Dairylea Cooperative Inc.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dairylea Cooperative Inc. and Richard W. Rosen and Milk Drivers & Dairy Employees, Local 338, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract. Milk Drivers & Dairy Employees, Local 338, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Rich- ard W. Rosen. Cases 2-CA-12850 and 2-CB-5271 July 29, 1975 DECISION AND ORDER further hearing with respect to certain specified mat- ters and for further consideration and issuance of a decision by Administrative Law Judge Goerlich. However, by order dated January 16, 1975, the case was returned to the Board upon the basis of a further stipulation and agreement of the parties waiving con- sideration by the Administrative Law Judge. There- after, the General Counsel and Respondent Union filed additional briefs with the Board. The Board has considered the entire record in this case, including the parties' briefs, and makes the fol- lowing findings and conclusions: Upon charges filed on January 9, 1973,' by Rich- ard W. Rosen, an individual, the Regional Director for Region 2 of the National Labor Relations Board, acting on behalf of the General Counsel of the Board, issued a consolidated complaint on Septem- ber 19, 1973, amended on September 26, alleging, inter aka, that the Respondent Company, Dairylea Cooperative Inc., violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), and the Respondent Union, Milk Drivers & Dairy Employees, Local 338, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, violated Section 8(b)(2) and (1)(A) of the Act.2 The Respon- dents filed answers to the complaint in which they admitted certain allegations of the complaint and de- nied others, including all those charging them with the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Ad- ministrative Law Judge Lowell Goerlich on Novem- ber 26 and 27, 1973, and on February 21, 1974. At the hearing certain exhibits were placed in evidence, but no witnesses testified. However, the General Counsel and Respondents entered into a stipulation, placed into evidence as an exhibit, in which they agreed to certain amendments to the complaint and to Respondents' answers, and in which they agreed upon certain facts relevant to the issues in this proceeding. They also waived, by way of a record stipulation, findings of fact, conclu- sions of law, and issuance of a decision by the Ad- ministrative Law Judge, and agreed to submit the case directly to the Board. By order dated March 22, 1974, this proceeding was transferred to the Board. Thereafter, the General Counsel and Respondent Union filed briefs with the Board. By order dated August 30, 1974, the Board remanded the case for 1 An amended charge was filed in Case 2-CB-5271 on September 11, 1973 2 The Parties in Interest are listed in Appendix A attached hereto have recognized the Union as representing units of FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY AND PARTIES IN INTEREST The Respondent Company has been at times ma- terial a-corporation organized under the laws of the State of New York engaged, inter alia, in the sale and distribution of milk with places of business at various locations in that State and in the States of New Jer- sey and Pennsylvania. During recent annual periods typical of its business, the Company has grossed an- nual revenues in excess of $500,000 in the State of New York, of which in excess of $50,000 was re- ceived from customers located outside the State. Also during such period, it purchased goods and materials valued in excess of $50,000, directly from firms locat- ed outside the State of New York, which were fur- nished to the Company within that State. According- ly, we find that the Respondent Company is engaged in commerce within the meaning of Section (2), (6), and (7) of the Act and that it will effectuate the poli- cies of the Act to assert jurisdiction in this proceed- ing. The Parties in Interest, like Respondent Company, are engaged at various locations in the State of New York in the sale and distribution of milk and related products. The record shows that each of the Parties in Interest is engaged in commerce within the mean- ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction with respect to their operations. 11. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent Company and Parties in Interest 219 NLRB No. 107 DAIRYLEA COOPERATIVE, INC. essentially all their milk processing and distribution employees and have entered into collective-bargain- ing agreements covering such units of their employ- ees.' These agreements provide in part that union stewards be selected by the Union and that each steward must be an employee of the location at which he is a steward. The contracts further provide that: The steward shall be considered the Senior em- ployee in the craft in which he is employed . . . . It is in effect conceded by the Union that this clause gives the steward, regardless of his length of service, top seniority not only with respect to layoff and re- call, but also with respect to all contractual benefits where seniority is a consideration. Thus, under these contracts the steward is, among other things, given preference in the assignment of overtime, in the se- lection of vacation period, and in the assignment of driver routes and other positions, with the preference extending to the selection of shift, hours, and day off. On or about December 13, 1972, Howard Rosen- grandt, a route driver, was appointed a steward at Respondent Company's Nanuet, New York, facility which