Wanzer Dairy Co.

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an object thereof is to force or require the said employer or person to cease doing business with any other person engaged in commerce or in an industry affecting commerce. PLUMBERS AND STEAMFITTERS LOCAL 494, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Eastern Columbia building, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any question concerning this notice or compliance with its provisions. Wanzer Dairy Co. and Edwin Johnson Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Wanzer Dairy Co.) and Edwin Johnson Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Wanzer Dairy Co.) and Lawrence Gaertig. Cases Nos. 13-CA- 6099-1, 13-CB-1615-1, and 13-CB-1615-2. August 27, 1965 DECISION AND ORDER On May 28, 1965, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a brief in support, thereof; Respondent Union filed briefs in support of the Trial Examiner's Decision and an answering 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 connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recom- mendations of the Trial Examiner. ' It may be that Respondent Union harbored more animosity toward Johnson based on his intraunion activities than is found by the Trial Examiner . However, upon the entire record, including particularly the pertinent contract provisions and the evidence of past experience under the contract which appears to support the Union's application of it against Johnson , we are not persuaded that such animus was the motivation for the Union's Insistence that Johnson be removed as a route driver in favor of Anderson. 154 NLRB No. 66. WANZER DAIRY CO. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION 783 STATEMENT OF THE CASES A consolidated complaint by the General Counsel 1 alleges that Respondent Com- pany discriminated against Edwin Johnson in violation of Section 8(a)(3) and (1) of the Act, and that Respondent Union attempted to cause and caused Respondent Company to discriminate against Edwin Johnson, and attempted to cause Respondent Company to discriminate against Lawrence Gaertig, in violation of Section 8(b)(2) and (1) (A) of the Act. A hearing thereon was held before Trial Examiner Ben- jamin B. Lipton in Chicago, Illinois, on December 14 through 17, 1964. All parties were represented and participated in the hearing, and at the close, the Respondents argued orally on the record. Respondent Union's motion to dismiss is disposed of in accordance with the findings herein? Briefs filed by each of the parties have been duly considered. Upon the entire record in the cases and from my observation of the demeanor of the witnesses at the hearing, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Wanzer Dairy Co., herein called Respondent Company, or the Company, is engaged at its principal place of business in Chicago, Illinois, in the sale and distribu- tion of milk and related products. During the year 1963, in the course of its business operations, the Company sold and distributed dairy products valued in excess of $500,000, and purchased and received from points outside the State of Illinois, milk and other dairy products valued in excess of $500,000. It admitted, and I find, that Respondent Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, herein called Respondent Union or the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introductory facts and setting Respondent Company maintains in its operations certain designated wholesale and retail milk routes serviced by particular drivers who are represented under col- lective-bargaining contract by Respondent Union. The drivers are compensated by a fixed salary rate plus commission. Although, under the contract, the Company has the right to assign drivers to routes on the basis of personal qualification and compe- tency to serve the types of trade involved, the choice of drivers for particular routes are subject to posting and bidding procedures and is generally determined by a seniority system or practice. The controversy herein relates directly to the Company's decision for economic reasons, to consolidate seven wholesale milk routes, so that the regional area involved would be serviced by five instead of the theretofore seven drivers. The Company indicated that the two routes to be eliminated would be those of Carl Anderson and Wallace Lexow, after it obtained the advice and agreement of the Union's job steward, Michael Onesto. The latter relied upon a system of "area wide seniority," as later described herein. The Union's executive board opposed the Company's position and demanded that the routes of Edwin Johnson and Lawrence Gaertig be removed instead-assertedly based upon a practice of applying "company seniority" in like situations. Following strikes by the Union on February 14 and April 25, IIn Case No. 13-CA-6229-1, the charges were filed on February 14 and served on February 19, 1964; in Case No. 13-CB-1615-1, the original charges were filed on February 13 and served on February 17, 1964; and in Case No. 13-CB-1615-2, the charge was filed on February 14 and served on February 19, 1964. The consolidated complaint was issued on May 8, 1964. fl General Counsel's motion to correct transcript, joined in by counsels for Respond- ents, is hereby granted. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1964, the Company succumbed to the Union's demands and assigned Anderson to replace Johnson on a route which survived the consolidation program. However, the Union's request that Gaertig be eliminated rather than Lexow was not pursued after Lexow voluntarily sought and obtained a different route with the Company. B. Contentions of the parties and issues The complaint's allegations that the Union caused the Company to discriminate against Johnson and attempted to cause it to discriminate against Gaertig, are predicated on the same motive; i.e., reprisal against Johnson for engaging in activities "in support of dissident faction" of the Union. In his brief, the General Counsel describes "in broad terms" the positions that the Union caused the Company to remove Johnson from his wholesale milk delivery route because of Johnson's opposition to Thomas J. Haggerty, secretary-treasurer of the Union, and other members of the Union's executive board; and motivated by the same animus toward Johnson, the Union "did unlawfully attempt to have one Lawrence Gaertig removed from [his] route ... in an ineffective attempt to establish the appearance of a uniform seniority system," or as a cloak for its discriminatory action against Johnson. The