United Steelworkers of America

National Labor Relations Board - Board Decisions

Apr 23, 1971

190 N.L.R.B. 43 (N.L.R.B. 1971)

UNITED STEELWORKERS OF AMERICA
United Steelworkers of America , AFL-CIO, and its
Local 4338 (Miami Copper Company, Division of
Tennessee Corporation ) and Hiram C. Case. Case
28-CB-523
April 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND KENNEDY
On May 26, 1970, Trial Examiner Henry S. Sahm
issued his Decision in the above-entitled proceeding,
finding that Respondent Local 4338 (herein referred to
as Respondent Local) had engaged in and was engaging
in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that Respondent
United Steelworkers of America, AFL-CIO, had not
engaged in certain other unfair labor practices as al-
leged in the complaint. Thereafter, Respondent Local
filed exceptions and a brief to the Trial Examiner's
Decision. General Counsel filed a brief in answer to
Respondent Local's exceptions.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner only insofar as they are consistent with
this Decision and Order.
The complaint alleges that Respondent Local in vio-
lation of Section 8(b)(1)(A) and (2) caused Hiram C.
Case to lose a preferred job' by filing a grievance on
behalf of another employee, Lett, in an attempt to
"bump" Case.
The Trial Examiner found that Respondent Local's
treatment of Case violated the Act. In reaching this
result, he concluded that the action taken against Case
' Respondent Local has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d
362 (C A 3) We find no such basis for disturbing the Trial Examiner's
credibility findings in this case
' The advantage of the job, known as a second man "on the hill," is a paid
lunch break and a 30-minute earlier quitting time, required by a state 8-hour
portal-to-portal mining law "On the hill" refers to the mining phase of the
Employer's operation
43
was motivated by Respondent Local's resentment over
Case's protected activities, and thus was in contraven-
tion of Section 8(b)(1)(A) and (2). He also found that
officers of Respondent Local restrained and coerced its
members in violation of 8(b)(1)(A) by demonstrating
the consequences of opposition to Respondent Local's
leadership. The Trial Examiner relied essentially on the
Board's decision in Miranda Fuel Company, Inc.,' to
support his ultimate findings of violation. We disagree
with the Trial Examiner.
In Miranda the Board found unlawful certain union
activity adversely affecting an employee's job status
because such action was predicated on certain arbitrary
and invidious grounds and was in obvious conflict with
the provisions of the existing, applicable bargaining
agreement. The union had failed, the Board held, to
comply with its statutory obligation of fair representa-
tion for all employees. The Trial Examiner in the in-
stant case does not make a specific finding but instead
implies, by means of discrediting testimony going to the
reasons for settling the grievance in Lett's favor, that
Case's treatment was contrary to the terms of the col-
lective-bargaining agreement. It is not necessary, in our
opinion, to resolve whether Case's or Respondent Lo-
cal's position is contractually more meritorious.
Rather, we believe it is sufficient to note here that Re-
spondent Local's construction of the agreement is a
reasonable one, not at all contrary on its face to the
terms of the collective-bargaining agreement. There is
also no contention that Respondent Local's position is
contrary to past practice. Indeed, the outcome of the
earlier Lett-Hetrick grievance discussed, infra, might
well be considered as support for Respondent Local's
claim. Thus, it would appear that in 1969 Lett did in
fact have an arguable claim over Case to the preferred
job, within the provisions of the bargaining agreement,
on the basis of his allegedly superior seniority. Indeed,
Lett's grievance was upheld at the third stage of the
grievance procedure.' There is no evidence indicating
that Case requested that the grievance be pursued to
additional stages, including arbitration. Consequently,
we find that Respondent Local did not act unreasona-
bly, arbitrarily, unfairly, in violation of contract, or
without legitimate purposes in seeking Lett's replace-
140 NLRB 181, enforcement denied 326 F 2d 172 (C A 2)
The General Counsel attempted to prove that Lett's grievance of July
14 was filed without his knowledge or consent We are of the opinion that
such a distinction is immaterial in the facts of this case, since it is undisputed
that Lett became aware of the grievance after it was filed, at the least, and
made no attempt to withdraw it Lett thereby adopted the grievance as his
own Moreover, Case himself testified that Davis had told him that Lett had
requested the job
' Millwright's Local Union 1102, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Planet Corporation), 144 NLRB 798, Ar-
mored Car Chauffeurs and Guards, Local Union No 820, etc (United States
Trucking Corporation), 145 NLRB 225, Houston Typographical Union No
87, etc (Houston Chronicle Publishing Company, etc), 145 NLRB 1657, cf
Miranda Fuel Company, Inc, supra
190 NLRB No. 12
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of Case.
