Tid-Bit Products Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tid-Bit Products Company, Division of Fairmont Foods Company and Rosemary Bogden Meat Cutters District Union 427, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Rosemary Bogden. Cases 8-CA- 10355 and 8-CB-3150 December 5, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 22, 1977, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,l and conclusions of the Administrative Law Judge, to modify his remedy so that interest is computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recommended Order, as modified.3 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Tid-Bit Products Company, Division of Fair- mont Foods Company, Cleveland, Ohio, its officers, agents, successors, and assigns, and Respondent Meat Cutters and Butcher Workmen of North America, AFL-CIO, its officers, agents, and repre- sentatives, shall take the action set forth in said recommended Order, as so modified: 1. Substitute the following for paragraph A, I(b): "(b) In any other manner interfering with, restrain- ing, or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act." 2. Substitute the following for paragraph B, I(d): "(d) In any other manner restraining or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act." 3. Substitute the attached notices for those of the Administrative Law Judge. 1 Respondent Meat Cutters District Union 427 has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions 233 NLRB No. 150 with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In the section of the Administrative Law Judge's Decision entitled "The Remedy" he inadvertently found that Bodgen was unlawfully laid off on January 30, 1976, instead of on the correct date of July 30, 1976, and ordered that she be made whole from that incorrect date. We hereby correct such inadvertency by finding that backpay shall accrue from July 30, 1976. 2 See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962). 3 In his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner," rather than the broad injunctive language, "in any other manner," which the Board traditionally provides in cases involving serious 8(aX3) discriminatory conduct. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975). Accordingly, we shall modify the Administrative Law Judge's recommended Order and notices. 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 Meat Cutters District Union 427, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, by posting employees jobs or other- wise discriminating against them with respect to their hire or tenure of employment for reasons prohibited by Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL offer to Rosemary Bogden immediate and full reinstatement to the job of lab tester or, if that job no longer exists, to a substantially equivalent position, with the right to claim and be given the job of lab tester if and when such job again exists, without prejudice to her seniority or other rights or privileges, and, jointly and several- ly with the above-named Union, make Rosemary Bogden whole for all wages lost as a result of the discrimination against her, plus interest. TID-BIT PRODUCTS COMPANY, DIVISION OF FAIRMONT FOODS COMPANY 972 TID-BIT PRODUCTS COMPANY 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 Tid-Bit Products Company, Division of Fairmont Foods Company, to post employees' jobs or otherwise discriminate against employees with respect to their hire or tenure of employment because they present grievances or engage in other activity protected by the Act, nor will we threaten employees with reprisals because they present grievances or engage in other activities protected by the National Labor Relations Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them by the Act. WE WILL notify Tid-Bit Products Company, Division of Fairmont Foods Company, in writing, with a copy to Rosemary Bogden, that we have no objection to her full reinstatement as lab tester, or to a substantially equivalent job if the lab tester job no longer exists. In the latter case, she will also have the right to the first lab tester job that is established, if and when it is. WE WILL, jointly and severally with the above- named Company, make Rosemary Bogden whole for all wages lost as a result of the discrimination against her, plus interest. MEAT CUTTERS DISTRICT UNION 427, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This consolidated proceeding was heard before me at Cleveland, Ohio, on February 17, 1977, pursuant to charges filed on August 6, 1976, by Rosemary Bogden and a consolidated complaint issued on October 29, 1976, and amended at hearing. The complaint alleges that Meat Cutters District I The facts set forth herein are based on a synthesis of the credited aspects of the testimony of all witnesses, the exhibits, and careful consideration of the logical consistency and inherent probability of the facts found. Although I may not, in the course of this decision, advert to all of the record testimony or documentary evidence, it has been carefully weighed and considered and to the extent that testimony or other evidence not mentioned herein might appear to contradict the findings of fact, that evidence has not been disregarded but has been rejected as incredible, lacking in probative worth, surplusage, or irrelevant. 