Beatrice Foods Co.

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Adams Corporation, Korn Kurls Division , a Division of Beatrice Foods Company and Lillian Z. Pittner, an Individual General Drivers, Dairy Employees & Helpers Local Union No. 579 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and Lillian Z. Pittner, an Individual. Cases 30-CA-583 and 30-CB-141 JUNE 27, 1968 DECISION AND ORDER By MEMBERS BROWN , JENKINS, AND ZAGORIA On December 12, 1967, Trial Examiner John P. von Rohr issued his Decision in the above -entitled proceeding , finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed excep- tions to the Trial Examiner's Decision and support- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent Company, Adams Cor- poration, Korn Kurls Division, a Division of Bea- trice Foods Company, Beloit, Wisconsin, its officers, agents, successors, and assigns, and the Respondent Union, General Drivers, Dairy Em- ployees & Helpers Local Union No. 579 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, ' One version shows this as "floorlady." its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recom- mended Order. MEMBER ZAGORIA, dissenting: The Charging Party, Lillian Z. Pittner, has been employed by Respondent Employer since June 11, 1948. She worked on the production line until Oc- tober 13, 1958, when she was assigned plant cleri- cal work. Although she was not a supervisor within the meaning of the Act, she was referred to as a "forelady"' and worked in the same office as the plant foreman. Pittner did not participate in the Respondent Union's organizational activitiesin 1965 and, because she was told that as a forelady she was in- eligible, Pittner did not vote in the election which led to the Union's certification on December 17, 1965, as collective-bargaining representative of all production and maintenance employees. Under state law, a union-shop referendum was held on February 15, 1966, at which time Pittner acted as an observer for the Employer. The Union won the referendum and executed a collective-bargaining agreement with the Employer on June 6, 1966. The agreement contained a 30-day union-shop clause. It also provided for layoff on the basis of reverse seniority and specified that those transferring back into the unit from other work classifications would lose their seniority except when retention of seniority upon return within a given period was agreed to between the Employer and the Union. Pittner did not initially become a member of the Union under the union-security clause and was not asked to do so. Over 5 months later, on November 18, 1966, Pittner's clerical job was eliminated and she returned to production line work. She became a union member in January 1967. After her transfer back to the production line, Pittner raised the question of her seniority status and the matter was discussed by the Employer and the Union. In March 1967, Pittner complained to the Union's In- ternational office about the lack of action regarding her seniority. Thereafter, she met with both a union and employer representative and was questioned about her concerns respecting seniority. The Union and Employer later resolved to set Pittner's seniori- ty date at November 1, 1966, for layoff purposes and at June 11, 1948, for vacation purposes. Pittner also continued to earn her former wage rate, which was higher than that of the other production em- ployees in her department. She thereafter charged Respondents with violation of Section 8(a)(3) and ( 1) and 8 (b)(1)(A) and (2) of the Act. 172 NLRB No. 56 ADAMS CORP., KORN KURLS DIVISION The Trial Examiner's holding of violation, which the majority here adopts, is based on the finding that under the collective-bargaining agreement, Pittner, as a member of the bargaining unit at all times in question , had a contractual right to her original seniority date and that Respondent Union had no power to alter that seniority . The Trial Ex- aminer further finds that Respondent Union's dis- criminatory motive is revealed by Pittner's account of the tripartite interview respecting the seniority question2 and the local Union 's letter to the Inter- national explaining its action .3 I do not think that the record supports these conclusions. Seniority rights are solely a matter of contract. In the absence of proven invidious motive , it is clear that a collective-bargaining representative can agree to distinguish among various categories of employees within the bargaining unit for seniority as well as for other purposes . Had the parties from the beginning realized that Pittner was a plant cleri- cal within the bargaining unit , it is clear that in the absence of proven invidious motive the Union could have agreed to place her in a separate seniority category . The Union did agree in the con- tract to separately deal, on an ad hoc basis, with the problem of retention of seniority by employees returning to the contract unit . As the Trial Ex- aminer found, Pittner was technically within the bargaining unit at all times in question. But bargain- ing unit coverage and bargaining agreement coverage need not be coextensive . Whether because they thought Pittner was a supervisor or an excluded clerical , none of the parties-neither the Employer, the Union, nor Pittner-treated her as coming within the terms of the collective-bargain- ing agreement until she returned to the production line. She acted as a management representative after certification and neither joined nor was asked to join the Union, despite the union-shop clause, for over 5 months after the collective agreement became effective . Both before and after the dispute arose concerning Pittner's seniority, the parties to the labor-management contract construed their agreement as not applicable to her during her em- ployment as a clerical or "forelady." This Board should not change that agreement by interpreting it differently. Nor do I think that the General Counsel has met his burden of proving that the interpretation given or the agreement made respecting Pittner 's seniori- ty rights was unlawfully