We also find, contrary to the Trial Examiner, that
the evidence does not establish that the grievance filed
against Case which caused him to lose his preferred job
was related to his protected activities . A careful review
of the 1967 incidents relied on by the Trial Examiner
to support his finding of discriminatory motive reveals
not the slightest hint that Davis , Respondent Local's
president, was angry with Case or that he thereafter
harbored resentment or vengefulness toward Case. If
there was any anger or resentment it appears to have
been on Case's part. In fact, more than 2 years expired,
during which time Case became job steward , before
another incident developed between Case and Re-
spondent Local; namely, the processing of the Hetrick
grievance by Case in which it was decided that Lett and
not Hetrick was entitled to the job of being Case's relief
man on the hill. The record reveals that it was again
Case who resented the disposition of the Hetrick griev-
ance. Case demonstrated his anger by resigning as job
steward and by attempting to resign from the Union
and withdraw his dues checkoff authorization.
There is no suggestion that the grievance filed by Lett
in this instance , which appears highly similar on its face
to Lett 's later grievance filed against Case, was dis-
criminatorily motivated. The only shred of evidence
suggesting that Respondent Local filed the July 14
Lett-Case grievance for prohibited considerations was
Case's testimony to the effect that while the grievance
was being processed, Case told an officer of Respondent
Local that it looked like the Union was seeking his job.
The official answered , "Well, why shouldn't they. You
were one of those three that turned in a paper resigning
from the Union ." However , even assuming that such
animosity played some role in the preparation of the
grievance, the fact of the matter, as found above, is that
Lett was arguably entitled to the preferred job under
the contract. Under these circumstances, to ignore
Lett's contractual claim and order the reinstatement of
Case might well put the Employer in the position of
placing Case in a job that he would not be entitled to
under the collective -bargaining agreement.
In view of the foregoing, we conclude that the Gen-
eral Counsel has failed to prove by a preponderance of
the evidence that Respondent Local violated Section
8(b)(1)(A) and (2) of the Act. We shall, therefore, dis-
miss the complaint in its entirety.
ORDER
It is hereby order that the complaint herein be, and
it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner : This proceeding was
heard in Globe, Arizona, on February 17, 1970. The com-
plaint which issued on December 11, 1969, on an initial
charge dated September 25, 1969, alleged that Respondent
United Steelworkers of America, AFL-CIO and its Local
4338,' herein called Respondent , engaged in unfair labor
practices proscribed by Section 8(b)(2) and 8(b)(1)(A) of the
Act by affecting the employment status of the Charging
Party, Hiram C. Case, because he had antagonized union
officials. Respondent Local and the International filed sepa-
rate answers , which in substance are general denials alleging
that Local 4338 processed its members grievances in good
faith whereas the International avers that the union officials
named in the complaint are neither agents of the Interna-
tional nor authorized to act with respect to all the allegations
in the complaint . The issue is whether the Respondent con-
spired to deprive its member Hiram C. Case of a preferred job
by causing the Employer to relegate him to a less desirable
job because Case had aroused the union officials' hostility by
opposing them . The conflicting contentions of the parties are
set forth in their respective briefs which have been fully con-
sidered. Upon such consideration , and upon the entire record
in the case and from observation of the demeanor of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Employer , Miami Copper Company, a division of
Tennessee Corporation , herein called the Company , a Dela-
ware corporation , is engaged in the operation of a copper
mine at Miami , Arizona . In the past year , the Company
mined and sold products valued in excess of $50,000 which
were shipped directly to various states of the United States
other than Arizona. It is found that Miami Copper Company
is engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the National Labor Relations Act.
The Respondent International and its Local 4338 are labor
organizations within the meaning of Section 2(5) of the Act.
A. Background
Prior to a strike which occurred in the spring of 1968, the
Charging Party, Hiram Case, became involved in a disagree-
ment with officials of his Union with respect to wage rates
being paid to certain employees at the Miami Copper Com-
pany. During the strike , Case, while attending a union meet-
ing, got into an argument with Davis , the president of the
Local Union, when the latter made a statement that it was the
International Union which was paying the strike benefits be-
ing received by the strikers . When Case declared Davis' state-
ment was incorrect in that it was not the International's
money but money which came from dues collected from the
members, an argument ensued.
