Colonial Baking Company of Springfield

COLONIAL BAKING COMPANY Colonial Baking Company of Springfield' and George D. Bellinger and Bakery & Confection- ery Workers Local No. 235, Party to the Con- tract Bakery & Confectionery Workers Local No. 235 and George D. Bellinger and Colonial Baking Company of Springfield, Party to the Contract. Cases 17-CA-10062 and 17-CB-2342 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On May 13, 1982, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent Employer and Respondent Union filed exceptions and sup- porting 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 record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge, but not to adopt his recommended Order. 2 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 Colonial Baking Company of Springfield, Springfield, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: The name of Respondent Employer appears as corrected by the Ad- ministrative Law Judge from documents submitted by Respondent Em- ployer I In order to correct certain inadvertent errors and omissions con- tained in the Administrative Law Judge's recommended Order and no- tices, we shall issue a new Order and notices in conformity with his Con- clusions of Law We agree with the Administrative Law Judge that Respondent Union's backpay liability to the Charging Party Bellinger is to terminate after it notifies Respondent Employer Colonial and Bellinger that it no longer has any objection to his employment with Colonial, but wishes to clarify that such liability terminates 5 days after the Union tenders the appropri- ate notices. C. B. Display Service, Inc., 260 NLRB 1102 (1982). Contrary to thc majority and based on his partial dissent in C. B. Dis- play Service, and Hars Investment Corporation d/b/a The Claremont Resort Hotel and Tennis Club, 260 NLRB 1088 (1982), Member Jenkins would not toll Respondent Union's liability for backpay 5 days after tendering the appropriate notices but thereafter would hold it secondarily liable to remedy its illegal actions. In accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. (a) Conditioning the hire of applicants for em- ployment upon membership in or clearance by Re- spondent Union or any other labor organization. (b) Maintaining or otherwise giving effect to the provision of any agreement with Respondent Union, or any other labor organization, which con- ditions the hire of applicants and tenure of employ- ees with any employer upon membership in or clearance by any labor organization, except as au- thorized by the provision contained in Section 8(a)(3) of the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Offer employment to George David Bellinger in the job for which he would have been hired absent the discrimination practiced against him. (b) Jointly and severally with Respondent Union make George David Bellinger whole for any loss of earnings he may have suffered due to the dis- crimination practiced against him by paying him a sum equal to what he would have earned, less any net interim earnings, plus interest, as provided in the remedy section of the Administrative Law Judge's Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Springfield, Missouri, facility copies of the attached notice marked "Appendix A."3 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized representative of Co- lonial Baking Company of Springfield, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Colonial Baking Company of Springfield to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Iahbor Relations Board " 264 NLRB No. 72 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order, what steps Respondent Employer has taken to comply herewith. B. Respondent Bakery & Confectionery Workers Local No. 235, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Colonial Baking Company of Springfield, or any other em- ployer, to discriminate against employees or appli- cants for employment in violation of Section 8(a)(3) of the Act. (b) Maintaining or otherwise giving effect to the provision of any agreement with Respondent Em- ployer, or with any other employer, which condi- tions the hire of applicants and tenure of employees with any employer upon membership in or clear- ance by Respondent Union, or by any labor organi- zation, except as authorized by the provso con- tained in Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Notify Colonial Baking Company of Spring- field, in writing, with a copy to George David Bel- linger, that it has no objection to the employment of George David Bellinger. (b) Jointly and severally with Respondent Em- ployer make George David Bellinger whole for any loss of earnings he may have suffered due to to discrimination practiced against him by paying him a sum equal to what he would have earned, less any net interim earnings, plus interest, as provided in the remedy section of the Administrative Law Judge's Decision. (c) Post at its Springfield, Missouri, union office copies of the attached notice marked "Appendix B."4 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent Union's authorized rep- resentative, shall be posted by Respondent Union, immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to