2 The contractual provisions relating tojob posting are as follows: Union 427, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, caused or attempted to cause Tid-Bit Products Company, Division of Fairmont Foods Company, herein called the Employer or the Company, to terminate or lay off Rosemary Bogden by posting her job of lab tester because Bogden had engaged in union or other protected activities. It is further alleged that the Company acquiesced and posted the job resulting in the layoff of Bogden, and thereafter refused to reinstate her to the position of lab tester because of the Union's request and/or because she engaged in statutorily protected activities. Additionally, it is alleged that the Company unlawfully threatened Bogden with discharge, and the Union made unlawful threats and other statements to Bogden. Accordingly, the complaint alleges that the Union violated Section 8(b)(XI)(A) and (2) of the Act, and the Employer violated Section 8(a)(1) and (3) of the Act. Upon the entire record, including my observation of the witnesses as they testified, and after careful consideration of the posthearing briefs by the parties, I make the following: FINDINGs AND CONCLUSIONS I. THE EMPLOYER'S BUSINESS The complaint alleges, the Company and the Union admit, and I find that the Employer maintains its principal office in Cleveland, Ohio, where it is engaged in the business of meat processing; that the Employer annually, in the course and conduct of its business operations, ships goods valued in excess of $50,000 directly from its Cleveland, Ohio, facility, to points located outside the State of Ohio; and that the Employer is, and has been at all times material to this case, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I1. THE LABOR ORGANIZATION The complaint alleges, the Company and Union admit, and I find that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Factrs Throughout the sequence of events related herein there has been a collective-bargaining agreement in effect between the Company and the Union covering employees, including Rosemary Bogden, at the Cleveland facility.2 19. All job openings are to be posted for bid for a period of one ( I ) week. 32.21 Shift Transfers. Employees within a classification shall be permitted to transfer on the basis of their classification seniority to another shift when a permanent vacancy occurs in that classification on another shift. An employee desiring a shift transfer must make a written request when the job is posted for bids. Shift transfers shall be effective on the Monday following the expiration of the posting period. Shift (Continued) 973 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about the first of January 1976,3 a lab tester quit, leaving Virginia Yenyo as the sole person in that position. The vacancy was posted for bids and Helen Slivers and Mary Jane Chanson bid for it. Chanson then withdrew her name because she did not want to accept a wage reduction to an apprenticeship rate. Slivers was selected, but after a few weeks requested a return to her former job because she could not perform the work required. The request was granted. Plant Manager Cecil Ricker then called Union Business Representative Raymond De Santis, and advised him that the Company did not want to post the job again because lab tester required skills that he did not believe any employee currently working had. He then informed De Santis that he thought Rosemary Bogden, who was the least senior employee in the plant and was then laid off from her production job, was qualified and he wanted to try her in the job. De Santis told Ricker to go ahead and try Bogden in the job without posting it and if any complaints came up from other employees about not posting the job they would handle the problem when it arose. After securing De Santis' agreement, Ricker had Rose- mary Bogden report to Ricker's office. Ricker explained to Bogden that there would be an opening as a lab tester and the Company would like her to try the job. Bogden asked him why they were offering the job without it being posted. Ricker replied that it had been posted in the past, but that had not worked out, and he had discussed the situation with De Santis and Chief Steward Belak 4 and reached agreement that it would not be posted. Ricker explained that it was felt that Bogden would be capable of handling the job and the Company would like her to try it if she would like to. Bogden assented and went to work as a lab tester on or about January 30. 1 credit Bogden's testimony that Ricker only told her that she would be working as a lab tester, and did not tell her that she would also be performing production work. Furthermore, Ricker did not tell her that the job might later have to be posted, or inform her of the conversation between him and De Santis regarding possible employee complaints. This failure to irform Bogden of the content of his conversation with De Santis convinces me that Ricker did not then contemplate any posting of the job would ever be required while Bogden occupied it, and further convinces me that De Santis did not, as he claims he did, either say to Ricker or reach an agreement with Ricker that the job would have to be posted if employees complained about it not being posted.5 Bogden proved to be a completely satisfactory lab tester and worked in the position until she was removed on or about July 30. Throughout this time all of the work she performed, with the exception of 2 single days in March or April when she worked in packing at Ricker's direction, took place in the lab. There is no competent evidence whatsoever that any employee complained about the fact transfers made under this paragraph shall not be made more often than once every four (4) months. 