Case, who is a heavy-duty mechanic , "bid" on a job re-
ferred to by the employees as being "on the hill." This job,
awarded on the basis of seniority , entails working in the
mines servicing machines . It is considered a preferred job
because it has certain privileges ; namely, lunch is eaten on
company time and the workday ends at 4 o'clock instead of
the regular quitting time of 4:30 p.m. Case was assigned to
this preferred job as he had more seniority than any other
' The name was amended at the hearing.
UNITED STEELWORKERS OF AMERICA
caterpillar heavy-duty mechanic who exercised their right to
bid for the job.'
Case later became union job steward . During his incum-
bency, an employee named Hetrick filled in for Case "on the
hill" on the 2 days which Case had off each week. Tommy
Lett, another employee, who had more seniority than He-
trick, then filed a grievance to displace Hetrick as Case's relief
man. In the adjudication of the grievance , Lett was repre-
sented by the Union and Hetrick by Case in his capacity as
job steward . Case argued that Hetrick was entitled to the job
because Lett had not bid on the job when it was originally
posted. Lett prevailed and Hetrick ' s right to retain this 2-day-
a-week job was disallowed Case was dissatisfied with the
Union ' s attitude and evidenced what he considered an unfair
disposition of the matter by resigning as union job steward.
He-also attempted to withdraw from the Union and to rescind
his authorization for the Company to check off his union dues
from his pay and remit it directly to the Union.
Later, the Union filed a grievance on behalf of Lett to
replace Case in his job on the hill . Lett's grievance was de-
cided against him at the first stage but when the Union took
an appeal, Lett ultimately was successful at the third step of
the proceedings and was assigned to Case's job on the hill.
The General Counsel contends and Respondent denies that
there was disparate and discriminatory treatment of Case
because he had aroused the Union 's enmity eventuating in his
losing this job, all in violation of Section 8(b)(2) and
8(b)(1)(A) of the Act'
B Resolutions of Credibility
The witnesses of the General Counsel and Respondent are
in conflict in their respective versions as to the circumstances
under which the alleged discriminatee , Case, was removed
from one job contrary to his wishes and assigned to another
less desirable job. Nevertheless , after observing the witnesses
and analyzing the record and the inferences to be drawn
therefrom , it is concluded that the versions of the witnesses
for the General Counsel as to what occurred in this case merit
belief, as they appeared to be sincere and truthful witnesses
as detailed below.' Moreover , the events narrated by two of
the General Counsel 's witnesses , namely, Trice and Case,
follow a logical sequence , which is consistent with the attend-
ant circumstances in this case.' Furthermore , certain undis-
puted and demonstrable facts strengthen and fortify this con-
clusion On the other hand , the record shows that
Respondent 's witnesses , Davis and Moore, and a reluctant
witness for the General Counsel , Lett, contradicted them-
selves and one another and that some of their testimony was
' Bidding is the action of an employee in seeking a vacant job on a
seniority basis following the posting of notice of the job vacancy CCH
Dictionary of Labor Law Terms, Second Edition, p 16
Sec 8 (b)(2) reads
(2) to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a)(3) or to discriminate against an
employee with respect to whom membership in such organization has
been denied or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly required as
a condition of acquiring or retaining membership
Sec 8 (b)(1)(A) reads
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 Provided,That this paragraph shall not impair
the right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein
Universal Camera Corp v NLRB, 340 U S 474,494-497 Deepfreeze
Appliance Division v N.L R B, 211 F 2d 458, 462 (C A 7)
' Lett, who was subpenaed by the General Counsel, was requested to
meet with Counsel prior to the hearing to review his knowledge of the facts
in this matter , but he did not appear
45
not only improbable but in some respects incredible They did
not impress the trier of these facts as forthright witnesses but
appeared as not only seeking to color their testimony , but also
to be concealing facts in an effort to hide an unlawful motive
in an effort to have Case transferred from his job. This credi-
bility conclusion is based also on observation of the witnesses
with respect to the accuracy of their memones, the consist-
ency of their testimony with certain undenied facts, their
comprehension , and their general demeanor and deportment
on the stand in answering questions put to them.