members are customarily posted. Reason- able steps shall be taken by Respondent Union to ensure that said notices are not altered, defaced, or covered by any other material. (d) Deliver, to the Regional Director for Region 17 signed copies of said notice in sufficient numbers to be posted by Colonial Baking Company of Springfield, in all places where notices to employ- ees are customarily posted. ' See fn. 3, supra (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT condition the hire of appli- cants for employment upon membership in or clearance by the Bakery & Confectionery Workers Local No. 235, or any other labor or- ganization. WE WILL NOT maintain or otherwise give effect to the provision of any agreement with Local No. 235, or any other labor organiza- tion, which conditions the hire of applicants and tenure of employees with any employer, upon membership in or clearance by any labor organization, except as authorized by the pro- viso contained in Section 8(a)(3) of the Nation- al Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer employment to George David Bellinger in the job for which he would have been hired absent our discrimination practiced against him. WE WILL, jointly and severally with Local No. 235 make George David Bellinger whole for any loss of earnings he may have suffered due to the discrimination practiced against him by paying him a sum equal to what he would have earned, less any net interim earnings, plus interest. COLONIAL BAKING COMPANY OF SPRINGFIELD APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Co- lonial Baking Company of Springfield, or any other employer, to discriminate against em- ployees or applicants for employment in viola- 508 COLONIAL BAKING COMPANY tion of Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT maintain or otherwise give effect to the provision of any agreement with Colonial Baking Company of Springfield, or any other employer, which conditions the hire of applicants and tenure of employees with any employer upon membership in or clear- ance by us or any labor organization, except as authorized by the proviso contained in Section 8(a)(3) of the Act. WE WILL NOT in any like related manner re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL notify Colonial Baking Company of Springfield, in writing, with a copy to George David Bellinger, that we have no ob- jection to the employment of George David Bellinger. WE WILI, jointly and severally with Colo- nial Baking Company of Springfield make George David Bellinger whole for any loss of earnings he may have suffered due to the dis- crimination practiced against him by paying him a sum equal to what he would have earned, less any net interim earnings, plus in- terest. BAKERY & CONFECTIONERY WORK- ERS LOCAL No. 235 DECISION HAROLD A. KENNEDY, Administrative Law Judge: In this consolidated case, the Respondent Union, Bakery & Confectionery Workers, Local No. 235, and the Re- spondent Employer, Colonial Bakery,' are charged with violating the National Labor Relations Act (herein called the Act) by maintaining and applying a provision in a collective-bargaining agreement so that Charging Party George David Bellinger was denied employment as a journeyman baker beginning on or about June 13, 1980. Having considered the entire record and determined that the charges were established as to both Respondents, I will recommend entry of an order which forbids repeti- tion of the unlawful practices and directs Respondents to make the Charging Party whole. Bellinger filed charges in Case 17-CB-2342 against the Union on November 10, 1980, and December 1, 1980 (amended). He filed the charge in Case 17-CA-10062 against Colonial for Region 17 in "December of 1980." The complaint, issued by the Regional Director for Region 17 on December 10, 1980, came on for hearing, I The correct name of the Respondent Employer, according to docu- ments submitted by it, is "Colonial Baking Company of Springfield." 'Ihe firm's production superintendent testified that "Colonial Baking Company belongs to Cambell Taggart." following the filing of answers by the Union and Colo- nial, in Springfield, Missouri, on June 25, 1981. The Union and Colonial were parties to a multiem- ployer collective-bargaining agreement, known as a master bakers agreement, which was to be effective May 1, 1978, through May 1, 1980, and "thereafter until a new agreement . . . has been consummated" or thereaf- ter terminated by notice of one of the parties. 