Freezer Queen Foods, Inc.

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Freezer Queen Foods , Inc. and Gerald Kleparek Local 2000A, International Longshoremen's Associa- tion, AFL-CIO and Gerald Kleparek, Cases 3-CA-5543 and 3-CB-2232 December 16, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On June 21, 1974, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceed- ing. Thereafter, General Counsel and both Respond- ents filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings,[ and conclusions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge's dis- missal of the complaint insofar as it charges Local 2000A, International Longshoremen's Association, AFL-CIO (hereinafter the Union), with violation of Section 8(b)(1)(A) of the Act for its removal of Charg- ing Party Gerald Kleparek from his steward position. However, citing Cameron Iron Works, Inc.,' as au- thority, the Administrative Law Judge found that the disputed provision3 in the December 27, 1973, Memo- randum of Understanding between Freezer Queen Foods, Inc. (hereinafter the Employer), and the Union violated Section 8(a)(3) and (1) and Section 8(b)(2) and (1)(A) of the Act. It was his conclusion that this provi- sion limited the opportunities for promotion of stew- ards and union officers and thereby established a dis- criminatory condition of employment. We disagree with this conclusion and accordingly shall dismiss the complaint in its entirety. The record reveals the following sequence of events. The Employer, a manufacturer and distributor of frozen foods, had a collective-bargaining agreement with the Union which was due to expire on October 3, 1973. In the course of negotiating a new contract the Employer and the Union, on October 3, exchanged the i As the record, exceptions and briefs adequately present the issues and the positions of the parties, the request for oral argument by Respondent Freezer Queen Foods, Inc , is hereby denied 2 194 NLRB 168 (1971) 3 The provision reads "It is agreed that an employee may not serve as a Lead Person and a Union Steward or Officer of the Union at the same time " view that it was undesirable for leadmen to serve as union stewards. After a 5-day strike which ended on October 5, agreement was reached on a new contract. In addition, a Memorandum of Understanding was drafted in which, among other things, a description of the leadperson function was included. Because the draft of the contract subsequently delivered to the Union by the Employer did not include what the Union hoped would be a written statement reflecting the ex- change of views between the Employer and the Union with regard to the undesirability of combining lead- man-steward functions, a later Memorandum of Un- derstanding was agreed to on December 27 which in- cluded the disputed provision. Subsequently, the Employer and the Union arranged for publication of the Memorandum of Understanding. However, no re- vised draft was formally executed by the parties. In June 1972, Kleparek was first appointed to a lead- man position. At this time he also held the position of union steward. Towards the end of November 1972 Kleparek was called in by supervisors to discuss com- plaints stemming from his use of company time to.per- form his union duties. Because his job performance did not improve, Kleparek was demoted on December 5, 1972. The October 5, 1973, contract between the Employer and the Union for the first time provided for a bidding procedure for the leadperson position whereby, at the time of a permanent opening, an employee with the greatest seniority could bid for the job opening. Klepa- rek bid into a leadman position and was assigned to that position effective December 26, 1973. The Com- pany was orally advised on December 26, 1973, by Union Business Agent Pool, that Kleparek had been removed as a steward. On January 18, 1974, around the time the December 27, 1973, Memorandum of Under- standing was distributed to the Union's members, the instant charge was filed by Kleparek, whereupon the Employer refused to sign the Memorandum of Under- standing during the pendency of the charge. While we agree with the Administrative Law Judge that the Employer and the Union in fact agreed to the prohibition against leadmen serving as stewards on December 27, 1973, we disagree with his reliance on Cameron, supra, to find 8(a)(3) and (1) and 8(b)(2) and (1)(A) violations of the Act.' We agree with the Em- ployer's view, as asserted in its brief, that the instant case is closer to Warner Gear Division of Borg- Warner Corporation, 102 NLRB 1223 (1953), which was nar- rowed but not overruled by Cameron. Cameron arose from a situation in which a leadman- Board Member Kennedy would find, in any event, in accordance with his dissent in Cameron, supra, that the provision in dispute, whether or not actually adopted by the parties in the written Memorandum of Understand- ing, would be lawful in the circumstances presented by this case 215 NLRB No. 107 FREEZER QUEEN FOODS, INC. 639 steward was advised by his employer that his union activities were taking too much time and reducing his efficiency, and that consequently he must choose be- tween being a leadman and a steward or face demotion. The Board found in Cameron that, in the absence of any efforts by the employer to seek with the union alternative solutions to the problem, the employer could not arbitrarily restrict the rights of the employees and their union to be represented by the man of their choice. Adopting the decision of the Trial Examiner (now known as Administrative Law Judge), the Board found that the employer violated Section 8(a)(1) of the Act. On the other hand , Warner Gear Division, supra, arose from the company 's denial of a union steward's promotion to a bench inspector position . The Board agreed with the Trial Examiner that the complaint charging a violation of Section 8(a)(3) and (1) should be dismissed . Unlike Cameron, where there were no contractual requirements as to the use of company time for union business , there were contractual guarantees in Warner Gear Division providing reasonable time off for stewards to perform their union duties. In the ab- sence of union animus, the Board found that the em- ployer's desire for its employees to devote all of their production time to their work was a lawful policy, basing this finding on the conclusion that employees do not have a Section 7 right to engage in union activities on company time. Such a right would arise, if at all, from the contract. In the instant case the General Counsel stipulated as to the Employer's lack of union animus. Nevertheless, the Administrative Law Judge concluded that the provision prohibiting leadmen from serving as stewards is on its face unlawful interference with the employees' Section 7 rights because it is a discriminatory condition of employment. However, we find such an interpreta- tion of the Act to be in conflict with the Board's policy in Cameron where, although the Board found a viola- tion of the Act, it ruled against a finding that restric- tions on the