C. The Testimony
Hiram Case, the alleged discriminatee , has been employed
by the Miami Copper Company for over 4 years. In the fall
of 1966, he transferred from the truck repair shop to the
caterpillar repair shop in the capacity of a heavy-duty me-
chanic.
During the course of a union meeting in 1967, Case op-
posed a proposal by M. C. Davis, president of Respondent
Local 4338 , to bring "helpers from the crusher in the mill into
the shovel shop at a lesser rate than the prevailing rate." Case
testified that he "felt it was unfair to the men there [in the
shovel shop] to bring [in] men with lesser wage rates.... ..
Case described the discussion as "pretty heated " A vote was
taken and it was decided "to take it to negotiations."
Shortly after this dispute and during the time that the
Union had called a strike against the Company in 1967,
Davis, at a union meeting , stated that the strike funds of the
Local Union were seriously depleted and that the Interna-
tional Union was donating supplemental strike funds to the
Local . Case's testimony continues as follows "I took the floor
and stated that I didn 't feel the International was giving us
funds. I felt that those were dues and money paid in from
Locals and people like us." In the ensuing argument, Kill-
ingsworth , a staff representative of the International, who was
present at the meeting, stated Davis was "right " Davis, tes-
tified Case, threatened to "disqualify " him from receiving any
strike benefits whereupon Case "disqualified" himself from
receiving any further strike benefits.
In April 1968, there was a vacancy existing for the second
job "on the hill" and Case who bid for the job obtained it on
the basis of his seniority over all others who had applied He
retained this job for a "short time" until an employee named
Caldwell replaced Case, but Caldwell held the job for only 3
weeks when he voluntarily returned to the truck shop Case
again bid on the vacant job following its posting and again
was awarded the job on the hill.'
After Case became job steward on January 1, 1969, he filed
a grievance on behalf of Martin Hetrick on May 16, 1969,
opposing a grievance filed by Tommy Lett who sought to oust
Hetrick as Case's fill -in man on the hill 2 days each week
when Case was regularly scheduled to be off work. See G. C
Exh. 7. The record is not clear , but it appears that Hetrick
bid for and obtained this job and his grievance was based on
Lett not being entitled to the job because when the job was
' In answer to a question on cross-examination , Case testified that Cald-
well succeeded in replacing him because "According to the contract, when
a job comes open it is to be posted for five days, and the senior qualified man
can bid on the job They went down the seniority list and Mr Caldwell
was the first man who took it by coming in there within five days after
the job was open [Caldwell] had more occupational seniority [than
Case] " Case explained that originally he filled the job on the hill temporarily
while it was being posted and applicants bid on the vacant job Caldwell had
more seniority than he and was awarded the job Caldwell decided 3 weeks
later to give it up and then Case bid for the job again and since he had the
most seniority of all qualified employees who applied for the job during the
open period he obtained the hill job
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted Lett did not bid for it. Lett prevailed when Hetrick's
grievance was disallowed. See G. C. Exh. 8. Case testified that
awarding these 2 days of work on the hill to Lett which
Hetrick had performed for some months was "unfair" and he
so informed Davis, the president of the Local, at a grievance
hearing. Case testified that he asked Davis "what other steps
could be taken ... [under] the contract; you have more than
one step to take, and I thought that we should be able to take
this to a higher place. Mr. Davis told me that it was as far
as he could take it. There was nothing else we could do about
it."'
Case was so incensed by the decision that he resigned as job
steward and attempted to withdraw from the Union' and to
rescind his authorization for the Company to check off his
union dues from his salary and send it to the Union "because
[he] felt there was a conflict of interest because the union
officers were working for the Company."
Case telephoned Davis on July 12, 1969, and asked him "if
it was true that the Union was giving Mr. Lett my job.
... Mr. Davis said Mr. Lett had come down there on Thurs-
day [July 10]." The following day, testified Case, he spoke to
Moore, the financial secretary and the Union's grievance
committee chairman, and asked him "if it was true that the
union was giving my job to Mr. Lett and Mr. Moore said that
we sure are. I [Moore] made the grievance and signed it
myself. He said that the letter of resignation [Case] sent the
union, 'I take it personally.' I am quoting Mr. Moore. He said
he made up the grievance. I didn't know there was a griev-
ance until that time. But that was the grievance that was filed
the 14th [July]' . . . Moore said: `That [he] signed it himself.'