theory as to Gaertig is that the Union's motive was arbitrary and invidious, without legitimate purpose, and in disregard of its statutory duty of fair representation, under the principle of the Miranda case.3 The Company's position, throughout the hearing and in its brief, was that it had technically engaged in the alleged discrimination against Johnson; it explains that it was forced to accede to the Union's demands by reason of the Union's strikes which otherwise would have been fatal to its business. The Union denies the asserted animus toward Johnson and relies, as the basis for its action, upon provisions in the contract and practices thereunder with respect to the Company as well as other dairy employers covered by the same contract within its local jurisdiction. C. The evidence concerning the alleged animus against Johnson 1. The election for steward in October 1959 Johnson has been a member of Respondent Union since the early 1930's. In October 1959, he was elected steward at the Company's Roseland division, defeating the incumbent, Carl Anderson. A few weeks after the election he was visited by Carmen Cesario, union trustee and business agent for the Roseland barn. Cesano informed Johnson that the executive board requested that he step down as steward. Johnson refused, insisting that he had been fairly elected. Thereafter Peter Hoban, then president of the Union, telephoned Johnson with the same demand, and was likewise refused. Johnson initially declined requests that he appear before the executive board, but finally consented and did attend such a meeting in December 1959.4 Hoban suggested that Johnson be removed if he did not step down to make way for Anderson, who was "a loyal member to the Executive Board;" and Johnson was told that he was "a lamb being led to the slaughter." Johnson said he wanted also to be a loyal member and to do a good job, but he declined to step down. Hoban finally told Johnson that he was "the steward to that barn and that is all [there is] to it." 5 The meeting ended with Johnson shaking hands with the entire executive board and wishing them a Merry Christmas. From the date of his election, Johnson in fact continuously served as steward without contest by the executive board until he was transferred, with others, to the Garfield branch of the Company in October 1963. The General Counsel stresses evidence that the Union did not send Johnson his formal certification as steward until a year after the election, and a month after Johnson gave support to Hoban in defeating a certain resolution. S Miranda Fuel Company, Inc., 140 NLRB 181, set aside 326 F. 2d 172 (C.A. 2). 4Executive board members present at the meeting were: Haggerty, Hoban, McNulty, Kruger, Feigner, Moline, and Cesario. Four of these individuals have since been re- placed on the executive board. 5 Testimony of Cesarlo, General Counsel's witness. WANZER DAIRY CO. 785 2. The Kensington election In February 1961, Johnson ran for president of the Kensington branch of Local 753,6 opposing the incumbent officers, which included Carl Anderson.? His slate was defeated by 40 votes. On grounds that ineligible members were permitted to vote,8 Johnson protested the election before the Union's executive board, without success, and then appealed to the Teamsters joint council. Without deciding the merits of the appeal, the joint council undertook to dissolve three of the outlying branches , including Kensington, because it found, inter alia, that these branches merely involved duplicate functions. While this action was being considered, the president of the joint council privately asked Johnson if closing down the Kensington branch would satisfy him in regard to his appeal, and Johnson agreed that it would. In June or July 1961, at a regular membership meeting of the Local, Johnson openly questioned the quoted costs of $3,500 given by Secretary-Treasurer Haggerty for closing down the three branches. Haggerty promised to furnish a breakdown of the $3,500 at the next meeting, but it was never forthcoming. 3. The letter to news media In September 1961, at a Union membership meeting, President Hoban suffered a heart attack and died during the course of an argument with Peter J. Farrell, a driver and steward at another company. As testified by Johnson and Cesario- Secretary-Treasurer Haggerty and Vice President Kruger reacted with remarks to the assembled members in effect that, "[This group] will get theirs, they destroyed him, they killed Hoban." In June 1962 , a letter over the names of eight members , including Farrell, Irving Sherman, as well as Edwin Johnson, was mailed to various news agencies questioning the propriety of a political contribution by Secretary-Treasurer Haggerty purportedly taken from Union funds. At a membership meeting in July 1962, Haggerty referred to this "poison letter," which he read to the members and named the eight signatories thereto. He said that "these men would be dealt with most severely These men- charges will be preferred and we will destroy them." At subsequent meetings, the letter was brought up again "many times." During the meetings in October and November 1963, Haggerty reiterated that "this group would be dealt with." 9 8 The "branch" was purely an administrative division of the Local setup in outlying areas where transportation was not adequate for members to attend regular union meet- ings. Officers of the "branch " had no constituted authority or power within the Union. 7 The General Counsel introduced over the printed names of the incumbents a cam- paign letter which was distributed during the election-asserting: "We are not in- terested in any disturbance or bad feeling toward our downtown Executive Board. We support them one hundred percent and will always do so." 8 Cesario testified that , in his capacity as an official at the election , two ineligible mem- bers came to his table to sign the voting register , and that when he so informed Union Vice President Kruger, working next to him , Kruger told him to keep his mouth shut B Irving Sherman testified that he was brought up on charges and fined with respect to his participation in sending the letter Johnson testified that he received notice from the Union charging the eight signers of the letter with violation of bylaws ( apparently for disclosing confidential union matters ). However, there is no evidence of the outcome of the charges against Johnson. At the hearing , the General Counsel requested that official notice be taken of the Trial Examiner's Decision in J Ziak d Sons, Inc, 152 NLRB 280, pertaining to charges filed with the Board concerning alleged threats made by the Union to signatories of the above-described letter to the news agencies The request was denied . West Point Man,- ufacturing Company, Wellington Mill Division, 142 NLRB 1161 . Since the close of the hearing herein , the Board has issued its decision in the Ziak case, supra, of which of- ficial notice is taken insofar as it is relevant. The Board dismissed the allegations that the Union threatened bodily or financial harm , or created an atmosphere hostile to the members who signed the letter to the news media. Included in the background evidence 'before the Board were the events at the meeting in September 1961 ensuing upon the collapse of Hoban. 