3 All events related in this decision occurred in 1976 unless it is specifically stated otherwise. 4 Although I am persuaded from Bogden's superior credibility over that of Ricker (who impressed me as a rather short-tempered witness given to argument with counsel, resentful of questions directed at his actions, and prone to a stated lack of recollection of significant conversations) that she Bogden was working in the lab. No grievance was ever filed over her working in the lab or the 2 days she was on the production floor. On the first of these 2 days that Bogden was directed to work in packing she went to Ricker and told him that she did not think she belonged out there because the production employees would be adverse to her working there because of her low seniority.6 Ricker retorted that it was his problem, not hers, and she should go work on the floor. She did. The second time she worked on the floor, employees were upset because she was working in production while production people with more seniority were laid off. After this episode Ricker told Bogden that she would not again be put on the floor, and she was not until after her removal from the lab tester job. According to Ricker, Chief Steward Belak complained three or four times between January and July that the Company should have posted the job. Belak's testimony in this regard under close questioning by General Counsel is most revealing. It reads as follows: Q. (By Mr. Lund) How many times did you tell the other people that the job should be posted? A. I probably said it a lot of times. Q. How many times would you guess? A. I don't know many. Q. Over what period of time? A. Over a long period of time because I believe in posting jobs. Q. So you were continually telling them? A. Not continually, no. Q. But, you were saying it over and over. How many times? A. A few times. I have said the job should be posted. Q. But, you don't have any idea how many times you said it? A. No. Q. Could you estimate? A. You can say a lot. Q. How many times did you say it? A. I don't know. Q. Would you say more than five times? A. I did not go around every day and say, "Post the job, post the job." Q. Between the first of January and July? A. Maybe two, maybe one. But, I have said it. Q. Would you say a lot of times are [sic ] only once? A. Maybe two times at the most. If I said it twice, I said it. Q. Do you have any idea when you said it? A. No, I do not. Q. Was it in the summer, winter, do you have any idea? was told Belak had agreed, it is clear that Belak was not in on the original discussion between Ricker and De Santis where the agreement was reached. 5 This conclusion is reinforced by De Santis' later testimony that when Belak told him employees were complaining he merely told her he would call a meeting and explain the situation to the members. Which he did not do. 6 All of the events herein occurred in a context of layoffs and lack of work for employees at various times, resulting in a situation where someone was on layoff each time Bogden worked in production. 974 TID-BIT PRODUCTS COMPANY A. No. I know I have mentioned the job should be posted. Significantly, the thrust of this testimony by Belak, apart from the obvious conclusion that she is given to exaggera- tion, is that her reason for making the alleged "complaints" is "because I believe in posting jobs," and not because of any employee unrest over the matter. Therefore, even if I were to accept her version, she was the complainant, not the employees. The first, and apparently only, notice of any complaint that De Santis received was from Belak, a few days before June 1, when she reported to him that some employees were complaining that Bogden was working in the packaging department while packaging department employees were laid off.7 Belak never named any specific employee complaining nor did any other witness. The Employer's records show that Bogden was laid off throughout the last 3 weeks in May and the first 3 weeks in June, therefore I cannot conclude that any employee complaints were in fact made to Belak during that period of time about Bogden working. I do conclude that her report to De Santis was not based on fact and was, at best, not accurate. When Belak made her call to De Santis, he was preparing to go to a convention and told her that he would call a meeting and explain the situation to the members when he came back. A general meeting of members was subsequent- ly held on June 30. De Santis gave a general status report to the members on union matters, and then opened the meeting for questions. No one raised the question of Bogden's seniority, and there is no evidence that the alleged employee complaints about her working were discussed. During the meeting, Bogden stated that she thought she was entitled to a progression raise. De Santis advised her that if she didn't get it, and thought she was due one, that she should file a grievance. Bogden then asked if equalized overtime applied in the lab.8 This question grew out of a situation in the lab where either Yenyo or Bogden had to come in at 6:30 a.m. on Monday to do certain pretesting before plant operations started. On occasion Bogden worked past 3 p.m., which was the scheduled quitting time for the lab. Production Manager Conway told her to leave and that she was not to get overtime. On the other hand, Yenyo worked until 3:30 p.m. on the days she came in at 6:30 a.m., and got paid for one- half overtime. Yenyo has lived with Belak for 12 or 13 years and rides to and from work with her. Belak gets off work at 3:30 p.m., and the Company allowed Yenyo to work a one-half hour overtime rather than just sit waiting for Belak. I As noted earlier. I find Bogden only worked 2 days on the floor in March and April. 8 The collective-bargaining agreement provides for overtime equalization by departments or classifications. I Bogden was an impressive witness who testified in a straightforward. careful, and convincing manner with no appearance of concealment or evasion of the truth. Belak appeared to me as an aggressive person inclined to get angry and argue on the slightest provocation. Furthermore, her testimony was laden with exaggeration as indicated in the extract therefrom recited above. Insofar as De Santis is concerned, my impression of him at heanng was that of a thoroughly decent person trying to remain above the conflict created by Belak, while at the same time going as far as he felt he When Bogden brought up the equalization of overtime Belak told her to shut her mouth, that Bogden had no right to open her mouth in the union meeting, and that she had no right to be in the lab. Bogden responded that that was not the question and if Belak didn't like her in the lab she should have done something about it during her probation- ary period not 5 months later. De Santis spoke up and agreed that overtime should be equalized. After the meeting ended, Bogden waited around to talk to De Santis about her grievance. Belak came up to her and said, "I'm going to get you for this." Belak conceded telling Bogden she should not be raising a problem because she should not be working. She gave conflicting testimony as to whether or not she gave low seniority as a reason. Belak denied telling Bogden that she was going to get her, and De Santis said he did not hear Belak say this but, as set forth above, testified there was no discussion at the meeting of Bogden's seniority. I credit Bogden that Belak did tell her to shut her mouth, that she had no right to open her mouth at the meeting, and that Bogden had no right to be in the lab. I further credit Bogden that Belak did say, "I'm going to get you for this." 9 On July 9, Bogden requested and received a grievance from Belak which she completed and signed. Belak also signed it as steward. Bogden then took the grievance to Ricker who suggested to her that the grievance, which concerned her claim for a progression raise, be settled outside the grievance procedure. Bogden expressed an opinion that it could not be and said she wanted to file the grievance. Ricker said he would discuss it and Steward Belak should be present. Belak and Quality Control Manager Jim Dale joined them.10 During the discussion Belak opined that she did not think Bogden was entitled to the increase and a similar grievance by another employee had not been successful in the past. At the end of this discussion, Ricker mentioned that he was pretty sure the lab tester job would have to be posted. When Bogden asked him the reason, Ricker told her that the Union was forcing him to post it because of employee complaints. Following the meeting, Bogden canvassed a number of employees who worked in production as to whether they wanted the lab tester job posted. None of them answered that they did. On July 14 or 16, Ricker, De Santis, Belak, and Bogden met to discuss the grievance. According to Bogden, she was relating her feelings about her entitlement to the progres- sive raise when Belak screamed at her, "You're a damn liar, shut up, don't talk like that." Thereupon, Bogden told Ricker and De Santis that she didn't use that type of language and didn't think she should be talked to in that manner. To which Ricker replied, "Oh, Miss Goody conscientiously could to respect his obligation to support the Union's position. 'o I am persuaded there was such a meeting on July 9 as Bogden states. Ricker does not deny the meeting was held and was not asked about it. Belak's denial that there was any meeting other than the July 14 or 16 meeting, and her claim that De Santis got involved in the first step of grievance are contrary to De Santis' testimony that Belak had unsuccessful- ly represented Bogden in the first step prior to his becoming involved in the process. I further credit Bogden's testimony relative to what happened at the July 9 meeting because, in my opinion, she was a more credible witness than either Ricker or Belak throughout her testimony. I conclude that Ricker earlier asked Bogden to settle the grievance outside the grievance procedure. 975 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goody doesn't want to be talked to like that." Bogden testifies further that she then stated that she thought they were there to discuss the matter as adults, but it seemed that she was talking with small children, and that at this juncture De Santis told her that Belak was merely using her normal way of speaking. De Santis then said he would check the progressive raise matter out." Ricker spoke up at this point and said that he and De Santis had discussed the problem of her job posting and that it would be posted as soon as possible. According to Bogden, Belak then turned to her and said, "I never would have done any of this if you had not said that at the Union meeting," and asked Bogden if she knew that a layoff over I year meant automatic termination. Bogden replied that she was not aware of that and Belak said, "I want you to be." Ricker testified that July 14 or 16 was the first time De Santis asked him to post the job, and professed a complete lack of recollection as to what Belak said to Bogden at the meeting on July 14 or 16. As to De Santis' request to post, Ricker claims De Santis called him prior to the meeting, which was later in the day, and asked the Company to comply with the contract and post the job. De Santis testified that Belak did not at any time tell Bogden she was going to get her, or in any way indicated she was going to try to influence Bogden's continued employment on the job. Belak denies calling Bogden a liar at the meeting, or saying anything to the effect that she was going to get Bogden, or indicating that she would see that Bogden's job was posted because of grievance filing. I credit Rosemary Bogden's version of what transpired at the July 14 or 16 meeting (1) because she was clearly the most impressive witness on the matter, both in demeanor and in detailed testimony; (2) because Ricker's purported statement to her in which he referred to her as "Miss Goody Goody" was undenied and consistent with my observation of him on the stand as a somewhat sarcastic witness; (3) because I cannot believe Ricker has a complete lack of recollection regarding Belak's part in the discussion, keeping in mind Belak's penchant for argument; and (4) because the bare denials of Belak and De Santis regarding Belak's statements were general and conclusionary as opposed to Bogden's specificity. Within a day or two of the last meeting, the lab tester job was posted. Mary Jane Chanson bid on it and got it. Rosemary Bogden was then laid off on July 30 because her seniority did not entitle her to work in the plant while others were laid off. Bogden was subsequently recalled to work in packing in August, and laid off again in October for lack of work. She was thereafter recalled twice to heavy jobs which she was physically unable to handle. At the time of the hearing she had not worked since October 8. Chanson credibly testified that she was asked by Belak, prior to the time she placed a bid, if she was going to bid on the lab tester job, and told her that the job would be at her regular rate. Belak concedes she knew Chanson would take the job if she kept her rate. Bogden did not bid on the lab job. It would have been futile for her to do so in view of Chanson's superior seniority. I The grievance was ultimately denied by agreement of the Union that Bogden was not entitled to the raise. Bogden did, however, receive a raise when she was recalled from layoffon August 17. On or about September 21, after Bogden was recalled from her July 30 layoff, Quality Control Manager Dale was walking through the packaging room when Bogden called for a skid, as was the practice. Bogden avers that Dale said, "She wants a skid ha, she is going to get skidded right [out] of the door," to a nearby group of other employees as he passed by. Dale testified that he had no idea who had called for a skid, but was just joking as he said to the other employees, "Why don't we just get out of the door?" Later the same day, Bogden approached Dale and asked him why he had said that to her. He replied that he was not aware she was the one calling for the skid and was just joking with the other girls. I am persuaded that Bogden was overly sensitive to remarks like that of Dale's, whichever wording is accurate, after her recent experience of losing the lab job, and placed a connotation on his statement that it did not merit. I agree with Dale that it was just a joking remark not consciously directed at Bogden. B. Concluding Findings I find and conclude that the Employer, by its supervisor and agent James Dale, did not threaten Bogden in violation of Section 8(aXl) of the Act, and I will recommend that allegation of the complaint be dismissed. Although I have no doubt that some employees may have grumbled in March and/or April when Rosemary Bogden worked the 2 days in production, there is no credible evidence that any employee ever protested because Bogden secured her position as lab tester without it being posted. So far as the record shows, the only person who may have complained on this latter score was the Union's chief steward, Belak. De Santis attached no particular importance to Belak's unfounded report of employee unrest in late May, while Bogden was laid off. This is evidenced by his comment to Belak in late May that he would explain the situation to members when he returned from convention, and by the further fact that he held no meeting of members until June 30, a month later, at which he did not even mention the subject. I do not believe that either employee complaints or the alleged prior agreement between the Union and the Company was the reason for the posting of Bogden's job. From the foregoing I draw the inference that the reasons advanced by the Union and the Employer to justify their actions are pretexts designed to conceal unfair labor practices. After carefully balancing the evidence, I am convinced that the posting of Bogden's job had its genesis in the June 30 union meeting when she raised the question of equalization of overtime and her wage rate. Belak's anger, verbal abuse, and threats to get Bogden were precipitated by Bogden's statutorily protected activity of airing her grievances at the union meeting. This is confirmed by Belak's own words uttered during