has, since around 1954, been covered by the Union's metropolitan area bargaining agreement. On December 27, Respondent Company posted at the Nanuet facility a notice of bid for wholesale route 10. Seven bids were submitted, including those of Rosen- grandt and Peter J. Daniels. Rosengrandt was award- ed the route; however, it is agreed that, but for Rosengrandt's super seniority as a steward, the route would have gone to Daniels, who was senior in length of employment. During the following 9-month period, Rosengrandt received an income of approxi- mately $14,000 from his new route; Daniels received about $12,000 from his old route;4 while the other bidders all received even less on their routes. The complaint alleges that Respondent Union, by maintaining and enforcing the steward's super se- niority clauses in its contracts with the Parties in In- terest, violated Section 8(b)(1)(A) and (2) of the Act. It further alleges that the Respondent Company and Respondent Union, by maintaining and enforcing such clause and by applying it in awarding Rosen- 3 There are seven bargaining agreements with the Respondent Union in- volved in this proceeding They are listed with their signatories in the at- tached Appendix B 4 The evidence does not specify that Rosengrandt's advantage resulted from the fact route 10 was inherently more lucrative than Daniels ' old route But, as Daniels was the more senior employee and as there is no evidence he was less competent than Rosengrandt , such an explanation for Rosengrandt's income advantage would seem the most plausible one How- ever, our decision in this proceeding turns on the seniority preference ac- corded union stewards in seeking certain employment benefits and not on whether such benefits once acquired can necessarily be described in some objective sense as superior to the benefits the steward had but for his senior- ity preference. 657 grandt route 10, violated, respectively, Section 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act. In support of these claims, the General Counsel contends that, as the broad super seniority clause reserves top se- niority for stewards whom the Union appoints, it thereby unlawfully encourages union activism and discriminates with respect to on-the-job benefits, against employees who in the exercise of their rights under Section 7 of the Act prefer to refrain from such activity. The Union claims, however, that as seniority is a matter of contract-and here ratified by unit em- ployees-there can be no violation irrespective of the purpose to be served by the seniority provision. It also contends there is no basis for finding the alleged violations "in the absence of a showing of union mo- tive for the purpose of encouraging or discouraging union membership." We agree with the position taken by the General Counsel. The clause here in question gives union stewards, only because they are union stewards, pref- erence in securing a rather wide range of on-the-job benefits. This fact is not in dispute. Further, there is nothing a unit employee can do, apart from being selected a steward, to acquire such preference for himself. Hfjs actual seniority on the job avails him nothing against the steward's super seniority. Conse- quently, as the General Counsel argues, viewed real- istically the only way a unit employee can gain such preference to on-the-job benefits is to be a good, en- thusiastic unionist and thereby through such actions recommend himself to the union hierarchy for ap- pointment to the office of steward. But our dissenting colleague claims that this conclusion is based on the unwarranted, unsupported assumption that the Union rewards "good" members by making them stewards and ignores merit and ability in selecting stewards upon whom, he points out, the Union's "own continued well being and future vitality de- pend." Of course, we make no assumption that the Union would appoint stewards without regard to their capability to do the job, and there is nothing in what we have said to suggest that we do. Also, the argument of the dissent seems to imply the obvious non sequitur that being an enthusiastic unionist is somehow incompatible with having the merit and ability to carry out successfully the job of steward. If we have made an unstated assumption it is that the Union will select persons for steward who have the ability to perform the job effectively. But we add that the ability to perform effectively must include not only the technical capability, for example, to process a grievance but also a belief in and support for union policy and goals. Certainly in an area where "its own continued well being and future vitality" are at stake the Union will not turn for help to employees unin- 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terested in its success , much less to those who are opposed to it. Consequently, if we are to deal with the real world of real-and we can add rational- union officers it is obvious that an employee must be a committed unionist if he is to have a chance to acquire the broad benefit preference provided by the super seniority clause. For him to refrain from union activities-as of course he has a right to do under the Act-would be to exclude himself from ever obtain- ing such preference. Furthermore, even if we were to concede-which we do not-that union activities play no part in the Union' s selection of its stewards, they indisputably do play a decisive part in access to benefits under the clause. Thus, as in the situation here before us, an employee can be denied by his