206-446-66-vol. 154-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Selling orange juice and switching days off In September 1962, Business Agent Peter Smith told Johnson that he was instructed to file charges against him for violating union bylaws in selling orange juice and switching days off with other members. Smith indicated that Haggerty had sent him and that Haggerty said he would prefer the charges if Smith did not. After that conversation, Johnson, as steward, posted a notice that there would be no more orange juice sold on the truck, and so notified the Company. A few months later, he wrote Carl Anderson charging that he had violated the orange juice rule, and turned a copy of the letter over to Smith to act upon it. However, there was no action taken against Anderson. In October, Johnson filed charges against Smith, apparently for failure to enforce the rule in his area. In November Johnson and Smith met with William McNulty, the union president 10 As Johnson testified, McNulty had genuinely tried to effect a handshake between Johnson and Smith, stating that it was a personal issue between them, and sought to have each drop the charges against the other. Johnson refused the conciliation offer. He gave McNulty evidence purporting to show that other members were selling orange juice and switching days; but no charges were leveled against them 11 In April 1963, after a hearing, Johnson was found guilty on both counts and fined $35.12 i 5. Haggerty's reference to the "chief" About September or October 1963, posted on the bulletin board at the Roseland barn was a letter, otherwise immaterial, on which there was handpnnted in pencil by Haggerty the following: Thanks To All You Great Trade Unionists Who Attended Our Golf Outing. We Sure Missed the Chief-Or Did We? 13 Haggerty testified that, in referring to the "chief," he meant Business Agent Cesario. Haggerty's earlier testimony in another Board case 14 (admitted by stipulation and offered by General Counsel to show a prior inconsistent statement) was that he was referring to the steward; i.e., Johnson, as the "chief." Even assuming, arguendo, that the total evidence supports the finding contended, on the theory of an admission against interest made in the earlier Board case, that Haggerty was commenting about Johnson-I find the statement that-"We Sure Missed The Chief, Or Did We?"-entirely too ambiguous and obscure to be worthy of cognizable weight on the question of the Union's animus against Johnson. 6. Other union elections involving Johnson In November 1962, Johnson was reelected steward at the Roseland barn, again defeating Carl Anderson. In December 1963, he ran for recording secretary of the Union against Peter Smith and Anthony Christiano, with the latter emerging as victor. As to these elections, the General Counsel alleges no improprieties adverse to Johnson. D The alleged discriminations against Johnson and Gaertig In October 1963, the Company transferred from its Roseland branch to its Garfield branch the routes and drivers, as follows- No. 215, Carl Anderson; No. 214, L. Nelson; No. 209, Wallace Lexow; and No. 99, Edwin Johnson. Other wholesale milk routes at Garfield serving the same geographical area 15 were No. 151, Lawrence Gaertig. No 120, V. Hennell; and No. 96, T. Stoker-making a total of seven such routes. In December 1963 and January 1964, the Company, for concededly economic reason, decided to consolidate these seven routes, by redistributing the customer stops into five routes to be served by five drivers instead of seven. The two routes to be eliminated were Nos. 215 and 209 driven by Anderson and Lexow, respectively. to Successor to Peter Hoban n Respondent Union appears to argue that Johnson was the only steward who violated these union prohibitions 12 Business Agent Cesario, who testified for the General Counsel, voted with the unanimous executive board to sustain the charges against Johnson 13 Also on the same letter, in handprinting not identified as Haggerty's, were the words-"Not For Long"-next to the name of "Carmen Cesarlo, Trustee," appearing in the caption of the letter. 14 J. Zsak & Sons, Inc, supra. 15 There were approximately 100 routes at Garfield, consisting of about 38 wholesale and 62 retail routes. WANZER DAIRY CO. 787 Before the decision was effected, company officials 16 had discussions on the subject with Michael Onesto, union steward at Garfield. Onesto testified that he was initially informed by Ellery that routes Nos. 99 and 209 were going to be pulled. However, there is no indication or corroboration any- where else in the record that Johnson's route No. 99 was originally mentioned for removal. Johnson, who was early aware of the changes contemplated, testified to a conversation in January in which he was told by Onesto and Foreman Malone that routes Nos. 209 and 215 were coming off and that he "wouldn't be hurt." Onesto's testimony on this point is effectively controverted in the version given by Sold- wedel. The evidence reflects no logical reason or explanation for the Company making such an initial decision to remove route No. 99 and then switching to route No. 215. Soldwedel testified that a factor in choosing Nos. 215 and 209 was that these two routes were the lowest of the seven routes involved in productivity- Viewed in the entire context, I find that Soldwedel's testimony is the more accurate in this connection and that Onesto was confused or mistaken in stating that the Company originally selected Johnson's route No. 99 for remova1.17 Onesto's first response to the Company's notification that the two routes would be removed was to object that it could not be done because there was too much overtime in the barn,18 and that he would have to discuss the matter first with the business agent, Christiano. During this period, in January, Onesto was in regular