Northwest Poultry and Dairy Products Co.

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are arranged by the marine superintendent . During the years 1952 and 1953, 24 persons (licensed and unlicensed) were transferred between vessels and 6 of these persons worked on the James E. Davidson . For bonus and vacation purposes, service on all vessels is counted , if such service is con- tinuous. The foregoing circumstances , including the unified deter- mination and control of labor policies , the integrated opera- tions, the common employment conditions , and the transfer of ship personnel and equipment clearly establish that the seven companies which comprise the Tomlinson Fleet are a single employer within the meaning of Section 2 (2) of the Act. These circumstances further demonstrate , in our opinion, that a unit confined to one ship of the Fleet , as requested by the Petitioner , is too limited in scope and that only a Fleet- wide unit is appropriate. As the Petitioner has neither requested , nor made an adequate showing of interest in, the more comprehensive unit, we shall dismiss the present petition. [The Board dismissed the petition.] NORTHWEST POULTRY AND DAIRY PRODUCTS COMPANY and CHRISTIAN STRICKWERDA EGG AND POULTRY WORKERS LOCAL NO. 231, AND SHIRLEY W. BARKER, ITS AGENT and C HRISTIAN STRICKWERDA. Cases Nos . 36-CA-353 and 36-CB-75. December 15, 1953 DECISION AND ORDER On June 30 , 1953, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above - entitled proceeding, finding that the Respondents had not engaged in and are not engaging in certain unfair labor practices and recommended that the complaint be dismissed , as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and each of the Respondents filed a reply brief in support of the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case , and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner. [The Board dismissed the complaint.] 107 NLRB No. 94. NORTHWEST POULTRY AND DAIRY PRODUCTS COMPANY 333 Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, is based upon charges duly filed by Christian Strickwerda, an individual, against Northwest Poultry and Dairy Products Company, herein called Re- spondent Company, and against Egg and Poultry Workers Local No 231, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, and its agent, Shirley W. Barker, herein called Respondent Union and Barker, respectively Pursuant to said charges, the General Counsel of the National Labor Relations Board issued a consoli- dated complaint, dated April 27, 1953, against Respondents, alleging that they had engaged in unfair labor practices, Respondent Company within the meaning of Section 8 (a) (1) and (3), and Respondent Union and Barker within the meaning of Section 8 (b) (2) and (1) (A) of the Act. Copies of the charges, the consolidated complaint, and notice of hearing herein were duly served upon all Respondents. Specifically, the complaint alleged that Respondent Company did refuse on or about Sep- tember 4, 1952, and at all times thereafter, to reemploy Strickwerda, a former employee, and that said refusal to reemploy Strickwerda was caused by Respondent Union and parker for reasons other than his nonpayment or tender of periodic dues. The answers of all Re- spondents denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Portland, Oregon, on June 4 and 5, 1953, before the undersigned Trial Examiner, Martin S. Bennett, duly designated by the Associate Chief Trial Examiner. All parties were represented by counsel who participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing all parties were afforded an opportunity to argue orally and to file briefs and/Qr proposed findings and conclusions. All parties presented oral argument and briefs have been received from Respondents.[ Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF RESPONDENT COMPANY Northwest Poultry and Dairy Products Company is an Oregon corporation, with its prin- cipal office at Portland, Oregon, which is engaged in the processing and distribution of poultry and dairy products It maintains 7 plants within the State of Oregon, the instant proceeding is concerned solely with the plant located at Portland During the 12-month period preceding the instant hearing, Respondent Company shipped processed products valued in excess of $25,000 to points outside the State of Oregon. I find that it is engaged in commerce within the meaning of the Act IL THE LABOR ORGANIZATION INVOLVED Egg and Poultry Workers Local No 231, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a labor organization admitting to membership employees of Respondent Company. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Respondents have at all times material herein enjoyed an amicable contractual relation- ship pursuant to contracts between Oregon Egg and Poultry Dealers Association , of which i The transcript of the testimony is hereby ordered corrected as follows: Page 140 Line 22 Change "Trial Examiner Bennett" Page 141 Line 2 to "Mr. Boyd" Page 185 Line 13 Insert "a case in" after "process" 337593 0 - 55 - 23 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Company is a member , and Respondent Union. Christian Strickwerda , the com- plainant , was, at the time of the alleged discrimination , a member in good standing of Respondent Union He was employed by Respondent Company in various laboring capacities from September 1949 until August 26 , 1952, when he was discharged. The General Counsel does not attack this discharge and concedes , in effect , that it was carried out for cause within the meaning of Section 10 (c) of the Act Moreover, C. W. Norton, president and general manager of Respondent Company, uncontrovertedly testified, the record demonstrates , and I find that Respondent Company was unwilling to rehire Strick- werda after his discharge and for nondiscriminatory cause Considerable evidence wa3 adduced demonstrating that Strickwerda' s tenure with Respondent