Cominco-American, Inc.

National Labor Relations Board - Board Decisions

May 21, 1970

182 N.L.R.B. 638 (N.L.R.B. 1970)

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cominco-American, Incorporated and Deer Lodge Min-
ers' Union Local No. 834 , affiliated with United Steel-
workers of America, AFL-CIO, Deer Lodge, Montana
and Philip Struna. Cases 19-CA-4366 and 19-CB-1441
May 21, 1970
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
DECISION AND ORDER
On February 5, 1970, Trial Examiner Richard D.
Taplitz issued his Decision in the above -entitled proceed-
ing, finding that the Respondents had not engaged in
the alleged unfair labor practices , and recommending
that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions and a brief, and the
Respondent Company and the Respondent Union each
filed cross-exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and cross-exceptions and briefs, and
the , entire record in these cases and hereby adopts
the findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
We agree with the Trial Examiner's concluding finding
that the Respondents did not apply any arbitrary or
discriminatory criteria in keying the complainants' sen-
iority, and subsequent layoff, to their length of service
within the unit. We further agree with his Recommended
Order to dismiss the complaint on this basis. We accord-
ingly find it unnecessary to consider or adopt the Trial
Examiner's other bases for reaching this result.
` Initially, we do not agree that the collective-bargaining
agreement clearly and unequivocally provided that sen-
iority should include length of service with the Respond-
ent Company at its other mines outside the unit. Rather,
we find that the seniority provisions, which appear in
article V and cover six printed pages of the contract,
when read as a whole, are sufficiently ambiguous to
necessitate resort to parol evidence for their proper
interpretation. We further find that this evidence clearly
shows that the parties had intended to include only
periods of temporary promotion from the unit to staff
positions outside the unit. We note that the seniority
lists posted by the Company, and also submitted to
the Union, pursuant to Section (h) of article V of the
contract, did not contain the names of any of the com-
plainants during the period of their service at the Compa-
ny's other mines not within the present unit. We further
note that there is no evidence that the contract provision,
stating that employees should be laid off in the inverse
as giving unit employees bumping rights with respect
to junior employees at other company mines not within
the unit-a likely compensatory provision if the Union-
were indeed surrendering rights of unit employees in
favor of senior employees at other company mines out-
side the unit. In addition, we note that as a result
of the disagreement over seniority, the parties agreed
in their subsequent renewal contract that unit employees
would not accrue seniority for periods of more than
30 days during which they worked for the Company
outside the unit.
Although the Company at first applied a different
interpretation, on January 14, 1969, it finally agreed
that the Union's interpretation should be applied. As
the Trial Examiner concedes, it would not have been
unlawful for the contract in the first instance to provide
for seniority based on length of service within the unit.
We do not pass on the Trial Examiner's further finding
that the Act is violated if seniority is based on arbitrary
criteria or standards unrelated to union membership
or activity. Rather, we rely here on the fact that the
Respondents were truly motivated by the Union' s legiti-
mate desire to fully represent the employees in the
unit, as contrasted with other company employees out-
side the unit, when the Union insisted and the Company
finally agreed to limit the seniority list to unit work.
We find no merit in the General Counsel' s argument
(contrary to the Trial Examiner's finding) that the con-
tracting parties engaged in a per se violation of the
Act, regardless of the justice of their reasons, by chang-
ing a seniority provision of the contract during the
term of that contract. As the Trial Examiner pointed
out, when economic reasons require a reduction in force
which, as here, necessarily results in loss of employment
to some of the unit employees, it cannot be said that
either the Union or the Company acts improperly in
agreeing that the selection should be made on the basis
of seniority within the unit rather than on the basis
of length of service with the Company outside the
unit.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and orders that the com-
plaint herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Trial Examiner: This case was
tried at Butte, Montana, on November 4, 1969.' The
complaint dated August 22, as amended at the hearing,
alleges that Cominco-American, Incorporated, herein
called Respondent Company or the Company, violated
Section 8(a)(1) and (3) of the National Labor Relations
order of company seniority, had ever been construed ' All dates are in 1969 unless otherwise specified
182 NLRB No. 92
COMINCO AMERICAN, INC
Act, as amended, and that Deer Lodge Miners' Union
Local No 834, affiliated with United Steelworkers of
America, AFL-CIO, Deer Lodge, Montana, herein called
Respondent Union or Local 834, violated 8(b)(1)(A) and
(2) of the Act Respondent Company and Respondent
Union filed answers by which they each admitted some