employer a job benefit he is otherwise fully entitled to solely on the ground he is not the union steward; while another employee receives that benefit he otherwise would not obtain solely because he is the union steward. Thus, even accepting the dissent's ar- gument, participating in union activities-i.e., acting as a steward, an activity even employees with merit and ability are free to forego under Section 7-is a necessary precondition to obtaining the benefit pref- erence of the disputed clause. Consequently, there can be no question but that the super seniority clause ties job rights and benefits to union activities, a de- pendent relationship essentially at odds with the poli- cy of the Act, which is to insulate the one from the other.' In reaching the above conclusion, we are aware that it is well established that steward super seniority limited to layoff and recall is proper even though it, too, can be described as tying to some extent an on- the-job benefit to union status. The lawfulness of such restricted super seniority is, however, based on the ground that it furthers the effective administra- tion of bargaining agreements on the plant level by encouraging the continued presence of the steward on the job. It thereby not only serves a legitimate statutory purpose but also redounds in its effects to the benefit of all unit employees.' Thus, super senior- ity for layoff and recall has a proper aim and such discrimination as it may create is simply an inciden- tal side effect of a more general benefit accorded all employees. It has not, however, been established in this case or elsewhere that super seniority going be- yond layoff and recall serves any aim other than the 5 See Radio Officers' Union of the Commercial Telegraphers Union, AFL [A H Bull Steamship Co I v N L R B, 347 U S 17 (1954), also Scofield v NLRB , 394 U S 423 (1969) 6 See Aeronautical Industrial District Lodge 727 v Campbell et al, 337 U S 521 (1949) Though that case did not involve the National Labor Relations Act, the relevance of the Court's reasoning therein to proceedings under the Act has been recognized by this Board See , e g, Bethlehem Steel Co (Ship- building Division), 136 NLRB 1500, 1503 (1962) impermissible one of giving union stewards special economic or other on-the-job benefits solely because of their position in the Union. That is not to say, of course, that proper justification may not be forth- coming in some future case involving particular cir- cumstances calling for steward super seniority with respect to terms and conditions of employment other than layoff and recall. Consequently, there is no oc- casion here for finding super seniority-even that going beyond layoff and recall-to be per se unlaw- ful. The issue ultimately is one of justification. How- ever, in view of the inherent tendency of super se- niority clauses to discriminate against employees for union-related reasons, and thereby to restrain and coerce employees with respect to the exercise of their rights protected by Section 7 of the Act, we do find that super seniority clauses which are not on their face limited to layoff and recall are presumptively unlawful, and that the burden of rebutting that pre- sumption (i.e., establishing justification) rests on the shoulders of the party asserting their legality. Our dissenting colleague contends, however, that it is "clearly lawful" for an employer and a union "to recognize or encourage service as a steward" and "to achieve that result by means of a seniority system." He refers to the Campbell case, cited above, to sup- port his position.' What we believe the dissent is say- ing here 8 is that an employer and a recognized union can encourage service as a steward through use of the seniority system. This we categorically deny and there is nothing in the Campbell decision, including the passage quoted in the dissent, to support such a conclusion. Campbell was not concerned with the affirmative use of a seniority system for any purpose whatsoever, much less the specific one of encouraging employees to be union stewards. Rather Campbell was con- cerned with an exception to the seniority rule, an ex- ception which could be created only through a labor- management agreement and which was found proper not because it is permissible for management and la- 7 The dissent also refers to Ford Motor Co v Huffman, 345 U S 330 (1953) In that case the union had negotiated a seniority clause that counted time in military service towards on-the-job seniority The Court found the clause lawful against claims that it improperly discriminated against nonvet- erans and amounted to a lack of fair representation with respect to them In its decision the Court pointed out that a union does have wide discretion in negotiating seniority provisions to meet various contingencies But neither in the examples of various permissible clauses or elsewhere does the Court suggest that a seniority clause can properly discriminate on the basis of union membership, office , or activity and no issue involving such discrimi- nation was before the Court Huffman is not, therefore , relevant to the issues before us 8 We are a bit puzzled by the use of "recognize" in the foregoing context Surely an employer can "recognize" union stewards , but we really never thought about a union 's recognizing its own stewards Yet we can agree that it is lawful for a union to do so However, no one is concerned here about recognition of union stewards We are also a bit puzzled by the use of "that result" because it is really not clear what result "that result" refers to DAIRYLEA COOPERATIVE, INC. 659 bor to encourage employees to be stewards but be- cause, as we pointed out above, the exception by keeping stewards on the job worked to the benefit of all unit employees and furthered-in our context here-the collective-bargaining policies of the Act. In other words, Campbell sanctioned a certain privi- lege granted stewards because it was necessary for the proper carrying out of their responsibilities, as stewards, which in turn were necessary in the appli- cation of agreements arrived at by collective bargain- ing. But there is not one word in Campbell about the legitimacy under any circumstances of giving stew- ards job benefits denied other employees for the pur- pose of encouraging employees to become and re- main stewards. We have no doubt but that stewards serve a useful purpose, but we would not describe their work as a "public service" as does the dissent. We recognize that the inconvenience and other disadvantages of being a steward may very well in some situations dis- courage employees from accepting the position, mak- ing it more difficult for a union to carry out its col- lective-bargaining responsibilities. Even so, it nevertheless remains the union's task to build and maintain its own organization, and where the imme- diate problem is simply a matter of encouraging em- ployees to be stewards a union can alone handle the situation simply by paying employees or by giving them other nonjob benefits for work in such a capac- ity. But there is no necessity or justification in such circumstances for a labor-management agreement re- quiring that rank-and-file employees, whether or not they support the union, subsidize its stewards by sur- rendering to them certain job benefits or privileges in return for the steward's union activity. In any event, there is nothing in the dissent to cause us to depart from our conclusions above that the disputed clause is presumptively unlawful and the burden is on the Union to rebut the presumption. However, the Union has not alleged, much less es- tablished, any justification for the broad reach of the super seniority clause in its various contracts with the Parties in Interest and the Respondent Company. In fact, as indicated above, Respondent Union claims (erroneously we find) that, seniority being a matter of contract, it needs no justification .9 For reasons set forth previously, we disagree. Because seniority af- fects conditions of employment there can be no real question but that it must conform to the require- 9 The purpose of the remand of this case mentioned above was , inter aha, to accord Respondent Union or any of the other parties a full opportunity to establish a proper justification for the super seniority clauses here under attack . Respondent Union made no attempt whatsoever to produce such justification but simply reiterated the position it had initially taken that no justification is necessary. Respondent Company and the Parties in Interest have taken no position on the legality of the clause. ments of the Act 10 -irrespective of its source in any agreement and even irrespective of the consent of those adversely affected. Consequently, we find that Respondent Union by maintaining and enforcing the steward super seniority clauses here in question has violated Section 8(b)(1)(A) and (2) of the Act, and that Respondent Company by maintaining and en- forcing such clause in its contract with said Union has violated Section 8(a)(1) and (3) of the Act. Fur- thermore, by according Steward Rosengrandt super seniority under the disputed clause with respect to the December 27, 1972, bidding for driver route 10 and thereby awarding that route to Rosengrandt rather than Peter J. Daniels, who would have been awarded the route but for Rosengrandt's super se- niority, Respondent Dairylea discriminated against Daniels and other employees in violation of Section 8(a)(3) and (1) of the Act, and Respondent Union thereby violated Section 8(b)(2) and (1)(A). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above and occurring in connection with Respondent Company's operations and those of the Parties in In- terest have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the sever- al States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. We have found that the steward super seniority clauses here in dispute are unlawful and we shall therefore order that Respondent Union cease and desist from maintaining and enforcing such clauses in its bargaining agreement with Respondent Com- 10 See United Steelworkers of America, and its Local 1070, AFL-CIO (Co- lumbia Steel & Shafting Company), 171 NLRB 945, 946 (1968). We also find no merit in Respondent Union 's argument that the clause cannot be found unlawful unless it is shown that the motive behind the clause was to encour- age or discourage union membership . The argument suffers on several ac- counts. First, the discrimination proscribed by the Act is not limited to encouraging or discouraging union membership. Second, the forbidden mo- tive or intent can properly be based, contrary also to a statement in the dissent, on the inherently discriminatory nature of the conduct-i.e , here the clause-in question where no legitimate purpose appears See Radio Officers' Union, supra at 41-42, 45, also N L.R.B. v. Erie Resistor Corp., 373 U S. 221, 227-229 (1963) Third, as explained above, the clause also involves illegal restraint and coercion, a basis of illegality wholly separate from the issue of discrimination. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany and in its agreements with the Parties in Inter- est. We shall also order that Respondent Company cease and desist from maintaining and enforcing such clause in its bargaining agreement with Respon- dent Union. We have also found that the unlawful super seniority clause was so applied as to deny Peter J. Daniels, on or about January 10, 1973, being awarded at Respondent Company's Nanuet estab- lishment driver route 10 which he would have been awarded but for the illegal discrimination depriving him of top seniority. Consequently, we shall order that the Respondents jointly and severally make Daniel's whole for any loss of earnings he may have sustained as a result of the discrimination against him. Backpay shall be computed in the manner es- tablished by the Board in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Also, in order to remedy fully the effects of the Re- spondents' unlawful conduct, we shall order that Re- spondent Company assign Daniels, if he so desires it, the driver route he would now hold but for the un- lawful granting of super seniority to union stewards, and that Respondent Union notify in writing both Respondent Company and Peter J. Daniels that it has no objection to assigning Daniels such route. Re- spondent Company's backpay obligation shall run from the effective date of the discrimination against Daniels to the time it makes such offer of a new route, while Respondent Union's obligation shall run from such effective date to the date of its notification to Respondent Company that it has no objection to such assignment to Daniels. Finally, we shall order that Respondent Company cease and desist in any like or related manner from interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, and that Respon- dent Union likewise cease and desist from restraining or coercing employees it represents exercising those same rights. CONCLUSIONS OF LAW 1. Dairylea Cooperative Inc. and the Parties in In- terest are engaged in commerce within the meaning of Section 2(6) of the Act. 2. Respondent Union is a labor organization with- in the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a seniority clause in its collective-bargaining agreements with the Par- ties in Interest according union stewards super se- niority for terms and conditions of employment not limited to layoff and recall, Respondent Union has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. By maintaining and enforcing a seniority clause in their collective-bargaining agreement according union stewards super seniority for terms and condi- tions of employment not limited to layoff and recall, Respondent Company and Respondent Union have engaged in, and are engaging in, unfair labor practic- es within the meaning of Section 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act, respectively, and by discriminating against Peter J. Daniels in assigning super seniority to Union Steward Rosengrandt with respect to the award of driver route 10, the Respon- dents engaged in further violations of the foregoing section of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Company, Dairylea Cooperative Inc., Nanuet, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Maintaining and enforcing collective-bargain- ing provisions with Respondent Union, Milk Drivers & Dairy Employees, Local 338, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, according union stewards super seniority with respect to terms and conditions of employment other than layoff and recall. (b) Discriminating against Peter J. Daniels or any other employee in assigning driver routes or any other term and condition of employment other than layoff and recall by according top seniority to union stewards in the assignment of such terms and condi- tions of employment where union stewards do not in fact have top seniority in terms of length of employ- ment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Union make Peter J. Daniels whole for any loss of earnings he may have suffered as a result of the discrimination against him, such earnings to be determined in the manner set forth in the section of the Decision enti- tled "The Remedy," and offer Peter J. Daniels the driver route he would now have but for the unlawful assignment of super seniority to union stewards. DAIRYLEA COOPERATIVE, INC. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay and the route assignment due under the terms of this Order. (c) Post at its establishment at Nanuet, New York, copies of the attached notices marked "Appendix C" and "Appendix D." 11 Copies of said notices, on forms provided by the Regional Director for Region 2, after being duly signed respectively by Respondent Company's and Respondent Union's representatives, shall be posted by the Respondent Company imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent Company to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. Respondent Union, Milk Drivers & Dairy Em- ployees, Local 338, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving ef- fect to those clauses in its collective-bargaining agreements with Respondent Company, Dairylea Cooperative Inc. and the Parties in Interest named in Appendix A according union stewards super senior- ity with respect to terms and conditions of employ- ment other than layoff and recall. (b) Causing or attempting to cause Respondent Company and the aforesaid Parties in Interest to dis- criminate against employees in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing the employees of Respondent Company and of said