Company had been an unpleasant one, both for Employer and employee He had long and unsuccessfully contended that he was improperly classified and was receiving a wage rate beneath that to which he was entitled under the collective - bargaining agreement between Respondents , in fact, as of the time of the hearing, Strickwerda still retained in his possession a substantial number of weekly paychecks which, despite his Employer' s urging , he refused to cash . These checks covered a period from December 1, 1951, through July 25, 1952, 2 later checks are still in the possession of Respondent Company, it appearing that Strickwerda refuses to pick them up It may be noted that the earlier group of approximately 36 checks was picked up by Strickwerda on or about August 20, 1952, only after repeated urging on the part of officials of Respondent Company and Respondent Union. His ultimate discharge on August 26 resulted , it appears , from Strickwerda's displeasure over a work assignment Strickwerda, after his discharge , endeavored repeatedly to return to Respondent Company's employ. It is in this connection and, specifically , his failure to obtain reinstatement on or about September 4, 1952, that the General Counsel contends Respondents have engaged in unfair labor practices Strickwerda , in his efforts to procure reinstatement , repeatedly and unsuccessfully contacted President Norton. Ile then , on or about September 3 or 4, enlisted the assistance of J. W. Henderson, international vice president of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, who was familiar with Strickwerda' s long-standing grievance against Respondent Company This grievance, it may be noted , and as the General Counsel stresses , had also resulted in strained relations between Strickwerda and Shirley Barker, business agent of Respondent Union and a Respondent herein. The record demon- strates that relations between Henderson and Barker were also strained , for reasons neither disclosed nor material herein.2 B. Sequence of events Henderson telephoned Norton on or about September 4 and asked him, as a personal favor, to reinstate Strickwerda. Norton reluctantly agreed to do so, it being stipulated between them that Strickwerda would return to his former position at the going rate of pay, would forego back pay: and , significantly , would retain his accrued seniority from 1949 3 This matter of cumulative seniority , as will appear , is the crux of the present proceeding. Norton notified Strickwerda to report for work on September 5. In the interim , Business Agent Barker of Respondent Union learned of the imminent rehiring of Strickwerda He became concerned that the agreement to restore Strickwerda's seniority would create grievances among the employees , for there had been several recent cases where discharged or self-terminated employees had been rehired without such an agreement to restore their prior seniority The record demonstrates that seniority was an important factor in the plant, inasmuch as the collective -bargaining agreement between Respondents granted a number of privileges based upon seniority ; its controlling weight in the matter of layoffs and rehirings 2 Strickwerda, it appears, is of the belief that he is a victim of persecution by Barker Steps that Barker proposed to take in support of Strickwerda 's long-standing grievance against Respondent Company apparently met with the disapproval of Strickwerda who favored procedure in a different manner; e g., whenBarker recommended a strike by members of Re- spondent Union against Respondent Company in support of Strickwerda 's grievance, the latter objected and desired the institution of proceedings before the Board Strickwerda refused to accept Barker's explanation , uncontroverted herein, that representatives of the General Counsel did not believe that the matter warranted the issuance of a complaint. 3The testimony of Norton and Henderson is in substantial agreement and is credited here as elsewhere NORTHWEST POULTRY AND DAIRY PRODUCTS COMPANY 335 was particularly significant in a seasonal industry marked by extreme fluctuations in the number of personnel Barker promptly telephoned Norton and asked if Norton contemplated the reinstatement of Strickwerda , Norton admitted that the matter was under consideration . Barker pointed out that if Strickwerda were reinstated with seniority he, Barker , would thereupon reopen earlier cases of a similar nature and seek identical treatment ; he mentioned two cases by name, one, a discharge , and the other a quit, where the employees had recently been rehired without cumulative seniority 4 I find that Barker's emphasis on this occasion was directed solely to the proposed granting of cumulative seniority to Strickwerda and not to preventing his reemployment as such in fact, Barker has attempted to place Strickwerda in other employment , has informed him that he has no objections to his employment as such with Respondent Company, and reaffirmed the latter position at the instant hearing Norton then became somewhat concerned over this turn of events , he contacted Henderson by telephone and notified hire of this new development . Henderson promptly released Norton from his proriuse to rehire Strickwerda and stated that it was a matter for handling by the local union On September 5 Strickwerda reported for work but was immediately notified by Norton of the latter' s talk with Henderson He informed Strickwerda , that his rehiring had been canceled as certain new matters had arisen and that Strickwerda should report to his local union he offered him 4 hours call-in pay pursuant to the current labor contract Strickwerda refused this and left 5 Ile has since repeatedly sought reemployment with Re- spondent Company which apparently chooses to adhere to its original decision, made in August, not to reemploy Strickwerda , as set forth above it is solely the refusal to reemploy Strickwerda in September , and thereafter , that the General Counsel attacks herein C. Conclusions As heretofore found, Respondent Company had discharged Strickwerda for cause on August 26, 1952, and was unwilling to rehire him Nevertheless , President Norton agreed , as a per- sonal favor to Vice-President Henderson of the Union, to reemploy Strickwerda , this oral agreement provided that Strickwerda would be restored to seniority as of the date of his original hiring in 1949 Then Norton was advised by Business Agent Barker of Respondent and Union that the rehiring of Strickwerda with cumulative seniority would result in griev- ances being pressed in several other cases where employees had previously been rehired or reinstated without such seniority Moreover , the record demonstrates that the rehiring of Strickwerda with cumulative seniority from 1949 would have adversely affected the seniority of a substantial number of employees This, as stated, would have played a direct part in the matter of retention credits mtheevent ofa layoff, as provided by the then collective- bargain- ing agreement Norton contacted Henderson who released him from his promise to rehire Strickwerda and the latter was duly advised of this change of mind on the part of Norton. As found, a preponderance of the evidence discloses that Barker ' s objection was not to the re- hiring of Strickwerda , as such, but rather to his rehiring with full seniority The present situation is therefore readily distinguishable from one where an employer unlawfully refuses to rehire an employee who has not obtained a clearance from a labor organization See, e g , N. L. R B. v Swinerton and Walberg Co., 202 F 2d 511 (C. A. 9), and Matson Navigation Co , 101 NLRB 1268 In the present case , the collective-bargaining representative was, in effect , calling attention to the seniority provisions of the collective- bargaining agreement and to potential problems thereunder . It is now established that a wide range of reasonableness , and particularly with respect to seniority , must be allowed a statu- tory bargaining representative in servicing the unit it represents FordMotorCo, v Huffman, 345 U. S. 330 , and Aeronautical Lodge v Campbell, 337 U. S. 521. In the instant case, there is presented solely a factual picture of an employer , unwilling to rehire a former employee and current union member for nondiscriminatory reasons, who 4The record identified these two as McCreary and Mandrey , respectively. The name of the former does not appear on the seniority list of employees and it would seem that some error in nomenclature has been made However his identity is not relevant to a disposition of the issues herein. 5 The above finding is based upon the credited testimony of Norton Strickwerda testified that Norton on this occasion attributed to Business Agent Barker a threat to strike the plant if Strickwerda were returned to work. Norton denied making such a statement and Barker credibly denied uttering a threat of this nature 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to rehire him with full seniority and then rescinded its decision upon learning that this rehiring with full seniority would in all probability create grievances in the plant. This does not, in my view, spell out an unlawful discrimination within the meaning of the Act to encourage union membership. The employer herein, it is found, decided , for a nondiscrimina- tory reason, to rescind its decision to rehire Strickwerda . True, the matter was brought to the attention of Respondent Company by the union representative , Barker , but it was not coupled with a request that the complainant not be hired. As a result, the failure to rehire Strickwerda did not constitute conduct violative of Section 8 (a) (3) and (1) of the Act. By the same token, in the absence of an unlawful discrimination, there can be no violation of Section 8 (b) (2) of the Act; as Respondent Union did not cause Respondent Company to discriminate against Strickwerda in violation of Section 8 (a) (3), or for reasons other than his failure to tender dues or initiation fees, there is no unlawful causation within the meaning of Section 8 (b) (2). Similarly, there has been no unlawful re- straint or coercion practiced by Respondent Union within the meaning of Section 8 (b) (1) (A) of the Act. See N. L. R B. v. Potlatch Forests, Inc., 189 F. 2d 82 (C. A. 9). While the record does disclose that Barker at a later date urged Strickwerda to withdraw from Respondent Union, this is insufficient to offset the preponderance of the evidence set forth above which discloses that Respondent Company refused to hire Strickwerda for reasons not discriminatory under the Act. I shall, accordingly, recommend that the complaint be dis- missed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent Company, Northwest Poultry and Dairy Products Company, affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent Union, Egg and Poultry Workers Local No. 231 , affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America , AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent Company, Northwest Poultry and Dairy Products Company, has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 4. Respondent Union, Egg and Poultry Workers Local No. 231, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America , AFL, and its agent, Shirley W. Barker, have not engaged in unfair labor practices within the meaning'of Section 8 (b) (2) and (1) (A) of the Act. [Recommendations omitted from publication.] AMERICAN COIN LOCK GO., INC. and LOCAL 32-B, BUILD- ING SERVICE EMPLOYEES INTERNATIONAL UNION, AFL. Case No. 2-CA-2330. December 15, 1953 DECISION AND ORDER On July 28 , 1953, Trial Examiner Thomas N. Kessel issued his Intermediate Report inthis case , finding that the Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter , theRespond- ent and the General Counsel filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has 107 NLRB No. 88.