and denied other factual allegations of the complaint
but denied that they had violated the Act The complaint
was based on charges filed by Philip Struna on April
22 in Case 19-CA-4366 and on July 14 in Case
19-CB-1441 These cases were consolidated with the
issuance of complaint All parties appeared at the hearing
and were given full opportunity to participate, to adduce
relevant evidence, to examine and cross-examine wit-
nesses, to argue orally and to file briefs Briefs which
have been carefully considered were filed on behalf
of the General Counsel, Respondent Company, and
Respondent Union
Issues
I Whether Local 834 violated its duty of fair repre-
sentation and therefore Section 8(b)(1)(A) and (2) of
the Act by successfully demanding that the Company
take away companywide seniority from six employees
and substitute therefor seniority based only on continu-
ous work performed within the bargaining unit covered
by a collective-bargaining agreement between the Com-
pany and Local 834, when that contract proviued for
company seniority
2 Whether the Company violated Section 8(a)(1) and
(3) of the Act when it acquiesced in Local 834's demand
that it lower the seniority status of said six employees
and subsequently discharged said employees because
of their lowered seniority standing
Upon the entire record' of the case and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company is a Washington corporation engaged
in the State of Montana in discovery, mining , and produc-
tion of metals, chemicals, and fertilizers During the
12 months preceding the issuance of the complaint,
the Company's gross volume of business in Montana
exceeded $500,000 with the dollar volume of sales to
customers outside the State of Montana exceeding
$50,000
The complaint alleges, the answers of both the Compa-
ny and Local 834 admit, and I find that the Company
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 The Company filed a motion to correct the transcript of the record
In the absence of any objection the motion is granted as follows
P5 I 12 83 should be 8(a)(3) P 23 I 20 relative should
be relevant Coon should be Koon wherever it appears Her
sel should be Hartsell wherever it appears P 146 1 25 833
should be 8(a)(3)
II THE LABOR ORGANIZATIONS INVOLVED
639
The complaint, as amended, alleges, the answers
admit, and I find that Respondent Union and Phillipsburg
Mine and Millmen 's Union, Local 24 of the United
Steelworkers of America, AFL-CIO, herein called Local
24, are both labor organizations within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Operations of Respondent Company
Respondent Company is a multistate organization
operating an ammonia nitrate fertilizer manufacturing
plant in Nebraska, a lead and other base metals mine
in Missouri, electronics material fabrication plant and
warehousing facilities in Washington, and various phos-
phate mines in Montana In the past, the Company
operated two separate groups of mines in Montana
One group was collectively known as the Brock mine
and the other as the Douglas mine The Company has
a collective-bargaining agreement with Local 834 cover-
ing the Brock mine which includes "the Company's
mines near Garrison and Avon , Montana , namely the
Anderson, Brock, Graveley, Gimlet and Luke mines,
and any other operations of the Company in the vicinity
thereof " The Company's Douglas mine was cov-
ered by a collective-bargaining contract with Local 24
and included "the Company's Douglas Operations, near
Phillipsburg, Montana, and any other operations of the
Company in the vicinity thereof " The Douglas
operation consisted of both a mine and a mill As
of the date of the trial, the Company' s only remaining
operation in Montana was part of the Brock group
B The Transfer of the Six Employees to the Douglas
Mine
In the fall of 1964, the Luke mine in the Brock
group was closed About that time the six employees
named as discriminatees in the complaint were trans-
ferred from the Brock to the Douglas mine One of
these employees was Philip Struna who began work
for the Company at the Brock mine in 1950 and was
transferred to the Douglas mine on December 2, 1954
Struna was transferred by Les Koon, then mine superin-
tendent of the Brock mine , who told Struna that because
the Luke mine closed down the blacksmith from Luke
was coming to Brock and that Struna would have to
go to Douglas Struna answered that he did not want
to go and Koon replied that he had to go or else
Struna then went to see George Smilonich, who was
president of Local 834 and told him of the objection
to the transfer Smilonich told struna that he would
see what he could do about it The following day,
Smilonich told Struna that Struna had to go because
the Company could place the men where they wanted
to
Aubrey Kimble started work at the Luke mine in
1957 and was transferred to Douglas on November 29,
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964 Kimble was also told of his transfer by Les
Koon who told him that he could be better used in
Douglas and asked if he was interested in going there
Koon also told Kimble, who was a skip tender operator,
that there was no job open for skip tender operators
at Brock Creek or anywhere else but that there were
jobs with good pay at Douglas
Leo Palen started work at the Brock mine in 1962
and was transferred to Douglas on November 21, 1964
Koon told him that he was going to get bumped and
asked whether he would go to Douglas as a motorman
Palen consented to go
Lawrence Haptonstall started work at the Brock mine