communication with Christiano, and the latter wth the Company. Onesto indi- cated there was overtime in the barn when routes Nos. 215 and 209 were pulled on January 31, 1964. Whatever discussions took place regarding the overtime between higher union officials and the Company is not shown, but it does appear that it higher union officials and the Company is not shown, but it does appear that it was a matter of concern to the Union 19 and was ultimately resolved with the Company.20 The relative seniority standings of the drivers in question were admitted in evi- dence by agreement, quoted below: STIPULATION The following are the Wanzer wholesale routes involved in the redistribu- tion of stops herein, the dates of the original employment by the Company and the dates which said employees began working on the particular wholesale route, of the men who on January 1, 1964, were on these routes are as follows: Route No. Company seniority Began on particular route 96-------------- T. Stoker------------------------------------------- 1927 1927 215-------------- C Anderson ---------------------------------------- 1928 1957 214-------------- L. Nelson------------------------------------------- 1931 1953 209-------------- W Lexow------------------------------------------ 1936 1962 120-------------- V Hennel------------- ------------------------------ 1941 1945 151-------------- L. Gaertig------------------------- --------- --------- 1942 1942 99--------------- E Johnson----------------------------------------- 1947 211947 16 Gene Ellery, wholesale manager ; Frank Schroeder, Garfield manager ; John Malone, route foreman ; and Henry Soldwedel, president. 17 While the point is relevant and material, it is not of great significance in the final resolution of the issues. 18 Union President McNulty testified that the Union "won't allow a route to come out" If there is overtime in the barn. And Union Vice President Carl Feigner testified similarly of considerable experience with the Company regarding such overtime and indicated generally that the Union insisted the overtime be "cleaned up" and paid before the Union would consent to the removal of a route. Business Agent Cesario added that the Union was also concerned whether the driver who is given more customer stops as a result of a route elimination would be able to do the work. 19 For example, McNulty told Christiano that the routes of two junior men would be eliminated, provided there was no overtime in the barn. 20 Overtime was one of the stated reasons for the strike on February 14, 1904, and was also specifically included as part of the written agreement settling the strike on April 25, 1964, as further described infra. 21 It is evident that, of the seven, Johnson and Gaertig had the least tenure with the Company, while Anderson and Lexow were the last to begin on the particular wholesale route. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following are relevant provisions in the existing collective -bargaining con- tract: Article 3. Seniority in Layoffs. Departmental Seniority, as defined here- after, shall prevail when making lay-offs of employees because of the elimi- nation of positions or routes coming under the jurisdiction of this Agree- ment. The employee in the department with least service, experience foreman, in which said lay-off or elimination occurs shall be laid off first; provided that preference with respect to service shall not interfere with the election of competent drivers properly qualified to serve the types of trade involved .... Departmental classification will be as follows: Classifications: (a) Department No. 1-Milk sales delivery which includes route-riders, routemen, salesmen and special delivery men. This department shall be confined to the distribution branches of the Employer. Any man trans- ferred from one branch to another with a route or his group of routes shall retain his company seniority. Any man transferred at request of Em- ployer shall retain his company seniority if agreed upon by Union and Employer . . (b) Department No. 2-Transportation men, which includes tank, truck and van drivers. Seniority shall apply to all such men employed by the Employer . . (c) Consolidations and Mergers: Company seniority by departments shall govern lay-offs within the department affected and consolidations of branches owned by the Employer ... . (f) Route Bidding. One route pick in six years. If route is taken off or transferred, man can rebid in six-year period. Routes to be posted for seventy-two hours with a description of points and location . Two changes on each pick. Preference on route bidding shall not interfere with the selection to competent drivers properly qualified to handle the route. Com- pany seniority as now in contract. Route Rider's jobs to be subject to bid. Bidding on routes does not apply during the first year of employment 22 Before the Company puts into effect, on January 31, 1964, its decision to elimi- nate routes Nos. 215 and 209,23 various discussions took place involving Company representatives, Union officials, and particular employees concerned. The substance of the material testimony follows- Soldwedel testified that he and Schroeder informed Onesto of the decision to eliminate routes Nos. 215 and 209. Onesto agreed that the two drivers affected; i.e., Anderson and Lexow, were properly selected as they were the lowest in "area seniority." Under this concept, the "area" consists of the geographical region served by routes which are being consolidated by the redistribution of customer stops. Applied to the instant situation, the "area" comprised the seven wholesale routes specified in the "stipulation," recited above. And the date on which the driver first started on his route within this "area," regardless of his company senior- ity," was determinative of his "area seniority." 24 Onesto explained that he was taught by Peter Hoban, former union president, that the Union's practice was to apply "area seniority" with respect to route eliminations. However, he testified- "Of course, I have had no occasion to use it only in Johnson's case." Onesto described the same seniority theory to Johnson in assuring him that his route, No. 99, was secure, and to Anderson, telling the latter he did not know if his route, No. 215, was being taken off. In January 1964, Anderson separately spoke to Schroeder, Ellery, and Malone of the Company about the status of his route and was told by each of them that the Company was waiting for an interpretation from the Union. Anderson also called Business Agent Christiano about stops taken off his route and expressed fear that his route would be eliminated. 