leadman-steward function are per se in- valid: In Warner, the Examiner concluded that there was no room for seeking an accommodation be- tween these interests because of the contractual commitment . Here we think that room existed, particualarly in light of the absence of such a'con- tractual commitment. It will be apparent from this discussion that we feel constrained to give narrow application to the holding of Warner Gear. Employees' statutory rights should not be diluted in the absence of com- pelling evidence that other considerations require such limitations. Even then, only such limitations as appear to be reasonable and necessary to ac- commodate those considerations can be permitted.' [Emphasis supplied.] We find that such "compelling evidence" of legitimate considerations justify the restrictions attacked here. Here the employer did not arbitrarily restrict the right of the employees and their Union to be repre- sented by the person of their choice. The agreement was urged by the Union and was the subject of lengthy negotiations . The Union demanded representation dur- ing working hours consonant with past plant practice, and since the Employer required that a leadperson con- stantly be on the production line, the negotiations had as their goal an end to the practice of leadmen serving as stewards. Both parties were concerned with the di- vided loyalty of such a dual-function employee. The record shows that leadmen are required to have superior attendance and to pay constant attention to their duties, because the leadman position is the most critical bargaining unit job . Leadmen must report for work 45 minutes earlier than the rest of the crew on their shifts in order to secure necessary supplies and prepare the production line for operation . The leadman must constantly maintain supplies on the line in order to prevent production from going down , and must take care of emergencies and be on the scene to relieve his supervisor so that the latter may perform other duties. In most cases the foremen supervise more than one production line, and hence when the foreman is needed to attend to one line he will have to leave another line in the care of the leadman . The impracticality of such a leadman being permitted to function as a union stew- ard is exemplified by the Employer's demotion of Kleparek on December 5, 1972 , over a year before adoption of the leadman-steward provision . The Em- ployer's action was based on Kleparek 's diminished efficiency as leadman due to the incompatible time re- quirements of his steward office . It was these legitimate business requirements which motivated the Employer to agree to the disputed provision. The parties also agreed upon the provision because of a mutal concern about conflict of interest problems if leadmen were to be permitted to serve as stewards in this facility. About 40 percent of all individuals who have held the position of leadman over the years have been promoted out of the bargaining unit into line supervisory positions . Indeed, for this reason the Em- ployer initially resisted the Union 's demand that the lead position be a bid job. Conflicts of interests were foreseen in that the leadman -steward might be con- strained from giving directions which he felt were ques- tionable from the Union 's point of view, at a time when he could be the only representative of management 5 194 NLRB 168 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present on the production line. Indeed, Kleparek testi- fied that he would refuse to transmit a direction which he considered contrary to the collective-bargaining agreement. Since leadmen here were prime candidates for supervisory positions, the Union regarded them as management oriented. Under all these circumstances, we are of the view that the parties here were not precluded by law from agreeing upon a prohibition of leadmen serving as stew- ards. Based on the foregoing, we find, contrary to the Administrative Law Judge, that the Union did not vio- late Section 8(b)(2) and (1)(A) of the Act and that the Employer did not violate Section 8(a)(3) and (1) of the Act. Accordingly, we shall dismiss the complaint in its entirety. Local 2000A, International Longshoremen 's Association, AFL-CIO, hereinafter called the Union, is a labor organiza- tion under the Act. 11 THE MERITS The pleadings, as amended at the hearing, raise the follow- ing issues: 1. Whether the Union violated 8(b)(2) and (1)(A) and the Company violated Section 8(a)(3) and (1) by entering into, maintaining, and enforcing an understanding that no em- ployee might serve as a leadman and Union steward or officer at the same time. 2. Whether the Union violated Section 8(b)(1)(A) by removing Kleparek as union steward. A. Sequence of Events ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION SIDNEY SHERMAN: Administrative Law Judge: The original charges herein were served on Respondents on January 18, 1974, the complaint issued on February 28, and the case was heard on March 26 and 27. The issues litigated related to alleged violations of Section 8(a)(3) and (1), and 8(b)(2) and (1)(A), of the National Labor Relations Act, as amended, through the imposition of certain restrictions on the commin- gling of the functions of leadman and steward in the same person After the hearing briefs were filed by all parties.' Upon the entire record,' the following findings and recommendations are made: I THE RESPONDENTS Freezer Queen Foods, Inc., hereinafter called the Com- pany, is a corporation under Delaware law and is engaged at its plant in Buffalo, New York, in the processing and distribu- tion of frozen food items. During 1973, the Company re- ceived from out-of-state sources materials worth more than $50,000 and shipped to out-of-state points products worth more than that amount. The Company has been at all material times engaged in commerce within the Act. I On June 4, counsel met with me at my request in an effort to secure a stipulation with regard to certain matters, which stipulation was later re- ceived in evidence as Joint Exh 6 Thereafter, the General Counsel submit- ted in writing comments with regard to some aspects of the case that were discussed at the above meeting Counsel for Freezer Queen, by letter of June 7, objected to any consideration of the General Counsel's communication, because it was in the nature of a supplemental brief This objection is sus- tained and no weight has been given to the contents of that communication 2 For corrections of the record and certain evidentiary rulings, see Joint Exh 5, and the orders of May 21 and June 11 The Union has had longstanding contractual relations with Respondent. The contract unit comprises about 480 produc- tion and maintenance employees, who work on three shifts. They are serviced by eight union stewards. The various fore- men scattered throughout the plant, who are admittedly supervisors under the Act, are assisted by leadmen.3 Klepa- rek served as a union steward on the second shift from November 1971 to December 26, 1973. He served his first stint as a