He said, 'The resignation that you presented to the union, I
take personally."' Thereafter, Case met with Trice, the Com-
pany's master mechanic, and Davis, the Union's president,
under step two of the grievance procedure. 10According to
Case, "Mr. Trice said that he would not give a favorable
answer on it because he didn't feel that Lett was entitled to
take the job." A few days later, Case testified that he spoke
to Martin, the vice president of the Union, at work and told
him, "it looked like the union was trying to give Mr. Lett my
job. Mr. Martin said, 'Well, why shouldn't they. You were
one of those three that turned in a paper resigning from the
union.""'
Trice, the Company's master mechanic, handled the griev-
ance at the second stage at which time he decided in favor of
Case, but at the third stage he was overruled by Hughes, the
assistant general manager of the Company. As a conse-
quence, Case was removed from his job on the hill and sup-
planted by Lett.
Lawrence Trice, who has been the Company's master me-
chanic since 1956, testified that the two jobs on the hill, which
are in the mine department, are filled by caterpillar repair
shop heavy-duty mechanics on the basis of seniority. The
successful hill job applicant, testified Trice, acquires perma-
nent status when he puts in 51 percent of his time on this job
for a 90-day period. Trice stated that Case complied with this
51-percent provision and thus acquired permanent status
with respect to this hill job so that he could not be removed
See art. VIII of the collective-bargaining agreement executed by the
Company and the "United Steelworkers of America, for and on behalf of
its Local No. 4338, hereinafter referred to as the 'Union."' G.C. Exh. 2 at
p. 1 and art. Vlll, p. 23-26.
Case testified he was informed by a company official that under the
contract, he could not resign from the Union at that time. Hetrick and
another employee, Hank Belt, also attempted to resign from the Union.
Arizona is a "right to work" state.
See G.C. Exh. 6 signed by Union Officials Davis and Moore.
° See p. 24 of G.C. Exh. 2.
See in. 8.
from that job unless he voluntarily relinquished it or was
discharged by the Company for good cause. Trice acknowl-
edged that Lett had greater occupational seniority than
Case,12 but when the hill job was vacant and posted, continues
Trice's testimony, Lett chose not to bid for the job and when
Case, who had the second highest seniority of the applicants,
was awarded the job, he could not be involuntarily displaced
as long as he performed satisfactorily. Trice testified that if
a qualified employee with the most seniority passes up the
opportunity to bid on the hill job he cannot later claim it until
such time as the applicant who obtained the job voluntarily
relinquishes it. Trice testified that ever since 1956 that has
been the way it has been done and the only time this prece-
dent was not followed was in the instant case when Lett's
grievance was upheld by Hughes, the Company's assistant
general manager, which resulted in Case losing his hill job.
Tommy Lett, a heavy-duty mechanic, has been employed
by the Company for approximately 5 1/2 years and was
Case's immediate predecessor as union job steward. He trans-
ferred to the Caterpillar shop in 1967. Some time thereafter,
Lett spoke to Davis and Moore, union officials, with respect
to his interest in obtaining one of the two jobs on the hill.
When he was asked what they told him, he answered that the
Union's officials advised him he was not eligible to apply for
it as Case had the job.
When Lett was shown his grievance" filed by the Union in
Lett's name to replace Case in the hill job, the following
appears in the record:
Q. And when did you first learn that this grievance
was filed in your name to bump Case off the hill?
A. When I knew it was filed; when I found out that
it had been filed. Mr. Moore gave the grievance to me to
read.
It was then pointed out to him that he stated in his affidavit
which he gave to the Board the following:
I did not know a grievance was filed on my behalf for the
preferred job until about a month or so after it was filed.
I did not ask that a grievance be filed.
Q. It was after it was filed that it was brought to you
and shown to you?
A. I am sure it was ... That is true. I did not know
they were filing it.
Charles Moore, financial secretary and chairman of Local
4338's grievance committee, was lacking in candor and gener-
ally unimpressive as a witness. He testified that Davis, the
president of the Union, told him to see Lett with respect to
filing a grievance for Lett to obtain Case's job. He saw Lett
at a time he does not recall, drafted the grievance, and filed
it in July. Moore's testimony reads as follows:
Q. And what took place in that conversation; give it
to us as well as you can; not your impression, but what
was actually said by you, said by Mr. Lett?
