any other labor organization.
(c) Failing or refusing, upon request, to bargain collec-
tively with the aforesaid labor organization as the exclu-
sive collective-bargaining representative of the employ-
ees in the appropriate bargaining unit by unilaterally an-
nouncing and effectuating changes in the transfer request
system that restrict employees in obtaining voluntary de-
motions w ithin the bargaining unit. The appropriate unit
1is:
All production and maintenance employees, includ-
ing apprentices and probationary employees em-
ployed by the Respondent at its Milwaukee, Wis-
consin, location, excluding executive, office, and
clerical employees, engineering department employ-
ees, guards, and supervisors as defined in the Act.
(d) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2.Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Recognize Local 806, Allied Industrial Workers of
America, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the above-described unit.
(b) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, and other terms and con-
ditions of employment, including changes in the transfer
request system affecting its use in achieving voluntary
demotions. and. if an understanding is reached, embody
such understanding in a written, signed agreement.
(c) Offer Michael Perkins. Steve Tomkiewicz, and
Paul Wellna immediate and full reinstatement to their
former jobs or. if those jobs no longer exist, to substan-
tially equivalent jobs without prejudice to their seniority
or other rights and privileges previously enjoyed. and
make each of them and employees Michael Johnson,
Wayne Moses, Paul Dobron, and Terrance Maleshafske
whole for any loss of pay suffered by reason of the Re-
spondent's discrimination against them in the manner set
forth in the section of this Decision entitled "The
Remedy."
(d) Expunge from the Respondent's personnel and
other relevant records all references to the disciplinary
actions taken against the above-named individuals and re-
frain from using such entries as grounds for future disci-
plinary action against these employees.
(e) Preserve and, upon request, make available to au-
thorized agents of the Board, for examination and copy-
ing, all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Post at its plant in Milwaukee, Wisconsin, copies of
the attached notice marked "Appendix." 9 ' Copies of said
notice on forms provided by the Regional Director for
Region 30, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon re-
"' In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals, the words in the notice reading "Posted by
Order (if the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
548