leadman from March 1972 until his demotion from that position in November 1972. He was restored to that post on December 26, 1973, but was thereafter removed by the Union as steward The" instant charges were filed on January 18, 1974. B Discussion 1. The deferral issue A motion by the Company for deferral by the Board of the instant controversy to arbitration under Collyer Insulated Wire was denied at the hearing. That motion is renewed in the Company's brief and is again denied. The current contract between Respondents contains a grievance procedure culminating in binding arbitration,' and the alleged restriction against stewards functioning as leadmen might be deemed to be a violation of article X of the contract, which forbids discrimination, inter alia, because of "any service rendered the Union or any office held in the Union." However, it is clear that the other issue herein-the legality of the Union's ouster of Kleparek as steward-would not be grievable under that contract, since it makes no provision for the filing of grievances against the Union but only against the Company. As the arbitrator would, therefore, have no power to settle the entire contro- versy herein but could deal with only one of two interrelated issues, deferral would not be appropriate for that reason 3 For simplicity, the masculine form is used herein rather than the more neutral "leadperson" appearing in the record 4 192 NLRB 837 (1971) 5 Joint Exh 1, art Vii FREEZER QUEEN FOODS, INC alone.' Moreover, even as to the one issue that seems arbitrable-the alleged agreement between the Company and the Union to ban steward-leadmen-it is clear that the inter- ests of the Union would be adverse to those of the grievant, particularly as a finding for him on that issue would compro- mise the Union's position on the ouster issue. Yet, the con- tract requires that in a case such as this the Union represent the grievant at every step of the grievance procedure and participate in the selection of the arbitrator and that the latter look to the Union (and the Company) for his compensation. The Board's policy is not to defer to arbitration under such circumstances.' 2. Was there a binding, contractual restriction? The General Counsel contends that the Company violated Section 8(a)(3) and (1) by entering into an understanding with the Union, oral or written, that no employee would be permitted to serve as leadman and'steward at the same time. The Respondents present somewhat divergent defenses. The Union's position is that there was such an understanding and that Kleparek was removed as steward pursuant thereto but that such understanding and removal was lawful. The Com- pany, on the other hand, denies that there was any such understanding, but agrees with the Union that it would, in any event, be lawful. As to the existence of the understanding, a synthesis of the testimony of Respondents' witnesses and a stipulation re- ceived in evidence8 show that in September and October 1973, there were negotiations for a contract to replace the one expiring on October 1; that on October 3, in the course of those negotiations the Company agreed for the first time to permit employees to bid for the job of leadman and to award that job to qualified employees on the basis of seniority; and that in connection with a discussion of the pros and cons of such a procedure the Union and the Company both expressed the view at that time that the same individual should not act simultaneously as leadman and steward because of the super- visory or quasi-supervisory nature of the leadman's job and the resulting conflict of interest; that agreement was reached on the terms of a new contract on October 5; that at the same time agreement was reached on a memorandum of under- standing that dealt primarily with job descriptions, including that of leadman;' that the typewritten draft of both agree- ments, as prepared by counsel for the parties' signatures, did not contain any restriction on leadman holding a union posi- tion; that late in November both parties signed those drafts without any reservations; that on or about December 24, the printer's proofs of both documents were received by the par- ties; that, in reviewing them, Sullivan, secretary-treasurer of the Union, noted the absence of any restriction on leadmen serving as stewards; that on or about December 27, he asked for a meeting with the Company's director of industrial rela- tions, Verostko, to discuss that matter, among others; that such a meeting was held on December 27, which was at- tended by Sullivan, Verostko, and Cooney, a vice president 6 Sheet Metal Workers' International Association, Local Union No 17, AFL-CIO (George Koch Sons, Inc), 199 NLRB 166 (1972), Kevin Steel Products, Inc, 209 NLRB 493, 494 (1974) 7 Kansas Meat Packers, a Division ofAristo Foods, Inc, 198 NLRB 543 (1972) 8 Joint Exh 6 641 of the Company; that at that meeting Sullivan took the posi- tion that the restriction on dual service by leadmen had been agreed to on October 3, and should have been included in the signed documents and that the omission should now be remedied; that, while disavowing any prior commitment on the subject, the Company agreed to grant the Union's request; that both parties then instructed the printer to produce a new version of their memorandum of understanding, which in- cluded the language demanded by the Union, but they did not at that time formally execute any revised draft of that memo- randum; that, when the Union thereafter asked it to sign a new draft containing the agreed-upon revision, the Company refused to do so;' that in the meantime, in mid-January, the Union began to distribute to its members copies of the revised memorandum;10- and that such printed copies contained the following language, which had been added to the original memorandum in the manner just described- "It is agreed that an employee may not serve as a Lead Person and a Union Steward or Officer of the Union at the same time " On the basis of the above evidence, the General Counsel contends, and the Union agrees, that as early as October 3, there was a legally binding oral commitment by both Re- spondents to bar stewards and Union officers from serving as leadmen. However, the Company disagrees. While conceding that the matter was discussed on October 3 during the negotiations for' a new contract and that both it and the Union expressed the opinion that the combining of those functions in the same person was undesirable, the Company denies that this was more than an exchange of views; and Verostko testified without contradiction that during the preparation by both counsel of the final drafts of the parties' agreements he expressly rejected a request by the Union that a restriction against steward-leadmen be reduced to writing, on the ground that such restriction was an "internal union affair." In any case, even if there were an oral agreement on Octo- ber 3, as the Union contends, it would not survive the subse- quent execution of the written memorandum late in Novem- ber. Under the parol evidence rule, a