A. When I took the grievance back to him to look at?
Q. What transpired on that occasion, and on that
occasion only?
A. I don't know.
Q. You don't remember the conversation?
1' It was Trice 's testimony that Case had more seniority than Lett in the
Caterpillar shop which is "occupational " seniority but that Lett , who has
been employed by the Company longer than Case , had more "company-
wide" seniority . However, stated Trice , all hill jobs are filled by Caterpillar
shop heavy -duty mechanics.
" G.C. Exh. 6, dated July 14, 1969.
UNITED STEELWORKERS OF AMERICA
A. No, I don't
Moore testified that the meeting with Lett resulted in him
drafting a grievance for Lett at his request, which Lett read
and approved He also stated he does not recall any conversa-
tion between himself and Lett in which Moore indicated he
wanted Lett to file a grievance rather than Lett indicating he
wanted Moore to file a grievance for him.
Moore testified Case telephoned him after Lett's grievance
was filed and that Case accused him "of being out to get his
job," and that [Case] criticized his ability to represent the
Local and that Case told him "[he] didn't know what union
brotherhood meant." Moore testified that he assured Case
there was nothing "personal ... it was strictly business."
On cross-examination, Moore was shown Lett's affidavit
which reads as follows:
I did not know a grievance was filed on my behalf for the
preferred job until about a month or so after it was filed.
I did not ask that a grievance be filed. I found out when
Charley Moore, agent of Local 4338, told me on August
19, 1969 that they were filing a grievance for me to get
me the hill job.
When he was asked if he knew "of any good reason" why Lett
so stated the above in his affidavit, Moore answered- "I have
no control over what Mr. Lett testified to ... No, I can't."
M. C. Davis, president of Local 4338 for approximately 12
years, testified that Lett came to him and inquired whether
he could file a grievance to obtain Case's job and that he
answered he could. Davis suggested that Lett see Moore and
have him prepare a grievance. After the grievance was
drafted, Davis signed it and was present at the various stages
of processing the grievance Davis testified that when the
grievance was decided against Case the latter told Davis "it
wasn't right for the union to take his job away from him and
give it to someone else. I tried to explain to him that it wasn't
necessarily his job any more than it was anyone else's job. It
belonged under the seniority clause, my job, his job or anyone
else's."
On cross-examination, Davis was shown Lett's affidavit
which reads as follows
When I first went into the Cat shop, I was after M. C.
Davis, president of Local and Charley Moore about the
preferred job. They told me at the time that I could not
get the job because this man Case was on the job that I
had turned it down once before, so I could not get it.
When Davis was then asked to explain this statement, he
testified, Lett was "mistaken" and that Lett did not speak to
him about getting Case's job on the hill when Lett transferred
to the Caterpillar shop.
When Davis was shown Lett's affidavit which states that
he did not know a grievance was filed on his behalf by Davis
and Moore for Case's job until a month after it was filed and
that Lett did not request that a grievance be filed, Davis was
then asked by counsel for the General Counsel if he can
explain why Lett should have made this statement under
oath Davis replied: "I dont know of any reason why he
should say it. But it is there and it is incorrect."
Robert P. Hughes, assistant general manager of the Miami
Copper Company, was management's representative at the
third step of the grievance proceeding in the matter of Lett
versus Case." Hughes was shown the collective-bargaining
agreement, specifically article VI, pages 16 and 17. (G C.
Exh. 2.) Hughes, whose testimony was quite disjointed, lack-
ing in clarity, and gave the impression that he was engaging
in purposeful obfuscation, testified that each shop has its own
" At the final or fourth step, which it appears this matter never reached,
the management representative is the plant manager and representing the
Union is an official of the International
47
procedure for days off, seniority is not specifically denied in
the contract but the Union and the Company through long
practice have established certain procedures. Excerpts from
his testimony read as follows.
As far as the company is concerned, we recognize the
seniority is sacred to the union. They make an appeal to
us about seniority, and if it doesn't interfere with our
operations, we agree to it ... Up until the grievance [in
this case] was filed, we thought we had a procedure.
Then we got into this disagreement over the movement
of a man who bid an opening in the Cat shop and the
truck shop, truck shop mechanic. [That would be] Mr.