motivated. On its face, the resolution seems equitable . Confronted with the same problem under a collective -bargaining agree- ment which did not provide for negotiated resolu- tion of the senority rights of personnel returning to 553 the seniority group, one can readily envision an ar- bitrator reaching the same result. It is true that in interviewing Pittner regarding the seniority question, Respondent Union's agent noted her failure to join the Union, her failure to vote in the election, and her role as observer at the union-shop referendum. But each of these questions, as well as others asked, was relevant to demonstrating that everyone involved assumed that Pittner was outside of the contract unit during her employment as a clerical or "forelady." Therefore I am not able to draw any invidious inferences from Pittner's account of that interview. It is also true that in its letter to the International president of the Union, Respondent Local Union made references to Pittner's failure to sign a "Union Application," her participation as the Employer's observer in the union-shop referendum, her failure to become a union member until trans- ferred, and the need to be fair to the people who supported the Union and joined within the required time . With the exception of the item last men- tioned, the above comments respecting Pittner's in- terview are equally applicable here. In contrast, the Union's observation respecting the need to be fair to the old members does allow an implication of discriminatory motivation. Nevertheless, read in context, this was a letter written by a local union official to the International president for the pur- pose of explaining that its disposition of a member's complaint was reasonable and proper. In that con- text, I do not think that these remarks are enough to satisfy the General Counsel's burden of proof. 2 Set out in the Trial Examiner's Decision 3 Ibid. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon charges, duly filed, the General Counsel for the Na- tional Labor Relations Board, by the Regional Director for Region 30 (Milwaukee, Wisconsin), is- sued a complaint on June 30, 1967, against Adams Corporation, Korn Kurls Division, A Division of Beatrice Foods Company, and against General Drivers, Dairy Employees & Helpers Local Union No. 579 affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Respondent Company and the Respondent Union, respectively, alleging that the Respondent Company has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, 61 Stat. 136, herein called the Act, and that the Respondent Union has en- 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in certain unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. The answer of each of the Respondents denies the allegation of unlawful conduct alleged in the com- plaint. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr in Beloit, Wiscon- sin, on August 22, 1967. All parties were represented by counsel and were afforded opportu- nity to adduce evidence , to examine and cross-ex- amine witnesses, and to file briefs . Briefs have been received from the General Counsel and the Respondent Union and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the fol- lowing: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT COMPANY The Respondent Company is a Wisconsin cor- poration with its principal oce and plant located at Beloit, Wisconsin, where it is engaged in the manufacture of snack foods . During the 12 months preceding the hearing herein , Respondent sold and shipped products directly from its Beloit , Wiscon- sin, plant to points and places outside of the State of Wisconsin . During the same period it purchased and received goods at its Beloit, Wisconsin, plant valued in excess of $50,000 directly from points outside the State of Wisconsin. The Respondent concedes , and I find, that it is engaged in commerce within the meaning of Sec- tion 2(2) (2) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Dairy Employees & Helpers Local No. 579 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by causing the Company to discriminate against em- ployee Lillian Z. Pittner in denying her her rightful place on the seniority list by failing and refusing to give her credit for her length of service with the Company. As to the Respondent Company, the complaint alleges that it discriminated against Pittner in violation of Section 8(a)(1) and (3) of the Act by changing her employment date, for seniority purposes, to the date she joined the unit, rather than the date she commenced employment with the Company. A. Pittner's Employment History Lillian Z. Pittner started working for the Com- pany as a packer in the production department on June 11, 1948. After working approximately 2 months on this job she was made a machine opera- tor and thereafter continued to work in this capaci- ty until October 13, 1958. On the latter date Pittner was made a forelady, with an accompanying change in duties. While it is undisputed that her job as forelady was in a nonsupervisory capacity, one of the issues in this case is whether her status in this position was that of a plant clerical employee or of an office clerical employee. My determination of this issue and the facts relative thereto are set forth in a succeeding section. After she had remained in her position as forelady for approximately 8 years, this job was abolished on November 18, 1966. On or about November 28, 1966, Pittner was transferred to a job on the wafer line in the production department and she has continued in this position until the present time. B. The Advent of the Union The Respondent 's plant operated in a nonunion capacity until December 17, 1965, at which time, following a Board-conducted election, the Respon- dent Union was certified by the Board as the collec- tive-bargaining agent of the Company's employees in the following unit: All production and maintenance employees, including shipping and receiving employees, drivers, and working foremen employed by the employer at the plant located at 1126 Harvey Street, Beloit, Wisconsin; excluding guards, professional employees , technical employees, office clerical employees and supervisors as defined in the Act. On February 15, 1966, the Union won an "all- union agreement referendum " conducted by the Wisconsin Employment Relations Board , thereby entitling it to bargain for an "all-union agreement. thereby As will appear hereinafter , it is significant to note that Pittner acted as the observer for the Company at the election held on this date. On June 6, 1966, the parties signed a collective- bargaining agreement which contained a union- shop provision requiring all employees in the bar- gaining unit to become members not later than the 31st day following the beginning of their employ- ment or the effective date of the contract, whichever was the later. C. Facts and Conclusions as to Pittner's Job Status Between October 1958 and November 1966 Upon assuming the position of forelady in Oc- tober 1958, Pittner continued to spend 5 hours per day on the production floor, her work there consist- ADAMS CORP., KORN KURLS DIVISION ing chiefly of acting as relief operator for the female employees who operated production machinery. She spent the remaining 3 hours in the production office of the plant foreman where she engaged in inventory work. As the production work- ers, she continued to punch a timeclock and was paid on an hourly basis. Also like the production workers, she continued to wear a white uniform which was furnished by the Company. On Saturday mornings she would come in to operate machines and also to perform such menial tasks as scrubbing tables and cleaning tape machines. In 1963, due to a change in certain machinery and also due to the fact that additional operators had been hired, Pittner was advised that she was no longer to go on the floor as a relief operator. Thereafter, and continuing until the time her job was abolished in November 1966, Pittner continued to work on production inventories, in addition to which she was given additional miscellaneous tasks which, I find, were either directly related to production work or involved activities related to the accommodation of production employees. A detailed description of such miscellaneous duties, as set forth in a document prepared by Pittner and received in evidence, is attached hereto as Appen- dix A.' Although continuing to work in the same office with the plant foreman, Pittner credibly testified that subsequent to 1963 she continued to spend ap- proximately 3 hours in the performance of her du- ties outside of the office, such time being spent on the production floor, in the plant basement, or going between Plant One and Plant Two, which are located a block apart. Significantly, the office of the plant foreman, a separate enclosure occupied only by the foreman and Pittner, is located im- mediately adjacent to the production floor and has a window overlooking the production area. The main office, which is occupied by billing clerks, the purchasing agent, receptionist, and the general manager, is adjacent to the foreman's office. This office, also referred to as the downstairs office,2 is not immediately adjacent to the production area and can only be reached from the production area through use of the office occupied by Pittner and the foreman. During the period of 1963-1966, Pittner con- 'As indicated hereinafter, Pittner engaged in various correspondence with the Union and with the Company concerning the seniority problem at issue herein. The document referred to above was enclosed with a letter by Pittner dated November 22, 1956 , to William Karnes, an official of Beatrice Foods Company. 2 Bookkeepers (and apparently other clericals ) work in another branch of the main office which is located in the upstairs of the plant. s Florida Tile Industries, Inc., 130 NLRB 897, 899 ; Avco Corporation, Electronics and Ordance Division , 131 NLRB 921, 924, Weyerhauser Com- pany , 132 NLRB 84; Thiokol Chemical Corporation , 123 NLRB 888, 891. ' The cases cited in the preceding footnote are also illustrative of this policy of the Board. In September 1966 Pittner was moved from the foreman 's office to the adjacent downstairs office and continued to work there until her job was abolished in November. However, since this move was made only because 555 tinued to punch the timeclock and remained an hourly paid employee. Unlike the clerical em- ployees who worked in street clothes, Pittner, until the time her job was abolished, continued to wear the same white uniform which Respondent furnished to its production employees. In view of all the foregoing, I think it clear that Pittner's work activities, interests, and working con- ditions were closely alligned with those of the production employees and I therefore find that she essentially was a plant clerical employee rather than an office employee during the period preced- ing her transfer to the wafer line.' Therefore, and in accordance with customary Board policy,' I find that Pittner properly belonged within the produc- tion and maintenance unit represented by the Respondent Union, as certified by the Board.' D. Facts Pertaining to Pittner's Loss of Seniority As previously noted, Pittner's nonsupervisory job of forelady was abolished on November 18, 1966.6 On the same date, Pittner was offered a job in the bookkeepinf department in the upstairs branch of Respondent s main office. Having no alternative, Pittner accepted the job. However, upon ascertain- ing that this position involved typing and some knowledge of bookkeeping, neither of which qualifications she possessed, she remained on this job for only 2 hours. Pittner at this time took a brief vacation, following which she was given a job on the wafer line in the production department in Plant Two, where she is presently employed.' Hav- ing not theretofore joined the Union, Pittner became a member of the Union in January 1967. She has remained a member of the Union at all times since. Turning now to the seniority question, it is preliminarily noted that Respondent maintained and published a seniority roster, such being periodi- cally brought up to date. A seniority roster dated July 22, 1966, credited Pittner with a seniority date of June 11, 1948, the date on which she was first hired. A later seniority roster of February 1967, also reflected Pittner's seniority date as June 11, 1948. However, the Respondent Company admits that this date was subsequently crossed out and, by typed insertion, was changed to reflect the date of November 1, 1966. construction work was being undertaken to create new offices for the plant foreman and the production manager , I do not regard this temporary , albeit final, move as having any bearing upon her job status. Suffice it to say that during this brief period Pittner 's job duties remained the same and she con- tinued to wear the white production uniform "On November 22, 1966 , Pittner wrote a letter to Beatrice Foods, Respondent's parent company which is located in Chicago. In this letter Pittner protested the abolishment of her job as forelady and also expressed her concern that she might lose her seniority if transferred to work on the line In this letter she enclosed a list of her job duties as forelady, attached hereto as Appendix A. I Pittner continued to receive her rate of $2.12 per hour , which was her rate prior to her transfer to the wafer line. This rate was higher than that of the other production employees in the department. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Insofar as the record reveals , Pittner first became concerned over her seniority status in September 1966. At this time one Darlene Simonds, a leadlady in Plant Two, was transferred as leadlady to Plant One where Pittner was working. Shortly after Simonds' transfer, one of the employees on the floor became ill. Although Pittner , as forelady, customarily had been responsible for the handling of such cases, at this time a question arose as to whether she or Simonds should assume the respon- sibility of taking care of employees who became ill on the floor . Pittner credibly testified that she took the matter up with Earl Wilson , the general manager of the plant,' and that Wilson at this time advised her that such floor responsibilities would thereafter be Simonds ' and that she was merely to continue with her production office duties . Pittner testified that at this time she asked Wilson about her seniority status, but that he only stated, "we would cross that bridge when we come to it." No further mention was made of Pittner's seniori- ty until the latter part of December 1967, which was about 3 weeks after her transfer to the wafer line. According to Pittner, on this occasion she en- countered Wilson on the floor and asked "if he had heard from the union as to whether I would get my seniority." Pittner said that Wilson again replied that they would let the matter go for now, that they would cross that bridge when they came to it. Pittner testified that at about this time she also raised the question of her seniority with John Sisbach , the union steward , but that he also told her to let the matter rest. Not long after her conversations with Wilson and Sisbach, Pittner made a telephone call to Leonard Schoonover, a business agent and organizer for the Respondent Union who was then servicing the plant. Pittner queried Schoonover as to whether it was fair that she had been placed on the production line and then asked if she would lose her seniority. Schoonover said that he would call her back. Fail- ing to hear from him, Pittner again called Schoonover. According to Pittner , "I asked him if he had heard anything whether I'd lose my seniority and if they had a right to do this , and he said yes, they had the right to do it." In the meantime, and during the months which followed, a number of discussions took place between representatives of the Respondent Com- pany and the Respondent Union concerning the matter of Pittner's seniority.' In latter March 1967, having received no final answer concerning the question of her seniority, Pittner wrote a letter to the Washington, D.C., office of the International Brotherhood of Teamsters , apprising it of the situa- tion and of her seniority problem . On March 31, 1967, the International Union transmitted this 'Wilson , also a vice president, first came with the Company in March 1966 letter to Wallace Federman , secretary-treasurer of Local 579, and requested that he conduct an in- vestigation of the matter . Federman delegated this function to Business Representative Schoonover. Schoonover, who had previously discussed the question of Pittner 's seniority with Wilson, testified that upon receipt of the International 's letter he requested the Company to write a letter giving its position on Pittner 's seniority . Wilson thereupon sent Schoonover a letter, dated April 18, 1967, which stated as follows: Dear Mr. Schoonover: This letter is to clarify our position concerning Lillian Pittner's past and present employment. During the month of November , 1966, the position which Lillian Pittner had at that time was eliminated . Her duties at that time were entirely of the clerical nature and she was not doing any production work at that time. En- closed is a list of duties which she outlined in a letter which she sent to Mr. Karnes, the pres- ident of Beatrice Foods , and I think as you will note, her duties were, as stated previously, primarily of the clerical nature . I frankly can- not tell you what her official title was at that time, but I do know that going back several years, she was given the title of "floor lady" and she was also actively engaged in produc- tion work. At the time her job was eliminated , we offered her a position in our office staff but after two hours in this position, she indicated she could not do the work and would not be able to han- dle her new job. Therefore, we offered her a position in the plant, and as I stated to her at that time, as far as the company was con- cerned , she would maintain her present hourly rate which, incidentally , is much higher than we would normally pay for the position she would have in the plant and we also would be willing to maintain her seniority going back to the original date she was hired, but it was also pointed out to her that the decision concerning the seniority and the hourly rate would be en- tirely up to the union and that this was out of our jurisdiction as the employer. We hope the above information will help clari- fy our position in regards to Lillian Pittner. [/s/ Earl S. Wilson] On or about April 20, 1967, Pittner was sum- moned into Wilson 's office for a discussion with ' General Manager Wilson testified that approximately 10 such discus- sions were held between November 1966 and the middle of May 1967. ADAMS CORP., KORN KURLS DIVISION Wilson and Schoonover. Pittner, who impressed me as a credible witness , gave the following account of this conversation:10 When I got into Mr. Wilson 's office and I had been ill, so Mr. Wilson asked me how I was feeling now and I says , "Much better, thank you." And he offered me a chair . Before I could even get sat down in the chair, Mr. Schoonover, he says, "Are you trying to bump Darleen Simonds?" And I said, no, I wasn't try- ing to bump Darleen Simonds. And he says, why did I write to Washington, then? He had a letter in his hand , what the letter contained I don't know but he had a letter in his hand. And then he says, "Are you trying to bump Darleen Simonds?" Again. And I said, "No," I said, "I wouldn't bump her if you paid me double the money now to take her job."- And he says, "Why [didn't]" you join the Union?" And I said, "Because I was told by three key men in the shop that I couldn't and shouldn't join the Union." And then he says why didn't I come to him with that question? And I says, "I never had any dealings with the ... with a union before," and I didn't know that I could bring my problems to him. And he says, well, I could have. . . . then he said, "Are you a salaried em- ployee?" And I said no. He says, "How come you was an observer for the Company, then, at the election?" And I says, "I was asked to go on that by Mr. Jensen." And Mr. Schoonover, he says, "How could you be an observer if you was salaried?" And I says "I wasn 't salaried." And he said, "Well, they don't allow people to sit in as an observer. Only salaried people should be sitting in as an observer. And he says, "You must have been salaried." And at that point Mr. Wilson says, "What does that mean?" and Mr . Schoonover raised up his hand like that and just shrugged his shoulders and didn 't say anything. Then he says, "I still say, you must have been salaried." And I says, "No , I was not salaried." And he said, "Are you still trying to bump Dar- leen?" And I said no. 10 Pittner 's narrative version of this conversation is set forth verbatim, ex- cept that I have omitted an occasional question or colloquy which does not affect the substance of this testimony In addition to crediting Pittner, it may be noted that Pittner 's account of this conversation is uncontroverted. 557 And then he says, "Did you punch a timecard?" And I said, "Yes." Then he said, "Why are you fighting so hard for your seniori- ty?" And I said, "Well, I had almost 19 years in," and I said, "I didn't think that I should stand a chance of losing it." And he says, "Well, is that the only reason?" And I says "No." And I says, "Do you want me to tell you right in front of Mr. Wilson?" And he says, "Well, it's all right." So I says then that the people in the shop were going to ... when the present contract was up, go for a 20- year retirement plan. And I says, with my 19 years, I didn't want to lose it because I would be on that list to retire then. He again asked me if I was going to bump Darleen, and I said no. He asked me why I didn't vote in the election. I said, I had three people tell me that I could not vote for the Union, because I was a forelady. And I said that I didn't, because I was told by three people that I wasn't supposed to vote, being a forelady. And he says, why didn't I come and ask him whether I could vote or not. Following the above meeting in Wilson's office, Schoonover reported his interview with Pittner to Wallace Federman. On April 24, 1967, Federman wrote a letter to Frank E. Fitzsimmons, president of the International, which stated as follows: Dear Sir and Brother: Mrs. Pittner was performing Clerical Work at the time the Union organized this Plant. Clerical Workers were excluded from the Unit as provided for under the Act. She made no at- tempt to sign a Union Application or request that she be in the unit until the Employer later eliminated her job. This Employer made a practice of giving ti- tles and merit increases to many of his Em- ployees prior to the Plant going Union. We have attached a copy of a letter from the Plant Manager, a copy of the results of the Union Shop Referendum, which shows that Lillian Pittner did in fact, act as Observer for the Employer, as late as February 15, 1966, and signed the result sheet for the Employer. Considering all the facts, we can only as- sume Lillian Pittner was not in fact in the Bar- gaining Unit at any time and made no effort to become a Union Member until her Employer eliminated her job. We appreciate her desire to retain her " Although this question is stated in the transcript as "why don't you join the union," I am pursuaded that in fact this question was propounded as "why didn't you join the union." As previously indicated , Pittner joined the Union in January 1967, some 3 months prior to the above conversation. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seniority with the Employer, but in all fairness to the people who supported the Union and joined within the required time, we have no choice but to consider Lillian Pittner a new Employee in the Bargaining Unit and place her on the bottom of the Seniority List. Of course, she retains, her rights for Vaca- tions and other Fringe Benefits. I hope this will clear this matter up for you. If I can be of any further assistance, feel free to contact me. [/s/ Wallace R.Federman] On May 2, 1967, pursuant to advice received from Fitzsimons, Federman wrote Pittner, enclosing a copy of his above April 24 letter to Fitzsimmons, advising that "Mr. Schoonover will be in touch with the Adams Corporation in the very near future to see that the Seniority roster is correct in respect to your position." It is undisputed that also on May 2, 1967, Schoonover sent a letter to Wilson which notified him as follows: Dear Sir: This Union takes the position that Lillian Pittner's Seniority in the Bargaining Unit must be the date she actually started work in the Production Unit. We do not have the exact date, but it should be in December of 1966. If you are carrying this employee on the Roster as of her original hiring date in 1948, we suggest you indicate that the December, 1966 Date applies for the purpose of lay off and the old date for vacation purposes. If you have any further question on this matter, please contact me. [/s/ Wallace Federman] About a week after receipt of the above letter, Wilson called Pittner into his office and advised her that she would not be able to retain her original seniority date of June 11, 1948, because the Union would not allow it. It is undisputed that at about this time the Respondent Company changed Pitt- ner's seniority date from June 11, 1948, to November 11, 1966 (the date she started on the wafer line), and that it has remained such ever since. E. Conclusions As noted in the facts set forth in the preceding section, it is undisputed that the Respondent Em- ployer changed Pittner's seniority from June 11, 1948, to November 11, 1966, at the behest and in- sistence of the Respondent Union. The Union's defense to the allegation that it violated Section 8(b)(1)(A) and (2) of the Act by causing the Com- pany to take this action is largely predicted upon the followin, provision in the collective-bargaining agreement:' An employee who leaves the classification of work covered by this Master Agreement, but remains in the employ of the Company in some other capacity, may retain seniority rights upon return to the original unit providing that he returns within a period of time agreed upon between Local Management and the Local Union. In the absence of such express agree- ment, such employee shall lose all seniority rights. Pointing to the above provision, it is the Respon- dent Union's contention that it was merely enforc- ing this provision in the contract when it insisted that Pittner's seniority date be changed to conform to the date when she began working on the wafer line. In finding no merit to this contention, the short answer is that Respondent's argument is based upon the erroneous premise that Pittner was not within the bargaining unit of production and maintenance employees at the time she started work on the wafer line. As heretofore noted, and contrary to the position of the Union, I have found the evidence to establish that Pittner 's position prior to her transfer to the wafer line was essen- tially that of a plant clerical and that as such, in accordance with traditional Board policy, she properly was within the production and main- tenance unit at all times material hereto . It must therefore follow, and I find, that Respondent Union had no contractual right to demand that Pittner's seniority status, as previously reflected on the Com- pany's seniority roster, be reduced in the manner heretofore indicated. 13 The Union alternatively contends that even though it may have acted erroneously, it still did not engage in unfair labor practices because there is no showing that its action was based on some consideration related to Pittner 's union sympathies, activities, or membership. I also reject this conten- tion, since I am pursuaded that Respondent's action indeed was predicated upon the fact that Pittner did not lend her support to the Union during the earlier stages of her employment, including the or- ganizational campaign and the union-agreement election. Thus, when Schoonover finally confronted Pittner in Wilson's office on April 20, 1967, for the alleged purpose of investigating the merits of her " Section 29. C4 of the Master Agreement between Beatrice Foods Company and the Union. "The cases cited and relied upon by the Union in its brief, while cor- rectly holding that a seniority provision of the type in the instant collective- bargaining agreement is legally permissible, are otherwise factually distin- guishable from the instant case and do not apply to the situation involved herein ADAMS CORP., KORN KURLS DIVISION 559 seniority claim, it is significant that the entire thrust of his conversation did not entail a discussion of her prior employment history or job status, but rather dealt with matters pertaining to her union member- ship and activity. As indicated in the conversation heretofore set forth that such was his prime con- cern is clearly manifested by his interrogation of her as to why she had not joined the Union, why she had not voted in the union shop election, and why she had acted as company observer in that election . I think it also curious that Schoonover dis- played such a keen interest in ascertaining whether Pittner sought to bump Darlene Simonds, a question which he repeatedly brought up during the course of the conversation . Significantly, Simonds was an ardent supporter of the Union during its or- ganizational campaign, had obtained authorization cards for the Union, and had served as a member of its negotiating committee. 14 If Schoonover's interview of Pittner of April 20 is not enough, an even clearer manifestation of the Union's true motive in resolving the Pittner seniori- ty problem is reflected in Federman's April 24, 1967, letter to Frank Fitzsimmons of the Interna- tional, previously set forth herein. Thus, failing in the first instance to make any distinction between a plant clerical and an office clerical employee, the letter simply asserts that Pittner was performing of- fice clerical work at the time the Union organized the plant and that "clerical workers" are excluded from the unit.'' The letter thereafter states that "We can only assume Lilliam Pittner was not in fact in the bargaining unit at any time ...." Without citing any objective criteria to support this conclusion, Federman's letter stresses only such matters as Pittner's failure to sign a union applica- tion and her failure to make an effort to become a union member prior to the elimination of her former ob. Significantly, particular emphasis is put on the fact, as underlined in the letter, that Pittner acted as observer for the employer as late as Februa- ry 15, 1966. Finally, the letter concludes with the statement that ". . . in all fairness to the people who supported the Union and joined within the required time, we have no choice but to consider Lillian Pittner a new employee in the Bargaining Unit and place her on the bottom of the seniority list." From all of the foregoing, I think it clear that the import of Federman's letter reflects an attitude of critical hostility toward Pittner because she, unlike the majority of the other employees in the unit, did not give her support to the Union during the various stages of its organizational activities. Additionally, due to the emphasis placed upon Pittner's role in the February 15 election, I can but conclude that the Union bore a certain resentment against this employee because she acted as the company ob- server in that election. Accordingly, and upon the entire evidence in this case, I am convinced and find that it was for these reasons that the Union made its demand upon the Respondent Company to reduce Pittner's seniority. I therefore find that by such conduct the Respondent Union violated Sec- tion 8 (b)(1)(A) and (2) of the Act.'s I further find that by yielding to the will of the Union, the Respondent Company violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Respondent's business operations described in sec- tion I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Employer and the Respondent Union have engaged in certain un- fair labor practices, I will recommend that they cease and desist therefrom, and take certain affirm- ative action designed to effectuate the policies of the Act. It shall be recommended that (1) the Respondent Union notify the Respondent Company, in writing, with a copy to Lillian Z. Pittner, that the Union has no objection to restoring the seniority date, to be effective for all purposes, to June 11, 1948; and (2) the Respondent Company restore Pittner's seniority date, to be effective for all purposes, to June 11, 1948. Upon the foregoing findings of fact and upon the entire record in this case, I hereby make the follow- ing: CONCLUSIONS OF LAW 1. Adams Corporation, Korn Kurls Division, A Division of Beatrice Foods Company , is an em- " Schoonover conceded knowing that Simonds was a member of the or- ganizing committee . While first denying that he received authorization cards from Simonds , he later testified that he possibly did. That he in fact did receive cards from this employee is revealed in his prehearing affidavit, in which he stated "I received some union authorization cards from Simonds and about six other girls from employees who had turned their cards in to them for transfer to the Union ." In this affidavit he further stated , "I know Simonds was active on behalf of the union before it was certified " " The unit description, in fact, specifically excludes "office clerical em- ployees " 16 In view of my finding that the Union 's action in this case was essen- tially taken as a measure of reprisal against Pittner because she had not joined or supported the Union at an earlier stage, I do not deem it necessa- ry to decide whether Miranda Fuel Company, Inc, 140 NLRB 181, cited by the General Counsel, is applicable to the situation presented in the instant case. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer within the meaning of Section 2(2) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By changing the seniority date and dis- criminating in regard to the terms and conditions of employment of Lillian Z . Pittner, thereby encourag- ing membership in Respondent Union, Respondent Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By causing the Respondent Company to change the seniority date of Lillian Z. Pittner and to discriminate against Pittner in violation of Sec- tion 8(a)(3) of the Act, the Respondent Union has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that: A. Adams Corporation, Korn Kurls Division, A Division of Beatrice Foods Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in General Drivers, Dairy Employees & Helpers Local Union No. 579 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, or in any other labor organization of its employees, by changing the seniority dates of its employees , or in any other manner discriminat- ing against any employee in regard to hire or tenure of employment or any term or condition of employ- ment, except as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Restore Lillian Z. Pittner's seniority date on its seniority roster, to be effective for all purposes, to June 11, 1948. (b) Post at its Beloit, Wisconsin, premises, co- pies of the attached notice marked "Appendix B,"17 and, as soon as forwarded by the Regional Director, "Appendix C." Copies of said notices, on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent Em- ployer's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith."' B. Respondent General Drivers, Dairy Em- ployees & Helpers Local Union No. 579 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, representatives , and agents, shall: 1. Cease and desist from: (a) Causing or attempting to cause Respondent Company to discriminate against Lillian Z. Pittner, or other employees, in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify Respondent Company, with a copy to Lillian Z. Pittner, in writing, that it has no objection to, and will not oppose, the Respondent Company's restoring Lillian Z . Pittner's seniority date to cor- respond to the date of her initial hire, i.e., June 11, 1948. (b) Post at all of its offices, copies of the at- tached notice marked "Appendix C."19 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent Union's authorized representative, shall be posted immediately upon receipt thereof, "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 11 See fn. 17, supra ADAMS CORP., KORN KURLS DIVISION 561 and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Forward copies of Appendix C to the Re- gional Director for posting by the Employer at its place of business. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision!' what steps have been taken to comply herewith.20 20 See fn. 18, supra APPENDIX A Date: November 1966 Subject: Duties of Lillian Pittner 1. Keep inventory on gloves, hats, tapes, stickgun, inks, stencil board etc. 2. Keep inventory on uniforms and order same. 3. Issue uniforms to new employee. 4. Keep index card on employees uniforms. Is- sued and returned. Send soiled uniforms to laundry. 5. Take care of modess machine filling and reordering. 6. Make a production sheet for the day. Enter morning inventory on production sheet. Enter orders received daily. Enter production made in day. Deduct orders from morning inventory and production of day to get starting inventory for following day. Put orders , production, and orders shipped out in ledger book, at end of week total and itemize same and take figure sheet to Mr. Wil- son, Mr. Billott, Mr. Jensen Mr. Adams Mr. Aughey and Steve Schaffer. 7. Take Absenteeism through out all shops. 8. Take care of some insurance matters 9. Take care of product sales for the girls. 10. Separate time cards and distribute to dif- ferent departments 11. Keep up personnell file cards of new em- ployees. Date hired Phone number and who to notify in case of accident etc. When they quit, are layed off I send notice to payroll right away. If the employee is injured I know who to notify 12. Make time cards for employee that payroll girl has not made up. 13. Make timecard numbers for new employee and send to payroll and put new number in time clock rack. 14. Keep the amount of time the girls work on different snack foods, that pay roll clerk can charge to different costs, such as Snack chips, Cornchips, Kornkurls and all the other products that the company makes 15. take care of all gripes from canteen machines. When employees lose money I get it back for them. when canteen is of order I have it fixed. Alot of the employees depend on this machine for their dinner. 16. Write Vacation slips for employee and take to payroll., Keep record of vacation days for each employee. 17. Sort and distribute checks to each depart- ment. Pass out checks to plant one employees 18. Answer switchboard at 6:00 A:M for em- ployees calling in sick or has other excuses. Or- ders some time come in before the order clerk arrives and I also take these orders. 19. Keep seniority list so if there is a layoff they go by that and if a full crew isn't needed they take the top girls to work. I usually do all the notifing of girls. If there is no production for the night girls and they have not been told the night before not to come I call them and tell them 20. Issue first aid to employees. If injury is real bad I issue an order on the Dr. and take em- ployee to hospital. When I get Back to shop I make Out accident report and send to Safety and claims and the other channels. I also han- dle all compensation checks. I disinfect the medicine chest periodically and restock sup- plies 21. Turn cash sales in to billing clerk at end of month 22. Listen to personell problems of Employees and if they need the attention of the foreman, I see that it is taken to him There is probably more duties that I do but I think this is a good start APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in General Drivers, Dairy Employees & Helpers Local Union No. 579 affiliated with the Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, or in any other labor organization, by changing the seniority dates of our employees or in any other manner discriminating against any em- ployee in regard to hire or tenure or employ- ment or any term or condition of employment, except as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 354-128 O-LT - 73 - pt. 1 - 37 562 DECISIONS OF NATIONAL WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the right guaranteed in Section 7 of the Act, except in conformity with the provisions of Section 8(a)(3) of the Act. WE WILL restore to Lillian Z. Pittner her rightful place on our seniority roster. Her rightful seniority date, to be effective for all purposes, is June 11 , 1948, the date when she commenced working for this Company. All our employees are free to become or remain, or to refrain from becoming or remaining , members of the above-named union or any other labor or- ganization , except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. ADAMS CORPORATION, KORN KURLS DIVISION, A DIVISION OF BEATRICE FOODS COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Second Floor Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 272-3879. APPENDIX C NOTICE TO ALL MEMBERS OF GENERAL DRIVERS, DAIRY EMPLOYEES & HELPERS LOCAL UNION No. 579 AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify you that: LABOR RELATIONS BOARD WE WILL NOT cause or attempt to cause Adams Corporation, Korn Kurls Division, A Division of Beatrice Foods Company, to dis- criminate against Lillian Z. Pittner or other employees in violation of Section 8(a)(3) of the Act, as modified by the Labor- Manage- ment Reporting and Disclosure Act of 1959. WE WILL notify Adams Corporation, Korn Kurls Division, A Division of Beatrice Foods Company, and Lillian Z. Pittner, in writing, that we have no objection to and will not inter- fere with the restoration of Lillian Z. Pittner to her rightful place on the Company's seniority roster. Her rightful seniority date, to be effec- tive for all purposes, is June 11, 1948, the day on which she commenced her job with the above-named Company. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act, ex- cept to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. GENERAL DRIVERS, DAIRY EMPLOYEES & HELPERS LOCAL UNION No. 579 AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Second Floor Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 272-3879.