22 It is also noted that in article 2 of the contract, relating to the Company's hiring through the Union from a list provided by the Union, it is specified that-"The Em- ployer shall choose men from the eligible list in the order of their company seniority in the respective departments . . . 231t appears that some of the customers stops in the seven affected routes were re- distributed before January 31, 1964. 2 Company seniority was based upon the initial date of employment with the Company. WANZER DAIRY CO. 789 In the morning of January 28, Onesto notified Christiano by telephone that the Company was going to remove two routes and that he did not know which routes or men would be selected. Christiano proceeded to the Garfield barn that after- noon In the makeup room, he found seated at a table 10 or 12 men engaged in arguing the question, including Onesto, company officials, Johnson and Anderson. Christiano asked for and was given the information as to which routes and drivers were involved. He then went to the bulletin board in the room and obtained from the posted listing the starting dates with the Company of the seven men affected, walked back to the table, and circled routes Nos. 99 and 151 and the names of Johnson and Gaertig, as having the least "company seniority." A heated dispute ensued with Johnson and Onesto, the latter maintaining that "area seniority" should govern. Christiano said he would go back to the union headquarters tomorrow and then return with a decision. The next day, Christiano took the matter up with members of the executive board. They decided, in agreement with Christiano, that "company seniority" was controlling, and instructed Christiano to convey the ruling to the appropriate persons. Christiano returned to Garfield that afternoon and delivered the decision of the Union. Onesto and Johnson continued to object, while Christiano insisted-"we are going by the book, it is in the contract." Com- pany President Soldwedel later that day told Christiano that Johnson threatened to "sue" the Company; i.e., file charges with the Board, if his route were removed.25 Soldwedel asked what would happen if he did not conform to the Union's position, and Christiano replied, "Well, then, we will have to take other angles." On Friday, January 31, as originally decided, the routes, Nos. 215 and 209, of Anderson and Lexow were eliminated, and the customer stops divided among the remaining five routes in the area.26 On February 3 or 4, the union executive board met and unanimously ruled that the two men to be removed by the route elimination would have to be junior in "company seniority." On February 4, Union President McNulty telephoned Soldwedel, informed him of the executive board meeting, insisted that Anderson was to have his route, and sought to convince him that the union rule was the proper one. Later that day, Christiano told Soldwedel that Anderson would be put "back on the route tomorrow morning or else." With McNulty and Christiano, Soldwedel spoke of being sued by Johnson. However, Soldwedel decided at this point to assign Anderson to route No. 99, taking Johnson off. Thereafter, for 7 or 8 days, Johnson was home ill. On February 12, Soldwedel reconsidered and put Johnson back on the route because, as he testified, he felt that the Company was right in its original decision to eliminate routes Nos. 215 and 209, and that the Company "could be liable for the wrong action." Anderson then protested to Soldwedel and argued that, on the basis of his senior- ity under the contract, he should not be eliminated. Soldwedel, asserting the Com- pany's right to remove routes and Anderson's recourse before the Labor Board, was unmoved. Anderson raised the matter before a meeting of the union executive board, which reaffirmed its prior ruling that Anderson was entitled to the route. On February 14, at 2 a.m., the Union caused a work stoppage at Garfield. Mem- bers of the executive board appeared at the barn, including McNulty, Christiano, and Haggerty.27 Haggerty related various demands of the Union,28 including spe- cifically that "Anderson and Lexow be put back on their routes and the two youngest men [of the seven drivers concerned] to bid on all other routes." The Company immediately agreed to the Union's demands and work was thereupon resumed. Following the strike, Gaertig continued to serve his route, No. 151, without interruption, and the Union made no further attempts to alter the situation. The question was apparently resolved by voluntary action on Lexow's part, with the 25 Soldwedel repeated such statement in conversations on the subject at different times with various union representatives and employees 20 As reconstituted, Johnson's route consisted of nine stops from route No 215 ; three stops from route No 209 ; and two original stops of route No 99. There were variations in the number of "points ," or units of milk delivered for each stop , and the two stops which continued on route No 99 were shown to be relatively very large in "points." 27 Soldwedel was told by McNulty to wait for Secretary -Treasurer Haggerty as "the spokesman," and Haggerty showed up somewhat later. McNulty testified that Haggerty generally acted as spokesman for the Union "on decisions of the executive board and in negotiations." 21 E.g.-"that P. Holahan be given his route back , plus all backpay , that Suski be brought back and returned to Wanzer ." These demands were quoted in the record from Christlano's affidavit given to a Board agent . Christlano also testified that the existence of overtime in the barn was stated as one of the reasons for the February 14 strike. A number of the same demands are reflected in the settlement agreement at the April 25 strike, infra. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement of the Union and the Company. Lexow indicated his desire for a school route which had been opened for bidding.29 One other driver who initially bid on the school route withdrew his bid. The Union executive board then considered the Lexow-Gaertig problem and agreed, in the circumstances, that Lexow could have the school route. The matter was discussed between the Union and the Company, and it was decided that Lexow would be put on the school route 30 until the Garfield consolidation dispute was cleared up. From February 14 until the first week in April 1964, when Johnson left on his vacation, surviving route No. 99 was driven jointly by Anderson and Johnson. However, Anderson received the commissions, not Johnson. Within the week after February 14, Anderson complained to Christiano about Johnson riding route No. 99 with him, and also demanded to have the route bear his number 215 because the route contained so many of his original customer stops. He particularly pressed his objection after Johnson left on vacation in April. Christiano agreed with Ander- son, and pursued the question with Soldwedel and then with the union executive board. At 2 a.m. on April 25, the Union again struck. Haggerty presented the Union's demands. The strike was settled the same morning upon the signing of the follow- ing agreement, written out by Haggerty: April 25-1964 The Wanzer Dairy with Henry Soldwedel their President agrees to the following 1. That Paul Halligan [Holahan] who previously was to be put back on his job as Route Rider, the same immediately back on his job as Route Rider, the same immediately to be put into effect and his backpay on Route Riders Job to be paid. 2. That Carl Anderson to get the exclusive right to his route on the basis of Seniority as decided by our Executive Board and that was previously agreed to by you and our officers. 3. All overtime due April 23rd will be paid by next Thursday April 30th. 4. That the two routes #482 and Route #37 be put back because they were taken off when our Union Representative asked to be given an opportuinty to check into same. 5. That immediate action shall be taken to restore our Transportation mem- bers jobs. 6. The Company shall complete reports Daily. 7. The Company shall apply along with the Union its responsibility of see- ing that all Members punch their Time Cards Daily. 8. This is a full and a complete settlement of all claims and both sides agree there will be no Court or other action on same. WANZER DAIRY CO. (S) Henry A. Soldwedel MILK DRIVERS UNION (S) Thomas J. Haggerty Witness (S) William McNulty Thereafter, Anderson exclusively drove the route, which, however, remained designated as route No. 99. When Johnson returned from his vacation in May, he was told by the Company that the Union insisted that he not be put back on that route. Johnson was assigned other work, including driving of vacation routes, and since September 1964, was employed as store solicitor31 E. Seniority practices regarding route eliminations The record is replete with evidence concerning the Union's practice at the Com- pany, as well as at other dairy companies in the area covered by the identical pro- visions of the collective-bargaining agreement. In virtually all instances, "company seniority" was applied, in the manner here espoused by the Union. With the excep- 29For a few days, Lexow rode route No. 151 with Gaertig. Christiano testified that Lexow Informed him that he could not handle the work on this route, No 151. 80 Soldwedel testified that Lexow was given the school route on the basis of his seniority. 8' Under the wage scale of the contract , a store solicitor receives $3 30 an hour; a commission wholesale routeman , $3.17 an hour ; and a noncommission wholesale route- man, $3.65 an hour. It was not shown whether Johnson was permitted to or did bid on "all other routes," as agreed in the strike settlement on February 14, 1964. WANZER DAIRY CO. 791 Lion of Union Steward Onesto, the testimony generally by union witnesses was that they never heard of "area seniority" until the present controversy.32 As regards this Company, a series of correspondence from Bertel Carlson, man- ager of the Argyle branch, to William Agnes, union steward of the branch, with copies to Company President Soldwedel and Union Vice President Feigner, show eight instances of consolidation of retail routes in 1963.1-3 Also, letters from Carlson to Soldwedel show two additional instances. Supported by the testimony of all the aforementioned individuals, the evidence unquestionably establishes that the drivers with the most recent starting dates of employment with the Company; i.e., those having the least "company seniority," were relieved from the routes eliminated. "Area seniority" played no part in the determinations. In one of the instances, Agnes himself, although a steward like Johnson, was removed from his route on this basis.34 Numerous instances reflecting the experience at several other dairy companies,35 adduced by specific testimony, require no detailed discussion. Essentially the same results were evidenced as reflected in the Company's practices, described above.36 General Counsel's witnesses Cesario and Onesto corroborated the actual use and practice of "company seniority" for the purposes in question. Concerning the "area seniority" test, as such, no showing was made that it was ever actually applied in practice. However, the General Counsel appears to stress one occasion at the Company's Roseland branch in June 1960 where "company seniority" was not controlling in the removal of a wholesale route held by Lexow. Johnson, then a steward at Rose- land, in fact had less "company seniority" than Lexow. These were the circum- stances: The Company lost its school accounts on Lexow's route and, for this rea- son, decided to eliminate that route. The Union struck to prevent the route removal because, as Cesario testified, there was overtime in the barn and the Company had acted without completing discussion of the matter with the Union. As a result ,of the strike, Lexow was kept on for about a week and then, with the Union' s agree- ment after negotiations, was taken off the route 37 Among other things, it was agreed that Lexow would go back on the same route after Labor Day if the Com- pany was able to recover the school business, as it anticipated. In the disposition regarding the Lexow route at Roseland, there is no indication that any consideration was given to the described system of "area seniority." The seniority basis for the action, if any, was not revealed in the record. No consolidation program was involved, as in the situation at bar. Apparently, this was a special solution affecting Lexow's particular route and was worked out in consultation with the Union. In any event, this incident in 1960 would not operate to alter the clearly evidenced pattern of applying "company seniority" in regard to route eliminations. F. Findings and conclusions The General Counsel's case is predicated principally upon the existence of a vindictive motive of the Union toward Johnson for his asserted "dissident" activities. In this premise, the complaint fails, clearly in my opinion, for want of required proof. Stretched out in fragments over a considerable period of time, the evidence