Lett. There was a vacancy in the Cat shop that was
posted and he bid it, and that is how he got over there
After he got over there, then he began to exercise his
occupational seniority for some of the privileges in that
particular crew . . Lett exercised his right of seniority
to go up on the hill I know that if [the man on the
hill] goes up there over 51 percent of his time over a
certain three month period, he then is considered perma-
nently in that job with respect to going home at 4.00
o'clock daily ... and having his lunch on company time.
Then another three-month period is reviewed, and that
privilege is taken away from him if he is not spending 51
percent of his time. So he can go in and out of the second
job. He qualifies for the following three months to go
home at 4.00 o'clock if he put in over 51 percent in the
90-day period. Mr. Case is the oldest man in the crew,
but he is not the senior man in the occupation ... I
based my decision on the fact that this had been pursued
through this many steps of the grievances and we could
find a logical reason for using seniority in this way, and
the company had no argument against it . We
thought there was a lack of agreement or anything else
to back up our position; that this was a fair way to settle
it ... Our position was that the man was trying to exer-
cise super seniority. The company thought it was fair to
exercise the seniority in the Cat shop crew and it would
be in order of the length of service in that crew, but we
had no agreement with the union on that We never
operated that way. There was nothing written down,
except that the Cat shop crew, the shovel shop crew, and
truck shop crew, as far as seniority within those groups.
For lack of an agreement like that, this is the way we
settled it.
Concluding Findings
It has been established by a preponderance of the probative
evidence that Case lost his job on the hill by incurring the
enmity of the union officials for no reason other than his
protected activities. Such activities consisted of Case taking
issue with Davis at a union meeting of Davis' description of
the International's strike benefits and Case resigning as job
steward and attempting to rescind the checkoff of his union
dues, as well as his effort to withdraw from the Union. More-
over, Case antagonized the union officials by opposing them
when they succeeded in dislodging him from his job on the
hill and then accusing them of unfairness in the Hetrick
matter. The record and the inferences to be drawn therefrom
reveal that Case's conduct and actions provoked the union
officials and the discrimination that followed stemmed from
these protected activities. It is found, therefore, that the Un-
ion was motivated by proscribed reasons when it caused Case
to be deprived of his job on the hill. The union officials, Davis
and Moore, also restrained and coerced its union members in
violation of Section 8(b)(1)(A) by showing them what might
happen to them if they opposed the officers and incurred their
displeasure by demonstrating the power of the Union to pro-
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tect the job security of its members at the expense of others
who had antagonized the hierarchy. For all of the foregoing
reasons, the Respondent Local 4338 violated Section 8(b)(2)
and (1)(A) by knowingly and discriminatorily denying Case
the job on the hill to which he was entitled by bringing
pressure on the Company to supplant him with Lett. Miranda
Fuel Company, Inc., 140 NLRB 181.
There is no evidence to link the International Union with
the actions of Local 4338's officers. Accordingly, it will be
recommended that the complaint be dismissed as to the Re-
spondent United Steelworkers of America, AFL-CIO.
CONCLUSIONS OF LAW
The Respondent Local Union 4338, by denying and depriv-
ing Case of his job in the course of administering the contract
with the Miami Copper Company, restrained and coerced
him in the exercise of his rights under Section 7 to engage in
concerted activities for his aid and protection and caused or
attempted to cause the Miami Copper Company to discrimi-
nate against him in violation of Section 8(a)(3), thereby en-
gaging in unfair labor practices affecting commerce within
the meaning of Sections 8(b)(1)(A) and (2) and 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent Local 4338 has engaged
in unfair labor practices, it shall be recommended that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It shall be recom-
mended that the Respondent make Case whole for any loss
of pay he may have suffered as a result of Respondent Local's
having caused the said discriminatee to be deprived of his job
on the hill by payment to him of a sum of money, plus
interest," equal to that which he would have earned as an
employee on the hill.
It will be recommended also that the Order contain an
injunction against any form of restraint or coercion by Re-
spondent Local 4338. It shall, therefore, be recommended
that the Respondent be ordered to cease and desist from
causing or attempting to cause the Miami Copper Company
or any other employer, as defined in the Act, within its juris-
dictional, territorial, and geographical area to deprive em-
ployees of their jobs to which they are entitled on a seniority
basis and for which said employees are qualified, except in
accordance with the provisions of Section 8(a)(3) of the Act.
[Recommended order omitted from publication.]
" Isis Plumbing & Heating Co., 138 NLRB 716; F. W. Woolworth Coin-
pany, 90 NLRB 289.