in 1952 and was transferred to Douglas on November
1, 1964 Koon told him to go to Douglas
The remaining two transferees were Ora Bain, who
started work in 1957 at the Luke mine and was trans-
ferred to Douglas on November 29 1964, and Joseph
Simonich who started at the Brock mine in 1959 and
was transferred to Douglas on November 4, 1964
All six of the above-named employees, who will be
referred to herein as the six transferees, when they
were transferred to the Douglas mine received seniority
credit for their previous employment with the Company
for vacation, pension, health and welfare and holiday
purposes, but not for layoffs and job bidding purposes
For layoff and job bidding their seniority dated only
from the date of transfer to the Douglas mine The
six transferees received the two different types of seniori-
ty pursuant to the provisions of the collective-bargaining
contract between the Company and Local 24, which
provided that with regard to such matters as vacations
"Company service" was to apply and defined company
service as "the employee's total accumulated service
with the Company at any operation of the Company
whether broken or continuous " With regard to such
matters as layoff, the contract provided that company
seniority was to control and stated that "Company
seniority shall be established on the basis of the employ-
ee's continuous service with the Company at the Compa
ny's Douglas operation according to the records of the
Company "a
In the fall of 1968, it became known that Respondent
Company was going to close down the Douglas operation
At that time, Mine Superintendent Dave McSkibbings
informed Gordon Owsley, who was president of Local
24, that the mine would be closed The six transferees
asked Owsley to find out what would happen to them
Owsley had another conversation with McSkibbings in
which McSkibbings said that it was the Company's
view that the six transferees were going back to the
Brock operation with all their seniority for all purposes
This same theme was repeated in a number of conversa-
tions Aubrey Kimble was told by Foreman McOmber
3 The parties to this contract were Montana Phosphate Products
Company and Phillipsburg Mine and Miilmen s Union Local 24 of
International Union of Mine Mill and Smelter Workers It was stipulated
that Montana Phosphate Products Company is now named Cominco
American Incorporated and that in 1967 the International Union of
Mine Mill and Smeltr Workers merged with and became known as
the United Steelworkers of America AFL-CIO
that he wanted the men to stay on until everything
was salvaged and that there was no question that they
would be transferred to Brock Creek with all their
rights McOmbre told Struna that the Douglas shutdown
was nothing for him to worry about because he had
a job at Brock, that the six oldtimers would go back
to Brock the same way that they went over to Douglas
and that they would go back as old men 4
C The Return of the Six Transferees to the Brock Mine
As the cleaning up and closing down of the Douglas
operation neared completion, the six transferees were
once again transferred, this time back to Brock Simonich
returned to Brock on September 23, 1968, Palen on
November 16, 1968, and Struna, Bain, Kimble, and
Haptonstall on December 11, 1968
When Struna returned to Brock, he was put to work
in the mechanical department Another employee, Dennis
Lietzow, complained to George Smilonich, the president
of Local 834, that the job filled by Struna was one
that should have been open for bidding On December
12, 1968, Smilonich called Les Koon, who by that time
had become superintendent of the Brock operation, with
the complaint and Koon answered that they could work
Struna for a period of 20 days according to the contract
Smilonich filed a grievance over Struna filling the bid
job The grievance, which at the time was oral but
was later reduced to writing, is as follows
DEC 22, 1968
Nature of Grievance
The union contends that the company is in viola-
tion of Section G Article V of the Seniority clause
by placing an employee of the Doughlas [sic] opera-
tion into the Brock operation in the mechanical
department and not posting the job for mechanic
Filed December 23, 1968
Article V , Section (g) of the contract reads as
follows
The Company shall have the right to transfer
any person in its employ , who is not within the
definition of employee covered by this agreement,
to a job classification within the definition, and
to assign to him a job commensurate with his
qualifications and Company seniority , PROVIDED
that if such person was at one time classified as
an employee covered by this agreement , he shall
be assigned to a job not less favorable than the
Leo Palm testified that when he moved from Brock to Douglas
which was in 1964 he asked Mine Superintendent Les Koon what
would happen to his seniority and Koon answered that he would lose
his department seniority but not his pension and vacation seniority
From the context of this conversation and in view of the seniority
provisions in the contract between the Company and Local 24 I believe
that this entire conversation had reference to Palm s seniority at Douglas
rather than at Brock and therefore was not inconsistent with the findings
made above
COMINCO-AMERICAN, INC. 641
one he would have held had he not been transferred
from a job classification covered by this agreement.
On December 18, 1968, at a meeting between the
Company and Local 834, the grievance was discussed.
George Smilonich, the president of Local 834, headed
a union delegation and Robert K. Barcus, the manager
of operations for the Company, headed the company
group. At this meeting , Local 834 took the position
that the job given Struna was one which had to be
posted and that Struna should not have been placed
in that particular job because he should have been
counted as a new man. The Company took the position
that Struna could hold the job for 20 days without
bidding and that when it came to bidding rights Struna
had full company seniority which meant seniority dating
back to his date of employment with the Company
in 1950. To support its contention that Struna had full
company seniority, the Company relied on article V,
section (g), of the contract which is set forth in full
above. The Union contended that that section applied
only to employees who left the bargaining unit because
of promotion to a staff or salary job and then later
came back to the bargaining unit. Barcus was asked
to contact Personnel Manager Martin in Spokane who
had negotiated the contract.-
Another meeting was held on December 30, 1968,
with Barcus once again acting as spokesman for the
Company and Smilonich for Local 834. The Company
told Local 834 that Personnel Manager Martin's notes
did show that the intention of article V, section (g),
was to protect unit employees who were promoted to
staff and then returned to the unit. However, the Compa-
ny referred the Union to the general language in the
beginning of article V dealing with seniority in support
of its contention that Struna was entitled to company
seniority. Article V, section (a), reads: "Company senior-
ity shall be established on the basis of the employee's
continuous service with the Company according to the
records of the Company." In the preamble of the con-
tract, Cominco-American, Incorporated, is referred to
as "the Company" and the bargaining unit set forth
in the contract refers to "the Company' s mines near
Garrison and Avon, Montana, namely: The Anderson,
Brock, Graveley, Gimlet and Luke mines, and any other
operations of the Company in the vicinity thereof.. . .
Local 834 took the position that the Company' s interpre-
tation of • the seniority position was improper and that
under such an interpretation the Company would have
the right to bring persons employed by it into the bargain-
ing unit with full seniority even from its out-of-state
operations. Local 834 further took the position that
anyone leaving the bargaining unit for 90 days would
have to come back as a new man. At the same meeting,
Barcus told Local 834 that there would be a considerable
cutback of employees early in 1969 and this led to
a further discussion of seniority problems with Local
834 contending that the seniority provisions only covered
those employees who worked in the mines named in
the contract. There was no agreement reached at this
meeting . Les Koon, superintendent of the Brock opera-
tions, was also present at this meeting. He credibly
testified that one of the Local 834 spokesmen said that
the local people at Brock wouldn't stand for the Douglas
people taking their jobs and reminded the Company
of a past occasion when there had been contract difficul-
ties . Though the Local 834 spokesman did not mention
a strike, the contract difficulties he referred to had
resulted in a walkout and Koon got the impression
that if the Company persisted in its seniority position
for Struna and the others there was going to be a
strike. However. Barcus testified that there is a good
deal of heat as -well as give and take at grievance
meetings and as far as he was concerned he did not
consider the Local 834 statement to constitute a strike
threat.
On January 9, the Company posted a seniority list
at the Brock mine. On this list, the six transferees
were given their full company seniority based on their
original dates of hire with the Company. The list con-
tained the rankings of 208 employees and out of these
208 the 6 transferees had the following ranking: Struna
16, Haptonstall 22, Bain 54, Kimble 55, and Simonich
64. On January 10, Respondent Union filed the following
grievance with regard to this seniority list:
The Union states the Co. has violated our agree-
ment by placing employees of the Doughlas [sic]
operation into the Brock W. S. operation in improp-
er order on the seniority list Dated January 9,
1969.
They were not carried on the Brock W. S. seniori-
ty list while they were at the Doughlas [sic] opera-
tion. The Union feels that Doughlas [sic] employees
should be listed according to the starting date at
Brock W. S.
Dated January 10, 1969, by Geo. Smilonich.
On January 14, 1969, Respondent Company capitulat-
ed to the Union' s demand . On that date, the Company
sent Local 834 the following letter:
Mr. George Smilonich, President
Deer Lodge Miners' Union
Local 834
Deer Lodge, Montana 59722
January 14, 1969
Subject: Disposition of Grievance No. 8 Brock
Seniority Listing
Dear Mr. Smilonich:
The opposing views of Company and Union in
this grievance were the subject of extensive discus-
sion at a regular grievance meeting on December
18, 1968 , and a special meeting on December 30,
1968. Present and participating in these meetings
were:
For the Union: George Smilonich, Mike Grey,
Donald Merritt, Richard VonBergen, George
Kalafatich
For the Company: Robert Barcus, Leslie
Koon, John Hyvonen, Hartsell Young
Inasmuch as these meetings involved full discussion
of the issues, but did not lead to a settlement
of the difference, it is assumed that Steps 1 and
2 of the grievance procedure have been satisfied,
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Company hereby offers its response in
Step 3, as required by the Articles of Agreement.
The Union contends that the Company violated
the agreement when, on a seniority list posted
January 9, 1969, it assigned seniority positions
to former Douglas operation employees on
the basis of their continuous service with the
Company, according to the records of the
Company.
The Union feels that these employees should
be listed according to their starting date at
the Brock-Warm Springs operation.
The Company believes that the seniority list
in question is properly ordered in compliance
with Article V, Section (a) of the Articles
of Agreement . In its meetings with the Compa-
ny, nevertheless, the Union Grievance Com-
mittee was unanimous in its position.
As this is a matter of interest to the employees
and the Union, the Company hereby grants
the adjustment requested, and will issue an
amended seniority list responsive to the Union
request.
Yours very truly,
/s/R. K. Barcus
R. K. Barcus
Manager
Montana Phosphate Operations
On the same date, January 14, the Company posted
a new seniority list which gave the six transferees seniori-
ty credit only from the date on which each was trans-
ferred back to the Brock operation. On that list of
205 employees Simonich was 181 , Palin 201, Bain 202,
Haptonstall 203, Kimble 204, and Struna 205.
On January 17, the Company laid off 58 employees
as a consequence of a reduction in force. The order
of layoff was based on the seniority list which was
posted on January 14 and all six transferees were laid
off."
Soon after the layoff, Les Koon told Struna that
the Company was willing for them to come back to
work if Local 834 would let them. Koon also told
Kimble shortly after the reduction in seniority that the
Company had been talking and fighting with Local 834
and that it couldn't do any more.
At a regularly scheduled meeting of Local 834 on
January 28, Struna, Bain , Simonich, and Haptonstall
complained about the seniority that was given them.
It was pointed out that Koon had told them when
they left Brock to go to Douglas that they could come
back and retain their seniority. Some of the members
of Local 834 suggested another meeting with the Compa-
ny. One was scheduled for February 3." At the February
3 grievance meeting , all six transferees were present
together with a delegation from Local 834 headed by
Smilonich and a delegation from the Company headed
by Barcus. Local 834 did not change the position it
had taken in the December 18 or 30, 1968, meetings
or in its grievance of January 10. Koon was asked
if he had told the men that they could come back
to Brock with their seniority and Koon replied that
he hadn' t quite said that but that he had told them
that they would have a job when they came back.
The Union took the position that nothing was going
to change and nothing did.
By a memorandum of agreement dated July 11, 1969,
which by its terms was effective July 1, the Company
and Local 834 renewed their contract for 3 years with
certain changes. One of these changes was in article
V, section (g), which was changed to read:
Any person within the definition of "employee"
covered by this agreement who is transferred to
a position not covered by the agreement, shall
be credited with his full seniority until thirty (30)
days following transfer, but will not continue to
accrue seniority following the elapse of thirty (30)
days from the transfer until such time as he may
have occasion to return to a classification covered
by this agreement and resume the accumulation
of his seniority.
Smilonich credibly testified that article V,, section
(g), of the seniority provision has been discussed in
every negotiation and that Local 834 has consistently
been trying to remove it.7
D. Analysis and Conclusions
1. The contract provisions
As set forth above , the contract between the Company
and Local 834 which was in effect at the time that
the six transferees were reduced in seniority provided
that company seniority was to be established on the
basis of the employee's continuing service with the
Company. The term "employee " was defined in the
contract as a member of the bargaining unit , but the
company was defined to be "Cominco-American , Incor-
porated ," which included the entire Company whether
within or without Local 834's bargaining unit. It is
clear that the parties did not intend the word "Company"
to be limited to that part of Respondent Company which
had bargaining relations with Local 834 in the Brock
bargaining unit because that unit was set forth in terms
of only some of the operations of Respondent Company
which were : "the Company' s mines near Garrison and
Avon , Montana." As the contract defines Company
It was stipulated that Joseph Simonich was recalled at the Brock
mine on July 3 but declined the offer on July 13
" Leo Palin credibly testified that he tried to attend a meeting of
Local 834 on January 14 but he was not allowed in and an unidentified
person told him to leave because he was lust there to cause trouble
However, there is no showing that any responsible agent of Local
834 sanctioned or was even aware of this exclusion from the meeting
in any event, as is noted above, at the following meeting four of
the transferees did attend the Local 834 meeting and another session
with the Company was scheduled
' The above findings of fact are a composite of the testimony of
a number of witnesses, of stipulations , and of information contained
in exhibits which were received in evidence There were no substantial
contradictions in the testimony of the witnesses with regard to these
findings
COMINCO-AMERICAN, INC. 643
in terms of the overall operation of Respondent Company
and as it also provides that company seniority is to
be established, I find that the contract is clear and
unequivocal with regard to seniority. As of the date
that each of the six transferees were transferred back
to Brock, each became an "employee" within the bar-
gaining unit and each was entitled under the contract
to company seniority. Local 834 points out that such
a construction of the seniority provision would allow
the Company to transfer employees from out of state
and to their bargaining unit with seniority. However,
whether or not that is true Local 834's distaste for
the possible consequences of the contract clause is
not a sufficient basis for distorting the clear language
of that clause. It is no difficult matter to draft language
which would give a narrow base for seniority. Local
24 had a contract with the Company, which provided
for seniority based on service with the Company at
the Company's Douglas operation. Both Local 834 and
the Company are in a poor position to maintain that
the seniority provisions of the contract do not mean
what they say, particularly where the Company as late
as January 14 took the position in its letter to Local
834 that article V, section (a), required the transferees
to be given full company seniority.