Parties in Interest in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Compa- ny make Peter J. Daniels whole for any loss of earn- 11 In the event that this 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 661 ings he may have suffered by reason of the discrimi- nation against him, such lost earnings to be de- termined in the manner set forth in the section of the Decision entitled "The Remedy." (b) Notify Respondent Company and Peter J. Daniels in writing that it has no objection to award- ing Peter J. Daniels the driver route he would now have but for the unlawful assignment of super senior- ity to union stewards. (c) Post at its office and meeting halls used by or frequented by its members and employees it repre- sents at Respondent Company's Nanuet facility cop- ies of the attached notices marked "Appendix C" and "Appendix D." 12 Copies of said notices, on forms provided by the Regional Director for Region 2, shall be posted by Respondent Union after being duly signed by Respondent Company's and Respon- dent Union's representatives, respectively, immedi- ately upon receipt thereof. Post also at its offices and meeting halls and all other places where notices are posted for its members and employees it represents, who are employees of the aforesaid Parties in Inter- est, copies of the attached notice marked "Appendix E." 13 Copies of said notices, on forms provided by the Regional Director, after being duly signed by Re- spondent Union's representative, shall be posted im- mediately upon receipt thereof. All the foregoing no- tices shall be maintained by Respondent Union for 60 consecutive days after posting in conspicuous places where notices to the above-described members and employees are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that the notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director of Region 2 signed copies of attached notice marked "Appendix E" for posting by the Parties in Interest at their places of business where their employees are repre- sented by Respondent Union and in places where notices to employees are customarily posted, if the Parties in Interest are willing to do so. Copies of said notice, on forms provided by the Regional Director, shall, after being duly signed by representatives of Respondent Union, be immediately returned to the Regional Director for such posting. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. MEMBER FANNING, dissenting: I cannot accept my colleagues' presumption that a collective-bargaining agreement distinguishing be- tween the benefits received by union stewards and :2 See In 11, supra ^3 See In 11, supra 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees in the unit the steward serves vio- lates the Act. Since there is no other basis for finding the violations attributed to the Respondents, I would dismiss the complaint. The precise origins and purpose of the agreement according superior seniority rights to stewards are unknown. For more than 30 years it was not ques- tioned; no member of the unit suggested that it be changed or eliminated; and contracts containing the agreement were ratified regularly by the bargaining unit. Evidence that stewards are selected on any basis other than ability is lacking and there is nothing to suggest that selection as a steward is a reward for supporting the Union. There is no evidence that any member of the unit has less than an equal opportuni- ty to be selected as steward, or that there is, or ever has been, any invidious discrimination in the selec- tion of stewards. The only basis for finding the agreement and its application unlawful is the factually unsupported conclusion that the agreement marginally encourages union membership or support. But, to receive the ad- vantage, the employee must be a steward. He is al- ready required to be a member under a lawful union- security clause. It cannot be asserted-not with that confidence necessary to find an unfair labor practice-that the remote and contingent benefits associated with ser- vice as a steward have any significant impact on a member's election to support the Union. Although my colleagues assume that the Union rewards "good" members by making them stewards, there is no evidence to support that assumption. Lacking any evidence, it is unrealistic to assume that the Union values an easy and self-serving enthusiasm over merit and ability in selection for a post upon which its own continued well being and future vitality depend. Nor is there any evidence that the Union's members be- lieve, or have any reason to believe, that the Union will reward "good" members in that manner. To find a violation of the law when both the ap- parent purpose and effect of an act are lawful, it is not enough that there could be some hidden and un- lawful purpose or possible unlawful effect. That hid- den purpose must be bared, the likelihood of that conjectured effect proven. I believe that we can all agree that it is unjust and unreasonable to clothe out- wardly lawful conduct with a semblance of illegality woven wholly from conjecture and supposition. The only reasonable conclusion to be drawn from the evidence, or from reasonable inference, is that the agreement encourages or rewards service as a steward. That is the apparent and only clear effect of the agreement. Under familiar principles of law, that must also be presumed to be the Respondents ' inten- tion-there is evidence of no other . Yet it is clearly lawful for an employer and the collective -bargaining representative of its employees to recognize or en- courage service as a steward . It is also lawful to achieve that result by means of a seniority system. In a case arising from the Selective Training and Service Act of 1940, 14 the Supreme Court was asked to decide whether or not a collective-bargaining agreement giving union stewards superior rights to job retention was lawful if it deprived a veteran of his job. Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521 (1949). In concluding that the agreement did not violate the Selective Service Act, the Court found its ultimate authority in the practic- es and traditions of collective bargaining: One of the safeguards insisted upon by unions for the effective functioning of collective bar- gaining is continuity in office for its shop stew- ards or union chairmen. . . . Because they are union chairmen they are not regarded as merely individual members of the union ; they are in a special position in relation to collective bargain- ing for the benefit of the whole union. To retain them as such is not an encroachment on the se- niority system but a due regard of union inter- ests which embrace the system of seniority rights. These considerations are decisive of the case. The agreements . . . represent familiar devel- opments in the process of collective bargaining which the Selective Service Act presupposes and in the context of which it must be placed... . ... A labor agreement is a code for the gov- ernment of an industrial enterprise and, like all government, ultimately depends for its effective- ness on the quality of enforcement of its code. Because a labor agreement assumes the proper adjustment of grievances at their source, the union chairmen play a very important role in the whole process of collective bargaining . There- fore it is deemed highly desirable that union chairmen have the authority and skill which are derived from continuity in office . A provision for the retention of union chairmen beyond the routine requirements of seniority is not at all un- common and surely ought not be deemed arbi- trary or discriminatory. [337 U.S. 521, 527-528.] It is unrealistic, at least it is odd, to accord less weight to the practices of collective bargaining under the statute Congress designed to encourage it than in 14 So far as is relevant here, the Selective Service Act protects the seniority rights of veterans upon their return after leaving their jobs to enter military service. DAIRYLEA COOPERATIVE, INC. 663 determining a similar issue under the Selective Ser- vice Act. A provision encouraging service as a steward "surely ought not to be deemed arbitrary or discrimi- natory." That in the one case the loss of a steward would have resulted from a literal construction of "seniority" and an act of Congress-though the same might be said here-and not at the steward's choice is unimportant. A unit without a steward is nonethe- less without a steward. That is a fact, and debating etiology is not likely to change it. Establishing seniority on the basis of service on behalf of the unit-as recognition rather than en- couragement-has also been sanctioned by the Su- preme Court, and its exercise need not be limited to job retention. Seniority rules governing promotions, transfers, layoffs and similar matters may, in the first in- stance, revolve around length of competent ser- vice. Variations acceptable in the discretion of bargaining representatives, however, may well include differences based upon . . . time or la- bor devoted to related public service, whether civil or military, voluntary or involuntary. [Ford Motor Co. v. Huffman, 345 U.S. 331, 338-339.] That service as a steward is "public service" in the context of the National Labor Relations Act is unde- niable. Should doubt nonetheless exist, it should be exorcised by Campbell, supra. And it is difficult to discover "service" which can be related more directly to the interests of a bargaining unit than as steward in the selfsame unit. The National Labor Relations Act expresses a public policy encouraging and fostering collective bargaining and, as part of that policy, comprehends encouraging or recognizing service as a steward. "Nothing in the National Labor Relations Act, as amended, so limits the vision and action of a bar- gaining representative that it must disregard public policy.... " Huffman, supra at 342. I see no reason why our vision should be more limited. As there is no evidence of any discrimination in the selection of stewards, and no basis for concluding that measuring seniority, in the first instance, by ser- vice to the unit as steward violates the Act as a mat- ter of law-precedent and logic both pointing in quite the opposite direction-there is a clear failure of proof of any violation of the Act. I would dismiss the complaint. APPENDIX A Borden's Inc., 11 Brown House Road, Stamford, Conn. 06902 Crowley's Milk Company, Inc., 88 Millwood Road, Millwood, New York 10546 Dairymen's League Cooperative Assn., Inc., Nan- uet, New York 10954 Dellwood Dairy Co., Inc., 170 Saw Mill River Road, Yonkers, New York 10701 Dellwood Dairy Co., Inc., 177 Lake Street, White Plains, N.Y. 10708 Eastchester Dairy, 210 Marbledale Road, Tuck- hoe, N.Y. 10707 Maplegrove Dairy, 60 West Main St., Nyack, N.Y. 10960 Kuritzky's Dairy, Inc., Route 202, Peekskill, N.Y. 10566 Smith's Dairy, Inc., 4 Winchester St., White Plains, N. Y. 10708 Sunnybrae Farms, 37 Grove St., Mount Vernon, N.Y. 10550 L. H. Brooks, P.O. Box 244, Millwood, N.Y. 10546 Fitchett Brenner, Inc., Box 1089, Poughkeepsie, N.Y. 12601 Fitchett Emmandine Dairy, Inc., 152 W. Main