prior or contemporaneous oral agreement may not alter the terms of a written contract," and the Board has applied that rule in refusing to permit a party to a written collective-bargaining contract to vary the terms thereof by proving a contempo- raneous, oral agreement or understanding." Any other rule would result in the proliferation of litigation over the contents of such contracts and put the Board squarely in the business of writing or rewriting agreements on the basis of disputed oral testimony and debatable credibility resolutions. The language which the General Counsel here proposes to add to Respondents' written commitments imposes a condi- tion on the eligibility of an employee to serve as a leadman, which condition is in addition to those specified in the origi- v Such refusal was admittedly not because of any dispute over textual matters but because of the pendency of the instant charge Since that charge was filed on January 18, it is inferred that such refusal occurred soon thereafter 10 G C Exh 2 11 American Jurisprudence, 2d ed , Vol 30, §1016, et seq 12 Oakey A Dahlberg and Ruth N Dahlberg, Co-Partners d/b/a Waialua Dairy, 111 NLRB 1220, 1236-37 (1955), Seaboard Terminal and Refrigera- tion Company, 114 NLRB 1391 (1955), Jersey Contracting Corp, 112 NLRB 660 (1955) 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nal memorandum of understanding, and to that extent alters the terms thereof. Since the parol evidence rule precludes giving legal effect to any such alteration, it follows that no finding may be made on the basis of the events of October 3 that there was a binding agreement that the functions of a leadman and steward or union officer might not be combined in the same person." There remains to be considered whether any such agree- ment emerged from the meeting of December 27 and the subsequent events related above. The Company contends that these events did not result in a legally binding commitment to bar leadmen from acting as stewards or union officers However, there was admittedly on December 27 an oral agreement on the subject which, stand- ing alone, would be legally binding." Moreover, the oral agreement was evidenced by a document, which was sent by both parties to the printer, and which admittedly correctly set forth the terms of the parties' oral agreement. It is true that after that document had been printed and the Union had already distributed copies to employees, a representative of the Company refused to affix his handwritten signature thereto, for reasons of expediency. However, signing by hand is only one way of manifesting assent to the obligations set forth in a wnting. Arranging for, and, in effect, authorizing the distribution to third persons affected thereby of copies of a document purporting to be a signed agreement is sufficient proof of adoption of that agreement. In any event, even if formal execution were required here, the Company, having arranged with the Union to give currency to what purported to be a copy of a duly executed contract, would be estopped to deny that it had been so executed 15 It is concluded from the foregoing that, while both the company representatives and the union negotiating commit- tee as early as October 3 indicated that they did not favor commingling the functions of leadman and steward, there was no legally binding agreement on that point until Decem- ber 27 3. Was the December 27 agreement unlawful? It has been found that on December 27 Respondent en- tered into a legally binding agreement that no employee would be allowed to serve as leadman and union steward or officer at the same time. The Company and Union contend that there was nothing unlawful in such a provision. The 13 While there is an exception to the parol evidence rule, where a provision sought to be added to a written contract was omitted through mutual mis- take, that was not the case here Although Sullivan contended that the omission here was an oversight, the record is clear that the omission was deliberate on the part of the Company 14 Unlike the case of the alleged oral agreement on October 3, proof of an oral agreement on December 27 would not be barred by the parol evi- dence rule, since it postdated the execution of the collective-bargaining contract and the memorandum of agreement That rule bars proof only of an oral commitment made prior to, or contemporaneously with, the written agreement it purports to modify Moreover, as explained below, the instant oral agreement was eventually reduced to writing in a form legally binding on Respondent 15 While there is no evidence that it distributed any of the printed copies of the revised memorandum, the Company admittedly authorized the print- ing of such copies and it was foreseeable that the Union, at least, would give them general circulation, since, otherwise, there would have been no point to having them printed General Counsel, on the other hand, would equate such a provision with one conditioning the hiring of job applicants on union membership-that is, on foregoing their right not to join a union, except as limited by Section 8(a)(3). There seems to be merit in such an analogy. Here, promotion to leadman or retention of employment as a leadman is condi- tioned on foregoing the statutorily protected right to engage in union activity as a steward or officer of the Union. In Cameron Iron Work.S16 an employer was found to have vi- olated Section 8(a)(1)" by requiring an employee to resign as steward as a condition of retaining his job as leadman. In the General Counsel's view, there is no sound reason to as- sume that the Board would have reached a different result in Cameron, if, instead of merely imposing that requirement on a particular employee, the employer had, as here, imposed it on all his employees. The Company contends that the Cameron case is not appli- cable here for various reasons, and that, in any event, no finding of a violation of Section 8(a)(3) or (1) is proper. In seeking to distinguish the Cameron case, the Company argues that (1) here, the conduct challenged by the General Counsel was not unilateral employer action, as in Cameron, but bilateral action by both the Company and the Union; (2) the situation with regard to the amount of working time required to be spent by union stewards on union business is different here than it was in Cameron; and (3) the commin- gling in the same person of the functions of leadman and steward gives rise to a potential conflict of interest (a matter which was not specifically considered in Cameron) These will be considered seriatim. (a) The Union's role as a defense By deferring to the Union's wishes, argues the Company, it cannot be said to have interfered with the employees' "or- ganizational rights", nor can it be said to have interfered with their right to choose their own "representative," since that term, as used in Section 7, denotes only labor organizations themselves, and not the agents of such organizations. How- ever, it is too late in the day to argue that the protection afforded by Section 7 to employee involvement in "concerted activities for the purpose of collective bargaining or other mutual aid or protection" does not extend to the seeking or holding of union office If that were so, an employer would be free to discriminate against an employee because he was a union agent or officer. However, there seems to be implicit in the foregoing argu- ment by the Company a contention that Section 7 does not immunize employees against the imposition by their own union of reasonable restrictions on their eligibility to hold a union post, and that the instant provision was such a restric- tion. The question whether a union is privileged to refuse to permit leadmen to serve as stewards is a novel one and will be considered at length at a later point in this Decision. Be that as it may, it is well settled that, whatever latitude it may have to regulate its internal affairs, a union may not, under the guise of such regulation, interfere with the employment 16 194 NLRB 168 (1971), enfd 464 F 2d 609 (C A 5, 1972) 11 No violation of Sec 8(a)(3) was there alleged FREEZER QUEEN FOODS, INC 643 relation." Here, both Respondents have extended any union rule or policy that may be involved beyond any permissible scope by incorporating it into a contract provision that limits the opportunities for promotion of stewards and union offic- ers. (b) The time factor The Company contends that Cameron is not controlling, in any case, because of an alleged irreconcilable conflict between the demands of his two jobs on the time of a leadman-stew- ard. In Cameron, the respondent also attempted to justify its opposition to the leadman's serving as steward on the ground that his job as leadman required that he devote full time to his work and that his duties as union steward prevented him from doing so.19 In rejecting that contention, the Board majority stated: ... neither party explored with the other what solu- tiotis were available-e g. whether Baker might have been permitted to perform some union'functions during working hours, perhaps more limited in scope and tim- ing than would have been the case with a non-leadman, or whether the Union might even agree to a total restric- tion of Baker's stewardship duties during work time because of the allegedly demanding nature of the lead- man assignment . It surely is not inconceivable that some mutually satisfactory arrangement could have been worked out. In the absence of such efforts, we agree with the Trial Examiner that Respondent could not arbitrarily restrict the right of the employees and their Union to be repre- sented by the man they desired to have represent them . . . In Warner,20 the Examiner concluded that there was no room for accommodation between these interests because of the contractual commitment Here we think that room existed particularly in the light of the absence of such a contractual commitment. The Company contends that the situation here is distin- guishable because the record shows not only that its leadmen are required to devote full time to their duties but also that the Union insists that they handle their union business during working time and has indicated that it will not consent to any "accommodation" such as was enjoined by the Board in Cameron The Company's director of industrial relations, Verostko, testified that a leadman is expected to give all his working time to his job because of his various responsibilities, which make him a "key" employee, but, at a later point, he asserted that every job in the plant was a "key" job. Yet, it is clear that the Company had no objection to employees who were not 18 Scofield v NLR B, 394 US 423 (1969), NLR B v Allis-Chalmers Mfg Co, 388 U S 175,195 (1967), TheBabcock & Wilcox Co, 110 NLRB 2116, 2132 (1954), enfd sub nom. International Brotherhood ofBo,lermak- ers, etc, District No 2, 232 F 2d 393 (C A 2, 1956), NL R B v Phila- delphia Iron Works, 211 F 2d 937, enfg 103 NLRB 596 19 In that case, as here, it was the practice of the steward to handle union business during working time There was no contractual authority for such practice, as there was in Warner Gear Division, 102 NLRB 1223, where the Board reached a different result 20 See preceding fn leadman serving as stewards and handling union business during worktime, and it was admitted that such stewards spent 2 to 3 hours a week on union business. While Kleparek estimated that, when he was a steward, he devoted only 45 minutes to an hour per week to union business, Verostko disputed this, asserting that the correct figure for Kleparek was 5 to 6 hours a week However, the Company's production superintendent, Tucker, acknowledged that he had no objec- tion to Kleparek, as a leadman, performing the duties of a steward during work hours, provided that, before leaving his work station, he gave advance notice to his foreman so that he could arrange for a temporary replacement, and provided that this was not done during the first 45 minutes of shift, when he was required to prepare the production line for operation.21 Kleparek acknowledged that, as a steward, he did in fact attend to union business at the beginning of his shift rather than later in the day. Accordingly, it seems that the time problem with respect to Kleparek could be resolved simply by an arrangement whereby he would be required to remain at work until after he had set up the production line, and to give his foreman an opportunity to arrange for a replacement before leaving his post for union business.22 Finally, it may be pointed out that the "time factor" de- fense would not apply, in any case, to union officers, who are also barred by the contract provision from serving as lead- men There was no evidence nor contention that any of them performed his union duties during working time (c) The "conflict-of-interest" issue One of the defenses pleaded in Respondents' answers to the complaint is that, as a leadman, Kleparek was a statutory supervisor. In that case, he would be precluded under Board law from acting as a union representative. In an effort to substantiate that defense, extensive testimony was adduced concerning the duties of leadmen In addition, in their briefs, Respondents contend that since, as the record shows, a lead- man, whether or not a supervisor, is required to give orders to employees with regard to their work assignments, to report any misconduct on their part to his foreman, and to assist the latter in various other ways in his direction of the work force, such activities on his part may become the subject of a griev- ance, which, if he were also a steward, he would be required to process With regard to the latter contention, the General Counsel aptly points out that auy such conflict may be a- voided by the Union's assigning some other steward to handle 21 The leadman was required to report 45 minutes earlier than the rest of the crew on his shift, to give him an opportunity to order the necessary supplies and otherwise prepare the production line for operation 22 Although Sullivan declared at the hearing that the Union would not agree to Kleparek's performing the duties of a steward outside of working hours, as this might result in undue delay in handling a grievance, the record affords no reason to believe that the Union would object to an arrangement such as is outlined in the text, above, whereby Kleparek would be free to handle a grievance at any time after the 45-minute "preparatory" period At any rate, whether the Union would agree to a particular arrangement can best be determined by putting the matter to the test of good-faith bargaining and not on the basis of assertions by a representative of a respondent which may or may not have been influenced by the exigencies of litigation More- over, should the Union remain adamant and an impasse on the issue be reached in negotiations, the Company would be free to institute unilaterally its last offer on the subject 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that particular gnevance.23 Such a procedure would be con- sistent with the spirit of accommodation enjoined by the Board in Cameron. It is true that Kleparek asserted at the hearing that as a leadman he would not transmit an order that he believed to be violative of the Union's contract. However, it is evident that he was referring at that point to his policy with regard to transmitting orders during his current tenure as leadman, when he was no longer a steward, and that this policy was rooted in his allegiance to the Union as a member, apart from any status he might enjoy as a steward. Thus, his reluctance to abet a supposed contract violation is not a problem that can be solved by precluding him from serving as steward, but, if the occasion should arise, might more appropriately be dealt with through the Company's discipli- nary procedures as a failure to discharge his duties as lead- man. On the more basic issue of supervisory status, it may be noted at the outset that the original memorandum of under- standing executed by Respondents26 contained the following description of the duties of leadmen: Performs work requiring full knowledge of routine and procedures, may be required to coordinate efforts of other workers - work under direction of Supervisor with a minimum of instruction. Transmit (not originate) instructions, directions or schedules of work required to others within bargaining unit. To assemble and write report on factual matters per- taining to his/her area of work - to include counts, weights of material and work requirements. From written or verbal schedules, initiates calls for and moves material or equipment to prepare and main- tain the operation in his/her area of responsibility. Communicates material and job requirements to ap- propriate Supervisors and/or other Personnel as re- quired to assist in assurance of continuity of operation Maintains his/her work area in an orderly manner May be required to handle special assignments of a difficult or non-routine nature. Perform any other activity as required So far as the record shows, this was the only statement of the leadman's functions issued by the Company or com- municated to its supervisors. While the foregoing is not a model of precision, it seems clear that, with regard to the communication of any instructions, directions, or work as- signments to others in the unit, a leadman is limited to trans- mitting those which he receives from his foreman. In the face of this official version of the limited, nondiscretionary nature of a leadman's duties, it was incumbent upon Respondents to put forward some evidence that the foregoing document does not reflect the actual practice in the plant. 23 As noted above, there are eight stewards in the plant, none of whom, according to Verostko's uncontradicted testimony, was assigned to service any particular group of employees Moreover, this contention would not justify the restriction against union officers acting as leadmen, since they do not process grievances 24 Joint Exh 3 In the case of Kleparek, the only direct testimony with regard to his duties as leadman was his own. His foreman, Zale, did not testify and no explanation was offered for that omission and, as might be expected, Kleparek's testimony gave little support to Respondents' contention that his job was that of a supervisor. According to such testimony, his duties were limited to ordering supplies for the production line based on posted instructions as to what products to run on a particular day, transmitting to others verbal orders from Zale relating to changes in production schedules, maintaining production records, reporting absences to Zale, notifying him of any shortage of supplies, and performing work on the production line Kleparek added that, if an employee refused to comply with an instruction relayed to him by the witness, he would notify Zale but he would not otherwise report any misconduct by an employee nor issue any reprimand; that he had never been instructed to do so, that, if a machine breaks down, he notifies the maintenance man of that fact but does not give him any instructions regarding repairing the ma- chine, that employees take work breaks in accordance with a prearranged schedule, which they have devised themselves; and that on days that Zale is absent he is replaced not by Kleparek, but by another foreman. The Company did adduce testimony by Wesselenyi, who had been a leadman on the 5-ounce line for 11 months until his promotion in 1970 to foreman, about his former duties as leadman, and in the main his testimony on that point paral- leled that of Kleparek.26 In any event, the critical question here is what a leadman's duties were at the time of the adoption of the disputed provi- sion on December 27, 1973. On that point the definition of the leadman's job adopted by Respondents in their current contract was entitled to more weight than any testimony about what a particular leadman did in 1970.27 And, even if it be assumed that the particular job occupied by Wesselenyi in 1970 on the 5-ounce line has not changed since that time, that would not warrant rejection of Kleparek's testimony about what he did as a leadman on a different production line,28 particularly as we are dealing with the question of the extent to which there were deviations in actual practice from a norm fixed by contract. Absent any evidence of any plant- wide instructions on the subject,29 it must be assumed that any such deviations would reflect the particular situation and capabilities of each leadman. This was illustrated by Wes- 26 In its brief the Company points to testimony by Wesselenyi that as a leadman he would call upon a mechanic to repair a machine or a cleanup man to mop up a gravy spill, and would direct production workers to reprocess defective products However, it does not appear that he had to use any independent judgment in determining where, by whom, and how those activities were to be performed Reference is also made to'his testimony that as a leadman he reprimanded employees for misconduct and assigned over- time However, he acknowledged that, if an employee ignored his repri- mand, he had no authority to take any further action other than to report the matter to the foreman, and that he could not require an employee to work overtime but could only ask for volunteers 27'Although Wesselenyi and Production Superintendent Walters insisted that since 1970 there had been no change in the leadman's job, it is signifi- cant that the former acknowledged that, unlike the situation in 1970, lead- men no longer substitute for foremen during their vacations, because there were now "hardly any leadmen in the plant" who were qualified to take over for a foreman 28 He worked on the 2-pound line 29 The record shows that there were in fact no such oral or written instructions FREEZER QUEEN FOODS, INC 645 selenyi's further testimony that in his present job as the only foreman on the second floor, which job involves supervision of two widely separated production lines with the assistance of but one leadman , the witness is required to leave that leadman in charge of one line for considerable periods of time while the witness is attending to the other one. Even if if be assumed that this was sufficient to constitute that leadman, and any others similarly situated , supervisors,3t it would have no relevance to the status of those leadmen, like Klepa- rek, whose foreman did not have to cover so much territory." It follows that some, at least , of the Company's leadmen were not statutory supervisors and that , insofar as the con- tractual provision here under attack conditioned their reten- tion of their jobs on their refraining from certain types of union activity, such provision established a discriminatory condition of employment . It is, accordingly , found that, by adopting such a provision , the Company violated Section '8(a)(3) and ( 1) of the Act, and that , by causing the Company to do so, the Union violated Section 8(b)(2) and (1)(A). 4. The removal of Kleparek As already related, Kleparek had been a union steward since November 1971, and had also served as leadman from March to November 1972. In November 1973, pursuant to the newly negotiated contract, he bid for reinstatement to the position of leadman and on December 26 was awarded that job The same day he was removed as steward by Union Business Agent Pool 32 Since it has been found that it was not until the next day that Respondents reached any legally binding agreement barring stewards from acting as leadmen, no violation by the Union in removing Kleparek may be found, unless such removal may be deemed unlawful, in itself, without reference to any contractual provision However, the General Counsel litigated the case solely on the theory that the Union violated Section 8(b)(1)(A) and (2) by the removal of Kleparek, because it was thereby enforcing an unlawful agreement, and in his brief the General Counsel still relies on that ground. In view of this, it may well be questioned 30 The testimony of Barrett and Walters indicated that most of the fore- men have responsibility for more than one line and that, while they are attending to one line, the other is under direction of their leadman How- ever, Barrett's testimony was that her leadman had this responsibility only for a few hours a week and Walters' testimony indicates that in such cases the leadman has previous instructions from the foreman as to what direc- tions to give, and there was no evidence that in such cases the leadman does anything more than follow a prescribed routine 31 Walters testified that the Company's third shift consists of a plantwide cleanup operation by a crew of 25 men under a leadman and a foreman, and that the leadman will move some of those men from job to job However, Walters acknowledged that what jobs will be done during the shift is deter- mined in advance in the course of a tour of the plant by the foreman and the leadman Although the leadman directs the men assigned to him as to what type of detergent and how much water to use, Walters did not say to what extent he was using his own judgment or following a prescribed rou- tine The latter would seem more likely, in view of the limitation in the leadman's job description against originating orders It is found that the night-shift leadman is not a supervisor 32 Verostko's testimony that on December 26, Pool notified him of that action is credited Pool did not testify and the best that can be made of Sullivan's rather confused testimony on this point is that he did not learn of the removal until early in January, when he was told that the Company had rejected a grievance filed by Kleparek because he had been removed as steward whether the issue of a union violation or any other theory was sufficiently litigated. Had the Union been put on notice that its right to remove Kleparek as a steward, apart from any agreement with the Company, was in issue, the Union might have presented a different defense. In any case, even if adequate litigation of the issue be assumed, I am not persuaded that the Union violated the Act by the removal of Kleparek, considered apart from any con- tractual provision. Nothing in the Act places any restriction on the right of a Union to select or remove stewards, except insofar as the exercise of that right may be deemed to impinge on the guarantees of Section 7. That provision has been con- strued by the Board to protect union stewards and officers against reprisals by employers because of the manner of their performance of the union duties and, as already noted, in Cameron Iron Works, Inc., supra the Board held that an employer violated Section 8(a)(1) by requiring that a union steward resign that post as a condition of retaining his job as leadman. There may be distilled from the foregoing the doc- trine that Section 7 protects from any interference by an employer the right of an employee to function as a union steward. The issue here is to what extent that right was protected against interference by the Union, absent any im- pact on Kleparek's status as an employee of the Company In a sense, every time a union removes a steward it is interfering with his right to engage in union activities in that capacity. However, in construing the proviso to Section 8(b)(1)(A)33 in the light of its legislative history, the Supreme Court has distinguished between "internal" and "external" enforce- ment of union rules, holding that "Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union' s internal regula- tions to affect a member's employment status."" In Scofield, supra the Court reaffirmed its holding in Allis- Chalmers, supra that, while a union violated the Act by causing an employer to discipline an employee for breach of a union rule, the imposition of a fine by the union for the same breach was permitted by the proviso to Section 8(b)(1)(A). In this context, the Court cited Minneapolis Star and Tribune Company, 109 NLRB 727 (1954), where the Board found a violation of the Act by a union in causing an employer to discriminate against an employee because he crossed a picket line, but found no violation in the union's fining the employee for the same conduct. The Court then laid down the following guidelines