A similar situation is present with regard to interpreta-
tion of article V, section (g), of the contract which,
as set forth in full above, provides that the Company
can transfer any person in its employ who is not an
employee covered by the agreement to a job classification
within the bargaining unit and to assign him a job
commensurate with his qualifications and company sen-
iority, with the provision that if such person were at
one time within the unit and was transferred out of
the unit, he will not get a less favorable job when
he is transferred back.
Local 834 takes the position that this clause applied
only to employees who leave the bargaining unit for
staff positions and later return to the bargaining unit.
The difficulty with that position is that it simply is
not supported by the language of the contract clause.
The clause is very clear. It gives the Company the
right to transfer any person in its employ back into
the bargaining unit with company seniority. Once again
Local 834's contention that such an interpretation would
reach too far does not take away from the clear meaning
of the words in the contract. Until December 30, Compa-
ny Manager of Operations Barcus interpreted the con-
tract in terms of what the contract actually said which
meant that the six transferees would have full company
seniority. After that he agreed wih Local 834 that the
intention of the parties when they negotiated the contract
was to provide for employees who took staff positions
and thereafter returned to the bargaining unit . However,
whether or not the parties meant what they said, what
they said is perfectly clear and unequivocal and it calls
for companywide seniority for the six transferees.
Local 834 demanded that the Company use departmen-
tal (in the sense of the Brock mine group) seniority
rather than company seniority. I have found that the
contract called for companywide seniority. When the
Company acquiesced to the Union's demand, the parties
to the contract in effect orally modified the existing
contract to provide for Brock rather than company
seniority. Though Local 834 spoke in terms of an "inter-
pretation" of the contract, I believe that the word "inter-
pretation" is misused, and what they did was change
the contract.
A recapitulation of the essential facts comes down
to this: the six transferees were transferred from Brock
to Douglas where, under the Douglas contract, they
had ony mine (Douglas) seniority. The six transferees
were later transferred back to Brock where, under the
Brock contract, they had and were given full company
seniority. The Company then acquiesced to a demand
from the Union and orally agreed to a change of the
contract to provide for mine (Brock) rather than company
seniority. As a result, the six transferees were lowered
in seniority and thereafter were discharged. It remains
to be considered whether such a contract change consti-
tutes a violation of the Act.
2. The duty of fair representation
Paragraph 10 of the complaint alleges that one of
the reasons that Local 834 demanded that the six transfer-
ees be reduced in seniority was that the transferees
were members of Local 24. There is no evidence in
the record to support that allegation . The mine (Brock)
seniority which Local 834 sought was coextensive with
seniority in the Local 834 bargaining unit, but that
in no way establishes that there was any discrimination
on the basis of union membership or nonmembership.
General Counsel does not argue in his brief that the
Company or Local 834 was discriminating against mem-
bers of Local 24. The only issue present here involves
the duty of fair representation and the ramifications
of that duty.
Where a statute gives a union the right to act as
the exclusive bargaining agent for employees; a concomi-
tant duty is created which requires the union to exercise
that right fairly, impartially and in good faith. The
United States Supreme Court has applied the duty of
fair representation concept to the Railway Labor Act,
Steele v. Louisville and Nashville Railroad Company,
323 U.S. 192 (1944), and Tunstall v. Brotherhood of
Locomotive Firemen and Enginemen, 323 U.S. 210
(1944); to civil suits involving union action on seniority,
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); and
to union action with regard to seniority lists in suits
under Section 301 of the Act. Humphrey v. Moore,
375 U.S. 335 (1964). The Board has held that the same
standard is applicable to unfair labor practice cases.
Miranda Fuel Company, Inc., 140 NLRB 181, 185,
186, enforcement denied 326 F.2d 172 (C.A. 2, 1963).
In the Miranda case, the Board found that a union
and an employer violated the Act when the union caused
the reduction of an employee's seniority status in a
manner that was not sanctioned by a collective contract.
The Board held:
. . . Section 7 thus gives employees the right to
be free from unfair or irrelevant or invidious treat-
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment by their exclusive bargaining agent in matters
affecting their employment This right of employees
is a statutory limitation on statutory bargaining
representatives, and we conclude that Section
8(b)(1)(A) of the Act accordingly prohibits labor
organizations, when acting in a statutory representa
tive capacity, from taking action against any
employee upon considerations or classifications
which are irrelevant, invidious, or unfair
In addition, the Board held that the union and the
company violated Section 8(b)(2) and 8(a)(3), respec-
tively, of the Act because the Union's failure to represent
the employee fairly had adversely affected his employ
ment status On that issue, the Board held
We further conclude that a statutory bargaining
representative and an employer also respectively
violate Section 8(b)(2) and 8(a)(3) when, for arbi-
trary or irrelevant reasons or upon the basis of
an unfair classification, the union attempts to cause
or does cause an employer to derogate the employ
ment status of an employee
Where a union causes an employer to discriminate
against an employee by reducing his employment status
and no legitimate employer or union purpose is served
thereby, union membership is unlawfully encouraged
It is a violation of Section 8(a)(1) and (3) of the Act
for an employer by such discrimination to encourage
union membership It is also a violation of Section
8(b)(2) of the Act for a union to cause an employer
to so discriminate
The Court of Appeals for the Second Circuit refused
to enforce the Board's Miranda decision However,
a majority of that Court did not rule on the question
of whether the breach of the duty of fair representation
was an unfair labor practice and the Board has continued
to apply the duty of fair representation doctrine In
Hughes Tool Company, 147 NLRB 1573, the Board
found that racial discrimination in the processing of
grievances violated Section 8(b)(1)(A), (2), and (3) of
the Act In Galveston Maritime Association, 148 NLRB
897, enfd 368 F 2d 1010 (C A 5, 1966), it held that
racially discriminatory work quotas imposed by the union
violated the same sections of the Act In Local Union
No 12, United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, 150 NLRB 312, enfd
368 F 2d 12 (C A 5, 1966), the Board found that a
union's failure to process grievances relating to racially
segregated plant facilities violated the Act and the Court
of Appeals for the Fifth Circuit enforcing the Board's
order agreed that a breach of the Union's duty of
fair representation did constitute an unfair labor practice
under the Act Racial discrimination with regard to
hiring halls has also been found to violate the Act
Cargo Handlers, Inc, 159 NLRB 321, Houston Maritime
Association, Inc , 168 NLRB 615 All these cases were
predicated on the union's duty of fair representation
The United States Supreme Court has not yet ruled
on the question of whether the duty of fair representation
can properly be applied to the unfair labor practice
sections of the Act In Vaca v Sipes, 386 U S 171
(1967), the Supreme Court was presented with a preemp-
tion question involving a State Court's jurisdiction over
a union 's allegedly arbitrary failure to process grievances
to arbitration The Court found that the State Court
did have concurrent jurisdiction but that the failure
to fairly represent had not been proved In reaching
that conclusion, the High Court traced the evolution
of the fair representation doctrine from the early cases
under the Railway Labor Act In treating this duty
of fair representation as an accepted part of the law,
the High Court referred to "the NLRB's tardy assump-
tion of jurisdiction in these cases " Though that
remark is susceptible of several interpretations, it
appears that the Miranda doctrine is in tune with the
High Court's thinking
The duty of fair representation is an established legal
principle, but application of this principle to the particular
facts of a case involve an interpretation of the word
"fair " There is no difficulty in such cases as Hughes
Tool Company, supra, Galveston Maritime Association,
supra, and the other cases where racial discrimination
motivated the Union's conduct Such discrimination is
overtly invidious, unfair, and unrelated to any lawful
union objective In the instant case, Local 834 endeav-
ored to have established a departmental (in the sense
of mine group) seniority rather than company seniority
There is nothing inherently right or wrong with either
type of seniority Ordinarily a company and a union
can agree on either type of seniority or no seniority
at all without violating the Act The problem in this
case is that agreement between the Company and Local
834 to use departmental seniority came at a time when
a contract between them was in force which provided
for company seniority, and the new agreement providing
for departmental seniority took away from the six trans-
ferees rights which had been created for them by the
original contract
In Ford Motor Co v Huffman, supra, the United
States Supreme Court held that a union did not violate
its duty of fair representation in its handling of a seniority
question where military veterans were given seniority
credit for prehire military service The Court said, "A
wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents,
subject always to complete good faith and honesty of
purpose in the exercise of its discretion "
In determining whether a union 's action is "unfair,"
"invidious" or "arbitrary," consideration must be given
to whether the union's action bears a reasonable relation
ship to its function as a bargaining agent Cf The
Dispatch Printing Company, 177 NLRB No 58
In the Miranda case the Board found that (140 NLRB
at 188 , 190) "Under pressure from some employees
in the unit, the Union sought to have [the discriminatee]
forfeit his contract seniority, first on one groundless
basis and finally on another basis which the circuit
court agrees to have been `in conflict with the agree
ment ' " The Board held that this reduction in seniority
did not serve a legitimate union purpose and violated
the duty of fair representation The reduction in seniority
followed the discriminatees taking an early leave of
absence and there was no provision in the contract
COMINCO-AMERICAN , INC. ' 645
for a loss of seniority on such grounds . The Board
went on to hold:
Furthermore , even if the Union 's insistence on
this interpretation can somehow be construed as
a demand for a modification of the agreement,
as the minority seems to imply-a modification
to which the employer was subsequently forced
to agree-it seems to us that the Union again hardly
met its obligation of fair dealing by insisting on
the retroactive application of the modified section
8, in circumstances which made it clear that [the
discriminate ] had no reason to anticipate any change
in his rights under the contract or to believe that,
if the contract changed , it would be applied retroac-
tively to deprive him of his seniority standing.