St., Wappinger Falls, N.Y. 12590 Dairylea, P.O. Box 3353, Poughkeepsie, N.Y. 12603 Dairylea Cooperative Inc., Box 89 Goshen, N.Y. 10954 Crowley's Milk Co., Inc., 145 Conklin Avenue, Binghamton, N.Y. 13903 Crowley's Milk Co., Inc., LaFargeville, N.Y. 13656 APPENDIX B The seven union bargaining agreements involved in this proceeding are: 1. The Metropolitan Milk Industry Agreement be- tween the Union and Dairylea Cooperative Inc., the Respondent, and the following parties in interest: Borden's Inc. Crowley's Milk Company Inc. Dellwood Dairy Co. Inc., Yonkers, N.Y. Dellwood Dairy Co. Inc., White Plains, N.Y. Eastchester Dairy Maple Grove Dairy Kuritzky's Dairy Inc. Smith's Dairy Inc. Sunnybrae Farms L. H. Brooks 2. The Mid-Hudson Milk Industry Agreement be- tween the Union and Fitchett Brothers Fitchett Emmandine Dairy, Inc. Fitchett Brenner, Inc. Dairylea, Poughkeepsie 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. An agreement between the Union and Dairylea, Goshen. 4. An agreement between the Union and Delton Foods, Inc. 5. An agreement between the Union and Dairylea Cooperative Inc., Binghamton. 6. An agreement between the Union and Crowley's Milk Co., Binghamton. 7. An agreement between the Union and Crowley's Milk Co., LaFargeville. The Metropolitan, Mid-Hudson, and Dairylea Goshen agreements carried 1973 termination or au- tomatic renewal dates; those for Dairylea, Bingham- ton, and Crowley's were 1974; and those for Del- town, 1976. However, it is stipulated that renewal agreements for those contracts expiring in 1973 had been entered into and at all times material the clause in dispute in this case maintained in full force and effect. APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce any agree- ment with Milk Drivers & Dairy Employees, Lo- cal 338, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, giving union stewards top seniority no matter what their length of employment with respect to their selection for and the assignment to them of contract benefits or other terms and conditions of employment except for layoff and recall. WE WILL NOT discriminate against Peter J. Daniels or any other employee by assigning a driver route or any other term and condition of employment other than layoff and recall to a union steward on the basis of seniority when such union steward does not in fact have top seniority in terms of length of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL jointly and severally with the Union pay Peter J. Daniels any earnings he lost as a result of awarding driver routes to union stew- ards rather than to Daniels, when he had actual top seniority in terms of length of service, and WE WILL offer Peter J. Daniels the driver route he would now have but for the unlawful assign- ment of top seniority to union stewards. DAIRYLEA COOPERATIVE INC. APPENDIX D NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce any agree- ment with Dairylea Cooperative Inc., Nanuet, New York, giving our stewards or other repre- sentatives top seniority no matter what their length of employment, with respect to their se- lection for, and assignment of, contract benefits or other terms and conditions of employment except for layoff and recall. WE WILL NOT cause or seek to cause Dairylea Cooperative Inc. to discriminate against Peter J. Daniels, or any other employee, by assigning driver routes or any other term and condition of employment other than layoff and recall to a union steward on the basis of seniority when such steward does not in fact have top seniority in terms of length of employment. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL jointly and severally with Dairylea Cooperative Inc. pay Peter J. Daniels any earn- ings he lost as a result of awarding driver routes to union stewards rather than to Daniels when he had actual top seniority in terms of length of service and we will notify Dairylea Cooperative Inc. and Peter J. Daniels that we have no objec- tion to its awarding Daniels the driver route he would now have but for the unlawful assign- ment of top seniority to union stewards. MILK DRIVERS & DAIRY EMPLOYEES, LOCAL 338, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA APPENDIX E NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To employees of Borden's Inc., Crowley's Milk Com- pany, Inc., Dairymen's League Cooperative Assn., Inc., Dellwood Dairy Co., Inc. (Yonkers), Dellwood Dairy Co., Inc. (White Plains), Eastchester Dairy, DAIRYLEA COOPERATIVE, INC. Maplegrove Dairy, Kuritzky's Dairy, Inc., Smith's Dairy, Inc., Sunnybrae Farms, L. H. Brooks, Fitch- ett Brenner, Inc., Fitchett Emmandine Dairy, Inc., Dairylea, Dairylea Cooperative Inc., Crowley's Milk Co., Inc. (Binghamton), Crowley's Milk Co., Inc. (LaFargeville). WE WILL NOT maintain and enforce any agree- ment with your employer giving our stewards or other representatives top seniority no matter what their length of employment with respect to their selection for, and assignment to them of, contract benefits or other terms and conditions of employment except for layoff and recall. WE WILL NOT cause or seek to cause your em- 665 ployer to discriminate against any of its employ- ees by assigning any term and condition of em- ployment other than layoff and recall to a union steward on the basis of seniority when such steward does not in fact have top seniority in terms of length of employment. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights protected by Section 7 of the Act. MILK DRIVERS & DAIRY EMPLOYEES, LOCAL 338, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA