Darigold Dairy Products Co.

DARIGOLD DAIRY PRODUCTS CO. 701 Consolidated Dairy Products Company, d/b/a Dari- gold Dairy Products Company and Teamsters General Local, 174, affiliated with the, International, Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America (Consolidated Dairy Products Company) and Robert H. Sisson. Cases 19-CA-5211 and 19-CB-1671 Sisson at the top of said list. In such latter event, Robert H. Sisson is to be offered employment at such time as a vacancy may occur in the bargaining unit at Respondent Consolidated which Respondent Team- sters General Local 174 represents." 2. Substitute the attached notices for the Trial Examiner's notices. December 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 15, 1971, Trial Examiner Leo F. Lightner issued the attached Decision in this proceed- ing. Thereafter, both Respondents filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recom- mended Order, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent Consolidated Dairy Products Company, d/b/a Darigold Dairy Products Company, Seattle, Washington, its officers, agents, successors, and assigns; and the Respondent Teamsters General Local 174, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order, as modified. 1. Substitute the following paragraph for para- graph I, 2(a), of the recommended Order. "(a) Offer to Robert H. Sisson immediate employ- ment in the bargaining unit of which Respondent Teamsters General Local 174 is the representative without prejudice to seniority and other rights and privileges he would have enjoyed had he been employed on March 23, 1971, or, in the event no such vacancy exists, and no employee has been hired since March 23, 1971, as a wholesale or interplant driver in the bargaining unit of which Respondent Teamsters General Local 174 is the representative, establish a preferred hiring list and place the name of Robert H. 1 In the absence of exceptions to the rulings, findings, and conclusions of the Trial Examiner, we adopt them pro forma Both Respondents except to that part of the Trial Examiner's recommended Order at paragraph I, 2(a), wherein the Trial Examiner ordered Respondent Consolidated to offer the Charging Party immediate employment in either its ice cream department or its milk department as a driver or in case there are no vacancies in either department to establish a preferential hiring list for both departments and to place the Charging Party's name at the top of the list. The Respondents contend that in including the milk department in the recommended Order the Trial Examiner has gone beyond the scope of his jurisdiction in this case since the milk department drivers of Respondent Consolidated are covered by a different contract in a separate unit by a different local, not Respondent Teamsters, which local is not a party to this proceeding, made no appearance, and received no notice concerning same. We agree that the milk department should not be included in the recommended Order and modify the Order accordingly APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in Team- sters General Local 174, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, by discriminating against any employee, or applicant for employment, in regard to his hire or tenure of employment, or any term or condition of employ- ment. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right 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. WE WILL offer employment to Robert H. Sisson as a wholesale or interplant driver in the bargain- ing unit which Teamsters General Local 174, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, represents, without prejudice to 194 NLRB No. 111 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority and other rights and privileges he would have normally enjoyed whenever a vacancy in that unit shall occur. WE WILL jointly and severally with Teamsters General Local 174, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, make Robert H. Sisson whole for any loss of pay he may have suffered as a result of the discrimination against him by paying him a sum of money equal to that which he would have earned absent the discrimi- nation. CONSOLIDATED DAIRY PRODUCTS COMPANY, D/B/A DARIGOLD DAIRY PRODUCTS COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-5536. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause, or attempt to cause, Consolidated Dairy Products Company, d/b/a Darigold Dairy Products Company, or any other employer within our jurisdiction, to discriminate against Robert H. Sisson, or any other employee, in violation of the proscriptions of Section 8(a)(3) of the Act. WE WILL notify Consolidated Dairy Products Company, d/b/a Darigold Dairy Products Com- pany, that we have no objection to the employ- ment of Robert H. Sisson as a wholesale or interplant driver, that we will not cause or attempt to cause said employer to discriminate against Robert H. Sisson, or any other employee, because he is not a member of Local 174, except to the extent that membership may be required as a condition of employment under the terms of a collective-bargaining agreement made as author- ized in Section 8(a)(3) of the Act. WE WILL NOT restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of said Act. WE WILL jointly and severally with Consolidat- ed Dairy Products Company, d/b/a Darigold Dairy Products Company, make said Robert H. Sisson whole for any loss he may have suffered as a result of the discrimination we have caused. TEAMSTERS GENERAL LOCAL 174, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-5536. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Seattle, Washington, on August 5, 1971, on the consolidated complaint of General Counsel, as amended, and the answers of Consolidated Dairy Products Company, herein referred to as Respondent Consolidated or Consolidated, and Teamsters General Local 174, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America , herein referred to as Respondent Local or the Union.' The consolidated complaint alleges violations of Section 8(a)(3) and (1), Section 8(b)(1)(A) and (2), and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, (61 Stat. 136; 65 Stat. 601; 73 Stat. 519; 29 U.S.C. Sec. ' 151 et seq.), herein called the Act. The parties waived , A charge in Case 19-CA-521 1, against Respondent Consolidated, was filed on April 6. A charge in Case 19-CB-1671, against Respondent Local, was filed on April 6 A consolidated complaint was issued on June 23, and amended during the hearing herein. All dates herein are 1971, unless otherwise indicated. DARIGOLD DAIRY PRODUCTS CO. closing argument and briefs filed by the General Counsel and Consolidated have been carefully considered. Upon the entire record,2 and from my observation of the witnesses I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT CONSOLIDATED AND RELATED EMPLOYERS Respondent Consolidated is a Washington corporation, with offices and a plant located in Seattle, Washington, where it is engaged in the processing, sale, and distribution of milk and dairy products. Dairy Employers Labor Council is an association of employers in the dairy industry including,' inter alia, Respondent Consolidated, and is established and exists, inter alga, for the purpose of negotiating collective-bargain- ing agreements with Respondent Local and other labor organizations on behalf of its employer-members. During the year immediately prior to the issuance of the consolidated complaint, a 'representative period, the employer-members of the Council, in the course and conduct of their business operations, sold and distributed products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from their plants, located in the State of Washington, directly to points outside the State of Washington. The consolidated complaint alleges, the answers admit, and I find that the Council, and its employer-members, including Respondent Consolidated, are each, and at all times material herein have been, employers engaged in commerce and in activities affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. RESPONDENT' LOCAL IS A LABOR ORGANIZATION The consolidated complaint alleges, the answers admit, and I find that Respondent Local, at all times material, is and has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Issues The principal issues raised by the pleadings and litigated at the hearing are: whether Respondent Local, by Leonard Newsham, its business representative and agent, and by George Cavano, its secretary-treasurer and agent, on or about March 19, March 23, and April 8 requested and demanded that Respondent Consolidated refram from hiring Robert H. Sisson, because Sisson was not a member of Respondent Local, and threatened picketing, work stoppages, and other reprisals, if Sisson was so employed, in derogation of the provisions of Section 8(b)(2) and Section 8(b)(1)(A) of the Act; and whether Respondent Consolidat- ed,'by refusing to employ Sisson, because of his nonmem- bership in Respondent Local, since March 23, in response to the demand and request of Respondent Local, in that 2 General Counsel filed a motion to correct the transcript No opposition thereto has been received. The motion is granted, and the 703 regard, has thereby engaged in conduct in derogation of the provisions of Section 8(a)(3) and (1) of the Act. Respondent Consolidated, by answer, acknowledges that Sisson was advised that he was qualified for employment, but asserts that it was on a temporary basis, allegedly during the period of incapacitation of two drivers. Respondent Consolidated admits it did not hire Sisson, but asserts that this conduct was confined to a period while the interpretation of the collective-bargaining agreement was being discussed with Respondent Local, and asserts that meanwhile the absentees returned, inferentially obviating the need for Sisson. Both Respondents deny the commis- sion of any unfair labor practice. Agency The consolidated complaint alleges, the answer of Respondent Local denies, and I find that George Cavano, secretary-treasurer, and Leonard Newsham, business representative, respectively, of Respondent Local, at all times material herein, were and are agents of Respondent Local. Background The facts set forth under this section are undisputed. Jay Kaintz is wholesale distribution manager of Respon- dent Consolidated, and during March and April was responsible for the wholesale workforce relative to the in- town delivery in Seattle and interplant throughout the State of Washington. Kaintz related that Respondent has two divisions, one comprised of wholesale milk and the other ice cream. Kaintz, in March, and April, and inferentially at all times thereafter, was directly responsible for the hiring and firing of truckdrivers. He related that the milk truck drivers are represented by Local 66, while the ice cream drivers are represented by Respondent Local. The delivery of ice cream, by Respondent Consolidated, is accomplished by a unit comprised of nine drivers and one supervisor. Eight of the drivers deliver ice cream on wholesale routes in the city of Seattle. This is accomplished in 16 foot trucks. The other driver delivers ice cream to outlying plants of Respondent Consolidated, some of which are 100 miles distant, in such locations as Bremerton, Everett, Bellingham, Tacoma, Olympia, Ellensburg, Aber- deen, Chehalis, and Wenatchee, Washington, and Portland, Oregon. These deliveries are made in a semi, with two trailers, comprising a total length of 40 feet. The trips to Wenatchee and Ellensburg involve crossing mountain passes, including the Snoqualmie Pass which is over 3,000 feet in elevation, thus requiring the competence essential to traverse during inclement weather and under adverse conditions created by heavy snows. Kaintz asserted, relative to this aspect, that experience was an important factor, particularly in relation to the large equipment which is very expensive. The duties of the supervisor of these drivers include filling in for and driving the route when a driver is absent. record is corrected accordingly. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Karatz related that one driver was absent substantially all of January and a portion of February.3 Inferentially on an unspecified day prior to Sunday, March 14, Karatz was advised that a wholesale driver, identified as Jim Baker, had an ailment, which Kaintz was advised was rheumatism of the stomach, which was described to Kaintz as a rare illness, which would require confinement in a hospital for observation for an indefinite period of time. Baker complained that the stomach pains affected his legs, thus impeding his ability to accomplish his assigned duties. Inferentially at approximately the same time, Kaintz was advised that Ron Alm, the interplant driver, would be absent for an indefinite period, for an operative procedure, described to Kaintz as the result of a pinched nerve in Alm's spinal column, which would require a substantial period for recuperation. Kaintz was thus confronted with the probability of incapacitation, and resultant simultaneous absenteeism of two drivers. As a result, Kaintz undertook steps leading to the hiring of a new employee. Robert Sisson has been driving trucks for approximately 20 years, including driving 16 foot trucks, in the milk industry on wholesale routes, and the driving of semis and trailers. He has been in the milk industry for approximately 13 years. Sisson worked for Foremost, a dairy in Seattle, from 1958 until 1970. In the latter year he entered into business with a relative in Chicago. When the venture became a disappointment, he returned to Seattle, in October, and sought employment again as a driver in the milk industry. He filed an application on October 15, 1970, with Respondent Consolidated. The following month he was retained by Arden's Dairy, where his duties included the night loading of wholesale trucks and every-other-day delivery semis. These duties included driving and backing the trucks into the dock, and, after loading, parking them in the yard. While Sisson was not engaged in delivery work, as such, this was full-time employment. Respondent Consolidated, by reason of its membership in the Dairy Employers' Labor Council, and Respondent Local, are parties to a collective-bargaining agreement covering Respondent Consolidated's ice cream drivers. The current agreement, by its terms, is effective from April 1, 1970, through March 31, 1972, and its provisions include, inter alia: No. 2 -Article II. The employer agrees to notify the Local Umon of the name or names of persons hired. Newly hired employees shall be required to report to the Union before starting work. No. 3 -Article IX D. The company shall notify the Union when new or additional employees are needed. The Union shall have twenty-four (24) hours from receipt of such notice to nominate applicants for the job. No applicants shall be preferred or discriminated against because of their membership or non-member- ship in the Union. Events of March 19, 22, and April 8, and other events related thereto Kaintz related that during the week which commenced on Sunday, March 14, he decided to hire a new truckdriver in the ice cream department by reason of the anticipated simultaneous absence of Baker and Alm. In accordance with the provisions of the existing collective-bargaining agreement, set forth, supra, Respondent Local was notified. Respondent Local, pursuant to such notification, sent two applicants, identified as Usmial and Mazzone, who were interviewed by Lloyd Lund. Lund, who has been employed by Respondent Consolidated for 30 years, is route supervisor and supervisor of interplant wholesale. At the same time, Kaintz telephoned to Sisson and inquired as to how Sisson liked his job at Arden's. Sisson responded by indicating that he was interested in driving the interplant route, which was the job_mentioned by Kaintz. The following day, Kaintz, in an interview with Sisson, explained the problem he was having by reason of the illness of some employees, and advised that he needed someone who would be dependable and could be counted on to be there every day. Kaintz advised Sisson that Sisson would probably be driving the interplant route, because Sisson was not familiar with ice cream prices and the wholesale route. At that time, Sisson advised Kaintz that he would not accept a job of only a few weeks duration, because he had a job at Arden and "jobs were very hard [to obtain] and scarce". Kaintz responded that Kaintz was sticking his neck out, "but I'll keep you until September then we'll see what happens after that".4 Lund, after interviewing Usmial and Mazzone, deter- mined that Mazzone had very little experience. The maximum amount of time he had spent on any related job was 6 months and his jobsheet reflected only three equivalent jobs. Accordingly, Lund advised Kaintz that he believed that Usmial was the better qualified of the two applicants he had interviewed. Usmial had indicated on his application that he did not like to drive, inferentially over the mountain passes, in the snow, and had quit a job requiring such driving. Such driving is an obvious requisite of the interplant job. Lund and Kaintz acknowledged that upon consideration of the background of Sisson, set forth supra, they determined that Sisson was the best qualified of the three applicants.5 On Friday, March 19, Kaintz related that it was decided that Sisson was the best qualified of the applicants and Sisson was so advised. Kaintz asserted that it was planned to "blend the job" with the unit supervisor so that Sisson would or could be used both on the semi and, if needed, on the wholesale route. Kaintz related that Bud Ellis, whom he 3 It appears to be of no consequence whether a single driver or more than one driver was involved in these absences However, it does not appear that more than one drier was absent on any given day 4 Karatz appeared as a witness before Sisson . Kaintz was not recalled and did not deny this assertion of Sisson, except inferentially The assertion of Karatz that he advised Sisson that it was a temporary job , in the light of the entire record, and particularly in view of the development of unanticipated and unforeseeable events relative to the return of Baker and Alm, is not credited. Kamtz acknowledged contemplating hiring Sisson full time 5 It is undisputed that Lund did not interview Sisson but did review his application, which set forth his experience. In addition , Sisson had presented a letter of recommendation from the route supervisor at Foremost, who had written that Foremost had never had "a finer employee". The particular route supervisor whose signature appeared on the letter, identified as Harold Nelson, was a personal acquaintance of Lund, whom Lund respected very highly. Karatz had talked to Foremost, inferentially to Nelson, to verify Sisson's past experience DARIGOLD DAIRY PRODUCTS CO. identified as the business representative of Local 66, was advised, since Ellis also represented the milk drivers at Arden, where Sisson was employed.6 Kaintz asserted that on Friday, March 19, "we thought Mr. Sisson was going to be the fellow that we hired, and I think the question was whether everything was O.K. over there [at Arden]". Kaiiitz advised Sisson that he was to begin work on Tuesday, March 23, if a replacement at Arden could be found. Sisson was instructed to advise Arden, that Monday, March 22, would be his last day. When Sisson so advised Arden, on Saturday, he was, in turn, advised that Arden had secured a former employee as his replacement, and that Saturday would be Sisson's last day, since if Sisson worked on Monday night, at Arden, he would not be able to commence work on Tuesday morning for Consolidated. The same day, Sisson received a telephone call from Andy Erickson, supervisor of the ice cream department, and the employees represented by Respondent Local, who inquired relative to the size of the uniform which Sisson would need, and who advised Sisson that he was glad to have Sisson join his workforce. Kaintz, on March 19, also advised the Union, pursuant to the provisions of the collective-bargaming agreement, of its selection of Sisson, a member of Local 66. About 8 a.m., on March 19, the Union's business agent, Leonard Newsham, advised Kamtz that Consolidated could not hire Sisson, that if they did so the Union would take economic action by placing pickets at the various plants of Consolidated. Kaintz responded to Newsham by advising that Kaintz would advise Kaintz' superior, identified as Mr. Meyers. Later, the same day, Newsham advised Meyers that Newsham would send a third applicant. Meyers agreed to postpone the hiring of Sisson, pending the interview of the .third applicant, who was supposed to appear on the evening of March 19, but in fact did not appear until March 23. Kaintz asserted that Newsham stated the reason the Union did not want Consolidated to hire Sisson was "because he [Newsham] wanted one of the people from Local 174 to have the job".7 Asked if he advised the Union why he wanted to hire Sisson, Kaintz responded that he did not get a chance to supply this information. Kaintz advised Sisson that Sisson's employment would have to await the interview of the third union referral, then scheduled for March 19. Kaintz acknowledged that on Monday, March 22, he advised Sisson to report for work on Tuesday, March 23, and that a uniform was made up for Sisson. At the same time Sisson was notified that he would have to transfer into Local 174. Sisson related that, pursuant to the instruction of Kaintz, Sisson went to Local 174 on Monday, March 22, where an office employee gave him an application for a transfer, which he filled out. The employee then advised Sisson that the application had to be approved by one of the business agents. Sisson provided her with his telephone number. These events occurred at approximately 10 a.m. On the evening of Monday, March 22, Kaintz advised 6 It is reasonable to infer that it was Ellis who arranged for the replacement of Sisson at Arden's. 7 Newsham did not appear as a witness. This testimony stands undisputed and is credited. 11 Neither Cavano nor Newsham appeared as witnesses No explanation 705 Sisson that Kaintz was having trouble with the Union relative to the transfer of Sisson and requested that Sisson "take it easy" while they resolved the problem "because there was no problem with the transfer, it was on the hiring". Sisson returned to the union office, on March 31, and talked to Newsham. Sisson explained to Newsham that he needed a transfer to work at Consolidated. Newsham responded that, "First I [Sisson] had to have a job". Sisson responded that he did have a job. Newsham repeated his statement that Sisson had to have a job. Sisson thanked him and went to Local 66 and paid his dues. Sisson has not heard further from Kaintz, Consolidated, or the Union. Kaintz related that there was a meeting between Consolidated officials and union representatives in the office of Cavano on April 8. Those present representing Consolidated included Les Jenne, labor relations represent- ative, Gordon Laughlin, economist, and Kaintz. Cavano and Newsham represented the Union. The purpose of the meeting was a discussion of Consolidated's decision to hire Sisson rather than one of the Union's referrals. Kaintz credibly related that Cavano asserted that if the Company did hire Sisson no trucks would go out .8 Kaintz related that Baker returned to work on Monday, March 22. It appears his ailment has not been a hindrance to his performance of his duties since that time. Two weeks later, on Monday, April 5, Alm returned to duty. Kaintz asserted that Alm advised that what had been diagnosed as a disc problem turned out to require no more than the removal of a cyst. Kaintz acknowledged that it was the first of April before he was advised that Alm's condition was not as serious, in terms of essential period of recuperation, as initially indicated. Kaintz acknowledged that no one had been hired, or transferred, into the delivery unit in the ice cream department, since March 22. Kaintz acknowledged that overtime, in the summer, particularly July and August, normally approximates 5 percent, in the ice cream department, and in past years, with the exception of 1970, Consolidated has hired extra help during such periods. This year the overtime has approximated 10 percent. Kaintz asserted Sisson would have been employed by Consolidat- ed, during the period of this excessive overtime, had it not been for the Union's objection. While Kaintz denied advising Sisson that the job would last at least until September, I have credited Sisson's assertion that he was so advised. Kaintz did relate that he felt, if they had any break in the weather, that it was possible that Sisson would be kept on "during the summer". I find, in the light of this record, that in the parlance of the parties, in the ice cream business, Labor day, which is September 6, is considered the end of the summer. Concluding Findings I have found that, on March 19, Kaintz advised Sisson to report for work on Tuesday, March 23, and to advise his was made of the failure of the Union to call them. While Kaintz related that at the time of prior vacancies employees were transferred from Local 66 to Respondent Union, it is unclear in the record whether this fact was mentioned on April 8. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then employer, Arden, accordingly, so Arden could make arrangements for a replacement. At the same time Kaintz advised Bud Ellis, business representative of Local 66, who represented the milk drivers at both Arden and Consolidat- ed, of the decision Kaintz had made relative to Sisson, so that Ellis could assist Arden in the obtaining of a replacement for Sisson. These facts, together with the forthwith obtaining of a uniform for Sisson, reflect the importance Kaintz attached to the prompt execution of his decision to hire Sisson. In view of the anticipated hospitalization of both Baker and Alm such precipitate haste is understandable. Only the threat of Newsham to picket Consolidated, because Newsham wanted a member of Local 174 to have the job, prevented employment of Sisson. I find Respon- dent Consolidated knew that membership in the Union was not available to Sisson on the same terms and conditions available to other members, and knew that Sisson was denied membership for reasons other than the failure to tender periodic dues and initiation fees uniformly required. The effort of Sisson to obtain the requisite transfer from Local 66 to Local 174, on March 22, and again on March 31, met with the advice of Newsham that Sisson first had to have a job, which is otherwise translated to mean that Newsham and Cavano did not approve of the selection, by Consolidated, of anyone who was not already a member of Local 174. The meeting of April 8, and the threat of Cavano, at that time, to picket all of the plants of Consolidated, if Sisson was hired, merely added emphasis to preceding events. The statements of Cavano, made on April 8, as well as the statements of Newsham, on March 19, to Kaintz and others, were clearly the reasons for the failure of Consolidated to consider the employment of Sisson thereafter. In other words, the Union caused Consolidated to discriminate against Sisson, who was refused membership in Respondent Local for reasons other than a failure to tender dues and initiation fees. This conduct is precisely what Section 8(b)(2) proscribes. The contention of Consolidated, in its brief, that its failure to hire Sisson was due to a dispute arising over the application of the collective-bargaining agreement is without substance and without merit. The same conclusion applies to Consolidated's contention that the unexpected return of Alm, on April 5, modified its discriminatory conduct, which had occurred on March 19 and March 22. The assertion that Sisson was not hired during the summer because "the hearing in the, present case was set" is patently frivolous, and in willful disregard of the threats of Cavano and Newsham. Newsham's threat was the sole reason for the failure of Consolidated to employ Sisson on March 23. Consolidated had complied with the provisions of article II of the collective-bargaining agreement by notifying the Union, on March 19, of its anticipated employment of Sisson. Similarly, Consolidated complied with the require- ments of article IX.D. when, during the week of March 14, 9 Reinforcing Iron Workers, Local Union No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Tryco Steel Corp), 192 NLRB No 1, General Teamsters Local 439, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, (Los Angeles-Seattle Motor Express, Inc), 172 NLRB No. 231, Rust Engineering Company, 183 NLRB No 76, enfd. 445 F.2d 172 (C.A 6) (July 15, 1971), Local Union No 2, of the United Association of it advised the Union to nominate applicants. Nothing in the cited articles required Consolidated to confine its selection to individuals nominated by the Union. The contract provisions do not equate a hiring hall. What the Union sought to accomplish, in fact, is in direct conflict with the last portion of the last article which provides: No applicants shall be preferred or discriminated against because of their membership or nonmembership in the Union. I find accordingly. There are numerous Board decisions, with court approval, which find that the conduct of the Union herein, in insisting that Consolidated employ one of its members, is violative of the provisions of Section 8(b)(2) and (1)(A) of the Act. Section 8(a)(3) proscribes discriminating to encourage membership in any labor organization, particu- larly where an employer has reasonable grounds for believing that membership in a union was denied for reasons other than failure of an employee to tender periodic dues and initiation fees uniformly required as a condition of acquiring or attaining membership. It follows that Consolidated's failure to employ Sisson was discriminatori- ly motivated and violative of the provisions of Section 8(a)(3) and (1) of the Act .9 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Consolidated set forth in section I, above, having a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent Teamsters General Local 174, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, has engaged in certain unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act, and having found that Respondent Consolidated Dairy Products Company has engaged in certain unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I will recommend that each cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Consolidated advised Robert H. Sisson that he would be employed commencing March 23 for a period extending at least until September, at which time Kaintz would see "what happens after that". I am unable to translate this into a firm assurance of employment after September 6. The purpose of the Act is not to inflict a penalty, but rather to seek to restore, or establish, the status quo ante. Accordingly, I recommend Journeymen and Apprentices of the Plumbing and,Pipefitting Industry of the United States and Canada, AFL-CIO, (Astrove Plumbing & Heating Corp), 152 NLRB 1093, enfd. 360 F.2d 428 (C.A. 2); Local Union No 55, and Carpenters District Council of Denver and Vicinity (Professional and Business Men's Life Insurance Company), 108 NLRB 363, 371-373, enfd. 218 F.2d 226 (C A 10); Denver Building and Construction Trades Council (Henry Shore), 90 NLRB 1768, enfd. 192 F.2d 577 (C.A. 10). DARIGOLD DAIRY PRODUCTS CO. that Respondent Consolidated offer Robert H. Sisson employment as a wholesale or interplant driver, in either the ice cream department or the milk department, subject, nevertheless, to the following conditions. At the time of hearing, on August 5, it appeared undisputed that the normal complement of drivers in the ice cream department unit was comprised of nine individuals and one supervisor, both prior to March 14 and on and after April 5, i.e. following the return of Baker and Alm, however, Kaintz acknowledged Sisson would have been employed during the summer absent the objection to his employment by the Union. I do not find credible the implication of Kaintz that if Sisson had been permitted to commence working on March 23, he would not have been retained until September. The purpose of this recommendation is to afford Sisson with placement in the event there has been a vacancy in the complement of drivers, in either department, at any time prior to the effective date of this recommenda- tion. In the alternative, in the event there have been no vacancies, in terms of essential driver personnel, in either department, it is recommended that Respondent Consoh- dated be required to establish a preferred hiring list, and place the name of Robert H. Sisson at the top of such list, for the purpose of offering employment to him whenever such a vacancy may occur, in either department, and to continue Sisson on such a list until such time as a vacancy does occur in the ice cream department, even if Sisson, meanwhile, is placed in a position in the milk department. In addition, I will recommend that Respondent Consoli- dated and Respondent Local, jointly and severally, make Robert H. Sisson whole for any loss of pay he may have suffered, from March 23 to and including September 6, by reason of the discrimination against him, without prejudice to his right to establish that he would have been retained beyond September 6, if such be the fact, in a, supplementary proceeding. Said loss of pay shall be based upon the earnings Sisson would have earned between the dates indicated, less net earnings during said period. Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest on back pay shall be computed in the manner set forth in Isis Plumbing and Heating Co., Inc., 138 NLRB 716. It is also recommended that Respondent Consolidated be ordered to make available to the Board, upon request, payroll and other records to facilitate checking of the amount of earnings due. In view of the nature of the unfair labor practices committed the commission of similar unfair labor practices may be reasonably anticipated. I shall therefore recom- mend that Respondent Consolidated and Respondent Local be ordered to cease and desist from in any like or related manner infringing upon rights guaranteed to its employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent Consolidated Dairy Products Company 10 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and Recommended Order herein 707 is an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Teamsters General Local 174 is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Robert H. Sisson, in regard to his hire and tenure of employment, Respondent Consolidated 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 Respondent Consolidated to discriminate against Robert H. Sisson, and by restraining and coercing Robert H. Sisson in the exercise of rights guaranteed in Section 7, Respondent Local has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 10 1. Consolidated Dairy Products Company, d/b/a Dangold Dairy Products Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Encouraging membership in Teamsters General Local 174, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, by discriminating against any employee, or applicant for employment, in regard to his hire or tenure of employment, or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees, in the exercise of the right to self-organization, to form labor organizations, to join or assist the above named Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right 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 bythe Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer to Robert H. Sisson immediate employment without prejudice to seniority and other rights and privileges he would have enjoyed had he been employed on March 23, or, in the event no vacancy presently exists, and no employee has been hired as a wholesale or interplant driver in either the ice cream department or the milk department, since March 23, establish a preferred hiring list shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and place the name of Robert H. Sisson at the top of said list. In such latter event, Robert H. Sisson is to be offered employment at such time as a vacancy may occur in either department, subject to a transfer into the ice cream department, when a vacancy in that department shall occur. (b) Respondent Consolidated shall make Robert H. Sisson whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him in accordance with the recommendations set forth in "The Remedy" herein. Said liability shall be joint and several with the Respondent Local. (c) Preserve and make available to the Board or its agents, upon request, for inspection and reproduction, all payroll records, Social Security reports, timecards, person- nel files, and all other records necessary to analyze, compute, and determine the amount of back pay to which Robert H. Sisson may be entitled under the terms of this Trial Examiner's Decision. (d) Post at its place of business in Seattle, Washington copies of the notice attached hereto marked "Appendix A".11 Copies of said notice, on forms to be furnished by the Regional Director for Region 19, shall, after being duly signed by an official representative of Consolidated, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Consolidated to insure that said notices are not altered, defaced, or covered by any other material. II. Teamsters General Local 174, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, representatives, successors, and assigns shall: 1. Cease and desist from: (a) Causing, or attempting to cause, Consolidated Dairy Products Company, d/b/a Darigold Dairy Products Company, or any other employer within its jurisdiction, to discriminate against Robert H. Sisson, or any other employee, in violation of the proscriptions of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing 11 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a judgement of the United States Court of Appeals enforcing an order of the National Labor Relations Board". employees in the exercise of the rights guaranteed in -Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Notify Consolidated Dairy Products Company, d/b/a Darigold Dairy Products Company, in writing, that it has no objection to the employment of Robert H. Sisson, as a wholesale or interplant driver, that it will not cause or attempt to cause said employer to discriminate against Robert H. Sisson, or any other employee, because he is not a member of Local 174, except to the extent that membership may be required as a condition of employment under the terms of a collective-bargaining agreement, made as authorized in Section 8(a)(3) of the Act. (b) Jointly and severally with Respondent Consolidated make whole Robert H. Sisson for any loss he may have suffered commencing March 23 and ending September 6, as provided in the remedy herein. (c) Post at its meeting hall and dispatch office copies of the notice attached hereto marked "Appendix B".12 Copies of said notice on forms to be provided by the Regional Director for Region 19, shall, after being duly signed by its authorized officer or representative, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including each of the Union's bulletin boards, and all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish signed copies of said "Appendix B" to said Regional Director for posting at the places where notices of Respondent Consolidated to its employees are posted, if said Respondent Consolidated is willing so to do. III. Each Respondent shall notify the Regional Direc- tor of Region 19, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision what steps each has taken to comply therewith. It is further recommended that unless Respondent shall, within 20 days from the date of the receipt of this Trial Examiner's Decision, notify said Regional Director, in writing, it will comply with the foregoing recommended Order 13 the National Labor Relations Board issue an Order requiring each Respondent to take the action aforesaid. 12 See In. 11, supra 13 In the event that this recommended Order be adopted by the Board this provision shall be modified to read "Notify said Regional Director, in writing, within 20 days from the date of this Order what steps each Respondent has taken to comply therewith".