The sacrifice of [the discriminatee ] to placate the
other drivers does not, in our opinion , comport
with the requirements for fair dealing.
In spite of the many factual similarities between Miranda
and the instant case, it appears that in the Miranda
case the Board was concerned with what it considered
to be a vendetta against the particular employee rather
than with a serious question of seniority standards.
In Humphrey v. Moore, supra , the "duty of fair
representation " issue was raised in the context of a
merged seniority list which resulted when an employer
absorbed parts of another company. The other compa-
ny's employees were dovetailed into the employer's
seniority list . If the other company ' s employees had
been given the seniority of new employees , the employ-
ees in the employer ' s original bargaining unit would,
of course , have ended up much ahead in terms of
seniority . This relative reduction was held to be within
that wide range of reasonableness that was to be allowed
to statutory bargaining representatives . In Ford Motor
Co. v. Huffman, the seniority of certain employees
had been lowered by the granting to veterans of seniority
credit for prehire military service . This seniority credit
was put into effect by a supplementary agreement which,
it would appear , changed the contract to the detriment
of certain employees . As' it gave credit for past military
service , it had a retroactive effect . The United States
Supreme Court held that such conduct did not violate
the duty of fair representation.
many unforseeable contingencies in a collective -bargain-
ing relationship to justify making the words of the
contract the exclusive source of rights and duties."
As that Justice also pointed out: "If the collective
bargaining is to remain a flexible process , the power
to amend by agreement and the power to interpret
by agreement must be coequal."
In the instant case I have found that the Company
and Local 834 changed the contract to provide for
departmental (Brock mine group) seniority rather than
company seniority . I do not believe that the mere change
of a contract during the contract term in itself is a
violation of the Act even though some of the employees
within the bargaining unit benefit from the change and
others are hurt by it . There is nothing in the Act which
prohibits bargaining during the term of a contract or
modifying the contract at any point . By the nature
of any change in a seniority system the increase in
any employee ' s seniority standing is going to have to
be at the expense of another employee ' s seniority stand-
ing. Yet , seniority is a mandatory subject of bargaining.
It is a subject in which a union clearly has a legitimate
interest . I cannot find that Local 834's demand for
departmental rather than company seniority violated the
Act. There can be arguments about which type of seniori-
ty is preferable for a particular situation but that type
of argument is properly made at the bargaining table
rather than in an unfair labor practice case . A company
and a union have a terribly difficult decision to make
when there is a limited number of jobs available and
more employees on hand than are needed for those
jobs. Any seniority system that is selected will result
in some of the employees being injured . If such decisions
are based on the union membership of the employees,
a violation of the Act is clear . Similarly , the Act is
violated if the criteria used is based on racial discrimina-
tion or on other arbitrary standards that are not keyed
to any legitimate employer or union purpose. However,
the General Counsel has not established that any such
arbitrary criteria were used in the instant case where
Local 834 sought to have seniority keyed to service
at the Brock mine group which was the Local 834
bargaining unit . I therefore will recommend that the
complaint be dismissed in its entirety.
Upon the foregoing factual findings and conclusions,
I come to the following:
3. Conclusions
I have found that the contract in effect at the time
that the six transferees were reduced in seniority called
for company seniority . Under Section 8(d) of the Act,
the parties to a collective agreement are not required
to bargain about any modifications to the terms of an
outstanding contract where the modifications are to take
place within the period of the contract . However, in
order for a viable relationship to exist between a compa-
ny and a union , it is not unusual for the parties to
look upon a contract as a living document which is
subject to change'' whenever the parties feel that it is
necessary. As Justice Goldberg said in his concurring
opinion in Humphrey v. Moore, supra , "There are too
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 834 is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Company and Local 834 have not engaged
in the unfair labor practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclu-
sions, it is hereby recommended that the complaint
be dismissed.