adduced is at best only suggestive and lacks sufficient directness of intent by the Union to take this manner of reprisal against Johnson in the route eliminations of 1964. On the element of animus, the bulk of evidence relied upon by the General Coun- sel is in the nature of background, antedating the 6-month limitation period of Sec- tion 10(b) of the Act. 38 The incident ielating to Johnson's election as steward in 32 For example, General Counsel's witness, Carmen Cesario stated that in his experience as business agent and member of the executive board for some 6 years he knew only of "company seniority." as For seniority purposes, no distinction is alleged as between retail and wholesale routes, and none is provided under article 3(a) of the contract, supra "None of the drivers of the routes eliminated was actually laid off: they bumped the junior man in the barn, were put on vacation routes or other job, or the eliminated route was already "open" because the previous driver had left the company's employ. as E.g., Bowman Dairy ; Christiano Bros. Milk Distributors ; Capital Dairy ; Kraml Dairy ; and Borden Dairy. as However, layoffs of the drivers affected did take place at other dairy companies. 37 According to Business Agent Cesario, Lexow replaced the junior man in the barn on a retail route 38 The background evidence was offered and admitted on the basis that it would "throw light on the true character of matters occurring within the limitation period." E.g., Local Lodge No. 1424, International Association of Machinists, AFL-CIO v. N.L.R.B., 362 U.S. 411, 416. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 1959 is not only remote, but in substance furnishes negligible assistance to the General Counsel on the point. It suffices that the controversy ended amicably with no indication of residual antagonism by the Union toward Johnson. Even assuming irregularities in the Kensington election of February 1961-a question not presented or properly to be determined here-the inference cannot be drawn that the Union was deliberately seeking to manipulate the election against Johnson's slate, that Johnson was acting as a "dissident," or that the Union evinced any resentment against Johnson for challenging the election. As one of the eight signers of the letter to the news agencies in June 1962, Johnson clearly incurred the dis- pleasure of Secretary-Treasurer Haggerty. As already noted, the Board in the Ziak case, supra, dismissed allegations against the Union of any unlawful conduct in connection with this same affair and its background. Nevertheless, a general animus short of coercion is implied in the remarks, e.g., that "these men would be dealt with," that "charges will be preferred," and that "we will destroy them," However, these remarks, which are ambiguous, cannot reasonably by found in the whole context as extending beyond the intraunion proceedings which were brought against the men, or as providing a proximate link with the Union's action relating to the instant route eliminations The selling of orange juice and switching of days off, for which Johnson was brought up on charges and found guilty, reflects no significant harboring of animosity toward Johnson by the Union, or by Haggerty. That others were not prosecuted within the Union, though information was made available that they too were, allegedly, engaging in the same prohibited conduct,39 does not prove disparate treatment of Johnson rooted in hostility. On the part of the Union, as such, a more benign attitude toward the controversy would appear from the "genuine" effort of the president, McNulty, to effect a handshake between Johnson and Smith and have each drop the charges against the other-which pro- posal was refused by Johnson. The various incidents adverted to by the General Counsel must also be considered in conjunction with the later election campaigns of Johnson, most recently in December 1963, in which there is absent any attempt by the Union to prejudice Johnson. No mention or consideration of these past inci- dents, as described, or of personal antipathy toward Johnson, was revealed in any of the discussions surrounding the route eliminations in question. To be sure, there are indications of factionalism within the Union involving Johnson, Anderson, Hag- gerty, and others. This cannot be regarded as abnormal in the internal functioning of the Union, especially at times of election contests for union office. In no instance has Johnson been shown to challenge the policies or administration of the union executive board as would mark him as a "dissident" sufficient reasonably to imply a motive by the Union to take reprisal against him. Turning to the Union's actual conduct regarding the route eliminations in 1964, a question remains whether its actions were inherently discriminatory as to sustain the alleged violation on the theory of the Radio Officers case.40 The collective-bargaining contract does not spell out literally the situation con- fronting the parties insofar as the route changes instituted were confined to the "area" affected.41 But article 3 of the contract can be read fairly to embrace the problem in its provisions that "departmental seniority" shall prevail in "layoffs" occasioned by "elimination of positions or routes." 42 Although the contract, under 29 Presumably, Johnson himself could have preferred the charges against Anderson and others. 40 The Radio Officers' Union of the Commercial Telegraphers Union , AFL (A. II. Bull Steamship Company) v. N.L.R.B, 347 U.S. IT, 42, which stands for the proposi- tion, in brief, that specific proof of intent is unnecessary in certain eases where the con- duct "inherently encourages or discourages union membership" for purposes of Section 8(b) (2) and 8 (a) (3) of the Act . See also Local 357, International Brotherhood of Team- sters, etc. (Los Angeles-Seattle Motor Express ) Y. N.L.R.B., 365 U S. 667, 674, and N.L.R.B. v. Brown Food Store, 375 U.S. 962. u However, it was the regular practice of limiting seniority questions to drivers in the area affected by the route changes No one has contended here for a broader effect. 42 Whether actual layoffs take place, after bumping and bidding procedures are utilized, apparently cannot always be determined at the outset. It is a reasonable construction that the parties intended to have a uniform seniority system in regard to route eliminations. In Johnson's case, as it developed, he suffered no layoff, although it is not shown whether he exercised bidding or bumping rights . Soldwedel testified that the initial designees for elimination, Anderson and Lexow , could have bid on open routes. And in the strike settlement on February 14, 1964, part of the agreement was that the "two youngest men" in company seniority ; I e., Johnson and Gaertig, would "bid on all of the routes." WANZER DAIRY CO. 793 article 3 (a) and (b), defines department I (retail and wholesale delivery) and department 2 (bulk transportation )-coverage necessary generally for other employers subject to the same uniform contract-the record makes clear that the operations of Respondent Company were effectively confined to the description in department 1. Therefore , in its application to the Company , departmental senior- ity was in effect the equivalent of "company seniority." 43 Furthermore, the con- tract elsewhere contains several references to "company seniority " as a controlling test 44 Conversely , the contract contains no basis for a system of "area seniority," as described supra, now argued on the Company 's behalf.45 In any case, under no conceivable construction is the contract in conflict with the Union's position, which is well confirmed and supported in the substantial showing of the practices under the contract of applying "company seniority" to the type of situation involved.46 It is not necessary for the Union's defense that its interpretation of the contract be correct 47 It is sufficient that the the Union did not, as I find, act unreasonbly, arbitrarily, unfairly, in violation of contract , or without legitimate purpose,48 in seeking Anderson's replacement of Johnson on the surviving route No. 99 .49 Engag- ing in a strike to compel the Company to accept its seniority demands was a proper prerogative of the Union.50 As already found, the complaint lacks proof of specific intent by the Union to cause the Company unlawfully to discriminate against Johnson . I find the further ground of the General Counsel, based upon Radio Officers, that the Union's conduct in causing Johnson's removal was inherently discriminatory likewise fails of sup- port in the record 51 On the theory presented , Gaertig's case falls with that of Johnson. The Company's admission at the hearing 52 of the complaint 's allegations cannot thereby visit the violation upon the Union , in view of the actual litigation "Supported in the testimony of General Counsel's witnesses Johnson, Cesario, and Onesto , and not contended otherwise. 44 Article 3 ( f), for example, provides for "Route Bidding" on the basis of "Company seniority as now in contract " ; this clause would conflict with the concept of "area seniority." And see Williston on Contracts, § 618 (3d ed.)-that "the writing will be read as a whole and every part will be interpreted with reference to the whole." 46 The General Counsel does not take the position that any system of seniority is correct under the contract , but argues that the Union's procedure here was merely a "union rule," unprecedented and discriminatorily applied in this situation 49 The Company does not contend that its selection of the two routes and drivers to be eliminated was based upon the competency of the drivers to serve the types of trade involved . Nor was the Union estopped from overriding steward Onesto 's early advice to the Company that "area seniority " was applicable . Brewery and Soft Drink Workers, Local Union No. 163 ( Stegmaier Brewing Company), 134 NLRB 99 . Indeed , the Company, before and after the route eliminations on January 31, 1964, was aware of the contrary view of higher union authority , with which , however, it chose to disagree. 47 Cf. New York Typographical Union Number Six, International Typographical Union, AFL-CIO (The New York Times Company, etc.), 144 NLRB 1555, enfd 336 F. 2d 115 (C.A. 2). 48 id ; Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Planet Corporation), 144 NLRB 798; Armored 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 Com- pany, etc.), 145 NLRB 1657; cf. Miranda Fuel Company, Inc., 140 NLRB 181, set aside 326 F. 2d 172 (CA. 2). 49 As it appears, the Company effected a major revision of Johnson's original route No. 99 by redistributing customer stops, most of which came from Anderson 's former route No. 215. co E g., Kramer Brothers Freight Lines, Inc., 130 NLRB 36; Central States Petroleum Union, Local 115, Standard Oil Company, 127 NLRB 223. m An affirmative defense, which the Union asserted in its answer to the complaint but was permitted to withdraw at the hearing, alleges that the Company discriminated in favor of Johnson and Gaertig, "because of their activities against the officers of the Union." Contrary to arguments of the General Counsel , I do not find , in disregard of the full record made on the issues , that the Union thereby admitted that it sought John- son's removal for this very reason, amounting to a virtual concession of the allegations in the complaint. r2 It had entered denials in its answer. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reflecting that the Union did not cause the Company to engage in unlawful dis- crimination. Notwithstanding its position , I find no violation was committed by the Company. Accordingly, the entire complaint will be dismissed. Upon the foregoing findings of fact, and upon the entire record in the cases, I make the following: CONCLUSIONS OF LAW 1. Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of the Act. 3. The allegations of the complaint that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2 ) of the Act have not been supported by substantial evidence. 4. The allegations of the complaint that Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act have not been supported by substantial evidence. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. Garrison Coal Co., Inc. and Carl Roy Skeens and Donald Wil- liams and Local No. 50, Reform Mine Workers Union, Party to the Contract. Case No. 9-CA-3391. August 27, 1965 DECISION AND ORDER On May 28, 1965, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in and was not engaging in certain unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a support- ing brief and the Respondent filed an answering brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at 'the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' 'We find no merit in the General Counsel's contention that the Trial Examiner's credibility findings should be rejected , as the clear preponderance of all the relevant evidence does not convince us that the credibility findings are erroneous . Standard Drywall Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 362 ( C.A. 3). 154 NLRB No. 65.