for testing the validity of an "internal" union rule: . section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. We will next consider whether those guidelines were met here. 33 Sec 8(b)(1)(A) makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of their Section 7 rights , but in a proviso reserves the right of a union "to prescribe its own rules with respect to the acquisition or retention of union membership " 31 NLR B. v. Allis-Chalmers Mfg. Co., supra Scofield v NLR B., supra 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Initially, it may be pointed out that here there were in- volved two union rules. The first was a provision of the Union's constitution giving its business agents unlimited dis- cretion with regard- to the "appointment and removal of shop stewards."35 The second rule here involved is a provision of the Union's international constitution, which precludes anyone employed in a "supervisory job" from holding any "office" in a local union. While the Union's own constitution does not expressly include stewards in the roster of "officer," Sullivan, the Union's secretary-treasurer, testified that the term "office" as used in the foregoing constitutional provision has been his- torically interpreted as including the office of steward As for the meaning of "supervisory jobs," Sullivan-maintained that that term has traditionally been deemed to denote not only those who would be considered supervisors under the Act but also any employee who directed the work of others, that the issue had arisen in the case of hatch bosses who direct long- shoremen in the loading and unloading of vessels, and that there have been rulings by the Union's sister locals and by its parent body that hatch bosses may not serve as stewards. There was no contradiction of this testimony and it is cred- ited It follows that on December 26, when Kleparek was reinstated as leadman there was in effect a properly adopted union rule barring leadmen from serving as stewards, and, in view of the timing of Pool's action in removing Kleparek as steward on that date, it is found that such action was precipi- tated by Kleparek's elevation to leadman, which created a situation interdicted by that rule It follows that Kleparek's ouster was in accordance with a properly adopted union rule There remains to be considered the legitimacy of the union interests served by that rule as applied to a leadman like Kleparek The purpose of that rule, according to Sullivan, was to "afford the individual worker the best possible repre- sentation " In this connection, Sullivan cited the difficulty a leadman-steward would have in prosecuting as a steward a grievance over some action he had taken as a leadman. While this may not have been an insoluble problem '16 the record shows that there were other, more cogent reasons for an apprehension on the part of Pool and the other members of the Union's negotiating committee that advancement to the job of leadman would impair the effectiveness of a stew- ard. There was uncontradicted testimony by Verostko that at the penultimate bargaining session, on September 28, the Company opposed opening up the job of leadman for bidding, explaining that it considered its leadmento be potential supervisors; that this explanation prompted the comment by a union representative that leadmen were management-ori- ented to the point that they were prone to carry tales to supervisors about employee activities; that the tendency of leadmen to inform on their fellow employees was aired again at the October 3 meeting; and that the consensus of the union committee with respect to the propriety of the same person serving as steward and leadman was that "the leadman.. . historically has been a training ground for supervisors and that . . a steward could not function as a lead person and steward at' the same time because the individual would be 35 Union Exh 4, art IX, sec 6 36 See the treatment of this point, above, in connection with the discussion of the validity of the contractual restriction on steward-leadmen naturally . . . leaning toward management and management- oriented with his eye on the supervisory position and that there would be an inherent conflict of interest." A fillip was added to the foregoing by Verostko's testimony that at the September 28 meeting Kleparek, who was on the union negotiating committee, agreed, himself, that, because of their identification with management, leadmen should not serve as stewards. Kleparek did not dispute this and acknowl- edged, in fact, that at the October 3 meeting he had an- nounced that he, personally, had no intention of bidding for a position as leadman.37 It is, thus, clear that the Union's main concern was that promotion of a steward to a job which was a training ground for supervisors would subject him to the temptation to curry the favor of management and blunt his effectiveness as an employee representative. It is found that this was a proper union concern and that the removal of Kleparek reflected a legitimate interest of the Union. There is no contention that the enforcement of the forego- ing rule against Kleparek was unreasonable," nor does it appear that it violated any policy of the labor laws within the intendment of the Court's guidelines in Scofield. No violation is found in the removal of Kleparek. III THE REMEDY It having been found that the Company violated Section 8(a)(3) and (1) and the Union violated Section 8(b)(2) and (1)(A), it will be recommended that they be ordered to cease and desist from such violation and that they take appropriate, affirmative action. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce under the Act. 2. The Union is a labor organization under the Act 3. By adopting on December 27, 1973, a contract provision precluding any employee from serving as leadman and union steward or officer at the same time, and by maintaining that provision in effect, the Company has violated Section 8(a)(3) and (1) of the Act. 4 By causing the Company to adopt the foregoing provi- sion, the Union has violated Section 8(b)(2) and (1)(A) of the Act. 5. Such violations constitute unfair labor practices affect- ing commerce within the meaning of Section 6 and 7 of the Act. [Recommended Order omitted from publication.] 37 He explained at the hearing that a subsequent development affecting his job status forced him to change his mind 38 Although that rule had not been invoked against Kleparek when he first served as leadman-steward (in 1972), Sullivan explained that this was be- cause at that time opposition to such commingling of functions had not yet crystalized among the employees, such opposition being first expressed at the 1973 bargaining sessions , described above There was no contrary tes- timony on the point and no other apparent reason in the record for rejecting this explanation It is credited No issue was raised or litigated as to the procedural regularity of Klepa- rek's removal The General Counsel conceded that such removal was not motivated by any animus toward Kleparek (See item 7 in Joint Exh 5 )