the June 30 meeting and Belak's remark to Bogden after the July 14 or 16 meeting that she would not have done "any of this" if Bogden had not made her statements at the union meeting. This is a clear admission that she had done what she had earlier threatened on June 30 when she said "I'm going to 976 TID-BIT PRODUCTS COMPANY get you for this." This, without more, is ample to compel a conclusion that Belak was in fact the person insisting on the job posting which clearly would cause Bogden to be laid off if anyone senior bid, and that her actions were illegally motivated. Belak took care to assure that Chanson would bid, and thus cut Bogden off and perfected her threat to "get" Bogden. De Santis was aware of Belak's hostility toward Bogden, took no action to rebuke or restrain her either at the June 30 union meeting or the meeting with Ricker on July 14 or 16 when Belak verbally abused Bogden, and condoned her words and actions by joining with her to secure the posting of Bogden's job. Both well knew that this would cause Bogden to be laid off. Furthermore, Belak's reminder to Bogden that she would be automatically terminated if she was laid off long enough clearly reveals the Union's wish to get rid of Bogden altogether as well as the depth of Belak's hostility toward Bogden. Both De Santis and Belak were agents of the Union at all times material, and any contention that the Union is not liable for their acts because they may have been acting outside the scope of their agency at the time is totally without merit.12 I therefore conclude and find that the Union, by its agents Lois Belak and Raymond De Santis, attempted to cause and did cause the Employer to discriminate against Rosemary Bogden by posting her job for bids, and thereby violated Section 8(b)(1)(A) and (2) of the Act. I further find that the Union, by its agent Lois Belak, violated Section 8(b1( )(A) of the Act, on June 30, by threatening Rosemary Bogden with reprisals because she engaged in the protected activity of presenting grievances at a union meeting, and by restraining and coercing Rosemary Bogden, on or about July 14 or 16, in the exercise of her Section 7 rights, by telling her that the Union had caused her job to be posted because she had engaged in protected activities at the Union meeting of June 30. Bogden credibly testified that she had brought the problem of equalization of overtime to Ricker's attention prior to the June 30 union meeting, and that Ricker told her that he could do whatever he wanted to do with Bogden and work her overtime or not, as he pleased. This response by Ricker is consistent with his hostile reaction to questions posed to him on the witness stand requiring him to explain his actions. Thereafter, he displayed his hostility toward Bogden by his intemperate and immature belittle- ment of her protest when Belak verbally abused her at the July 14 or 16 meeting. I am persuaded that Ricker was quite willing to agree to post the lab tester job when De Santis requested it, because Bogden had the temerity to question his practices and the posting would rid him of her even though he concedes her work was entirely satisfactory and had earlier represented to the Union that he had no one else in the plant capable of the job.'3 For the foregoing reasons I am convinced that Ricker was, at least in part, motivated by a desire to rid himself of an employee who asked him to comply with the contrac- 12 See Highway and Local Motor Freight Enmployees Local Union No. 667, 228 NLRB 398 (1977). ia How Bogden's replacement, Chanson, who was working in the plant at tual requirement of overtime equalization. That Bogden's request was statutorily protected activity is so evident as to render citations of legal authorities superfluous. When, therefore, the Union, whom Ricker well knew to be hostile to Bogden from Belak's comments in his presence which he conveniently does not recall, requested him to post the job he gladly complied. This submission to the Union's unlawful demands is plainly violative of Section 8(a)(3) and (I) of the Act. IV. THE REMEDY Inasmuch as I have found that the Respondent Union has engaged in unfair labor practices violative of Section 8(b)(IX)(A) and (2) of the Act, and that the Respondent Employer has engaged in unfair labor practices in violation of Section 8(aX1) and (3) of the Act, I shall recommend that each be required to cease and desist from its respective unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. In accordance with my findings that the Respondent Employer discriminatorily posted Rosemary Bogden's position of lab tester, with the clearly foreseeable result that she would be laid off, in violation of Section 8(aX3) and (I) of the Act, and that the Respondent Union caused this discrimination in violation of Section 8(bX2) and (I)(A) of the Act, I shall recommend that the Respondent Employer be ordered to reinstate Rosemary Bogden to the position of lab tester, replacing if necessary any incumbent in that position other than Virginia Yenyo, or a substantial- ly equivalent position if that job no longer exists, without prejudice to her seniority or other rights and privileges. In addition, I shall recommend that, if the lab tester job Rosemary Bogden occupied no longer exists, the Respon- dent Employer be ordered to grant Rosemary Bogden first preference for a lab tester job, if and when one is again established. I shall further recommend that the Respondent Union be ordered to notify the Respondent Employer in writing, with copy to Rosemary Bogden, that it has no objection to the full reinstatement of Rosemary Bogden to the job of lab tester or a substantially equivalent job if the lab tester position no longer exists. Furthermore, in view of the fact that Rosemary Bogden would not have been laid off on January 30, 1976, but for the discrimination against her, I shall recommend that the Respondent Union and the Respondent Employer be ordered, jointly and severally, to make Rosemary Bogden whole for all wages lost by her from January 30, 1976, until such time as she is offered unconditional reinstatement in the manner set forth above. The amount of backpay due Rosemary Bogden shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest computed thereon at 6 percent in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: the time Ricker made this representation, suddenly became capable is not explained in the record. 977 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent Employer is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating against Rosemary Bogden as found above, the Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By attempting to cause and causing the Respondent Employer to discriminate against Rosemary Bogden in violation of Section 8(a)(3) of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(I)(A) and (2) of the Act. 5. By the statements of its agent Lois Belak on or about June 30, 1976, and on or about July 14 or 16, 1976, the Respondent Union restrained and coerced employees in the exercise of their Section 7 rights and thereby violated Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record of this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 A. The Respondent Employer, Tid-Bit Products Com- pany, Division of Fairmont Foods Company, Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in the Respondent Union by causing employees' jobs to be posted or otherwise discriminating against employees with respect to their hire or tenure of employment in any manner not authorized by the union membership requirement provisions of Section 8(a)(3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative actions which I find necessary to effectuate the purposes of the Act: (a) Reinstate Rosemary Bogden to the position of lab tester, or to a substantially equivalent position if that job no longer exists, in which latter case additionally give her first preference for the job of lab tester, if and when one is reestablished. (b) Jointly and severally with the Respondent Union make Rosemary Bogden whole for all wages lost by her, in the manner provided in the section above entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examining and copying, all payroll 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. records, social security records, timecards, and other records relevant to a determination of any right of reinstatement and amount of backpay due under this Order. (d) Post in conspicuous places at the Respondent Company's place of business in Cleveland, Ohio, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A."'5 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by an authorized representative of the Respondent Company, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in such conspicuous places. Reasonable steps shall be taken by the Respondent Company to ensure that the notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. The Respondent Union, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Causing or attempting to cause the Respondent Employer to post the jobs of employees or to otherwise discriminate against employees with respect to their hire or tenure of employment in any manner not authorized by the union membership requirement provisions of Section 8(a)(3) of the Act. (b) Threatening employees with reprisals because they present grievances at union meetings. (c) Telling employees that the Respondent Union has taken reprisals against them because they had presented grievances at union meetings. (d) In any like or related manner restraining or coercing any employee in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative actions which I find will effectuate the purposes of the Act: (a) Jointly and severally with the Respondent Employer make Rosemary Bogden whole for wages lost as provided above in the section entitled "The Remedy." (b) Notify the Respondent Employer in writing, with copy to Rosemary Bogden, that the Respondent Union has no objection to the full reinstatement of Rosemary Bogden to the job of lab tester, or a substantially equivalent position if that job no longer exists. (c) Post in conspicuous places, including places where notices to members are customarily posted, and its usual membership meeting place, copies of the attached notice marked "Appendix B." 16 Copies of said notice on forms provided by the Regional Director for Region 8, after being signed by a duly authorized representative of the Respondent Union, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the is 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 16 See fn. 15, supra. 978 TID-BIT PRODUCTS COMPANY Respondent Union to ensure that said notice is not altered, defaced, or covered by any other material. (d) Forthwith mail copies of said notice marked "Appendix B" to said Regional Director after the copies have been signed as provided above for posting by the Respondent Company, if it so agrees. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. 979