2 Section 8 of the 1978-80 agreement reads: Section 8. Any underhand or apprentice who suc- cessfully bids on a Journeyman bakers vacancy shall be considered temporary until completion of his two year apprentice period or until he acquires his Journeyman status. A Journeyman baker who is a member of Local 235 covered by this contract may replace the underhand, or apprentice provided he is qualified. Any underhand who bids on a Journey- man job and works it for over thirty (30) days cannot move off the job unless he is laid off or cut back. On June 24, 1980, the parties agreed to a "stipulation" which extended the life of the agreement through May 1, 1982, except as "modified" in the stipulation (Emp. Exh. 1). One of the modifications relate to section 8 and reads: "New EWC language to be added." A sheet attached to the stipulation reads: Section 8. Any underhand or apprentice who suc- cessfully bids on a Journeyman Bakers vacancy shall be considered temporary until completion of a 20-day working day apprentice period or until he acquires his Journey-man status. The new contract, which was made effective retroactive to May 1, 1980, was ratified on June 28, 1980. Charging Party George David Bellinger, now employed at a Tulsa, Oklahoma, bakery, worked as a baker in Springfield for three different bakeries (Taystee, Holsum, and Colonial) between 1945 and 1961. He started as an "underhand," working in the wrap shop, and soon there- after transferred to the bakery shop to learn the trade as a baker. He completed a 3-year apprenticeship in 1948 and was issued a "baker's card." Bellinger said he joined the Union in 1945 and paid dues for approximately 15 years. He left the bakery business around 1961 and took out a "retiring card" so he could "retain status as a baker" without having to pay monthly dues. In February 1978, Bellinger went to the union office in Springfield and told Union Business Agent Gene Baker that he wanted "to deposit [his] retiring card and become active" again as a baker. A new membership card was issued, and he resumed payment of dues. Bellinger re- ceived no work, however, and, being in a "financial bind," allowed his dues to lapse shortly thereafter. He 2 A master bakers agreement at one time covered employees of four Springfield bakeries --Kroger, Taystee. Colonial, and Holsum. At the time of the hearing, only Holsum and Colonial were in operation 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said he received no communications from the Union about his delinquent dues.3 On June 13, 1980, 4 Bellinger visited Colonial and spoke with J. R. Langston, production superintendent of the bakery. Bellinger stated he had been at the plant at some prior time and had filed an application but did not meet Langston. Bellinger said he had gone to Colonial about a job at the bakery on June 13 because earlier that day a representative of Manpower (which he referred to as a "for profit job service") had told him Manpower had been supplying Colonial with workers. Langston ini- tially stated to Bellinger that there was no work, but, on learning Bellinger was a journeyman baker, indicated there was. According to Bellinger, Langston told him, "All you got to do is get it cleared with Gene Baker." Langston also indicated to Bellinger, according to Bel- linger, that there was "a whole crew" of nonjourneymen doing journeymen's work at Colonial. Bellinger said he went immediately to the union office and asked Baker "why in the hell he had been telling me for two or three years that they did not have any work and at the time the bakery having to call Manpower to try to get help." Bellinger maintained the Union knew he was available for work after February 1978 but did noth- ing for him. Said Bellinger: I run into Mr. Baker numerous times, like on Com- mercial Street and here and there. I run into him at a garage sale one time and various places and I always asked him if there was any work and he always told me no with a very sad look on his face, not a thing. Bellinger stated that Baker on that day (June 13) "very reluctantly" said "O.K." and indicated Bellinger could probably go to work the next week. Bellinger filled out insurance papers at the union office and explained to Baker that his dues had lapsed. Bellinger indicated that he assumed there would be some penalty for letting his dues lapse, but Baker responded, "no, they did not do it that way anymore." Baker told Bellinger, according to Bellinger, that there would be a new initiation fee, al- though "it amounted to about the same anyway" as a penalty, and that he should come to a union meeting. On the following day, Saturday, June 14, Bellinger at- tended a union meeting, which was presided over by Union President Jim Fry. Bellinger said that, when the subject of membership was taken up at the meeting, he and another applicant were taken to a small room nearby. Bellinger "could hear real well what was going on" and heard someone state that while Bellinger was "a pretty good old boy" he should not be allowed to come back after being gone so long "and pick up where [he] left off and get top pay." The membership then voted unanimously in favor of a proposal allowing Bellinger to I Bellinger indicated later on cross-examination that he paid dues for "four months. maybe six months." Bellinger said there was no activity in the bakery line after he turned in his retirement card. except for a couple of inquiries about the possibility of a few hours ofr work (at tHolsum and Colonial), so he allowed the dues to lapse. He said he "figured" he would have to pay some back dues to get back into the Union but "did not know exactly" about his status as a baker. 4 All dates refer to 1980), unless otherwise stated. renew his membership in the Union on the condition that he start all over again as an underhand. Bellinger said he was told "officially" by Baker, when brought back into the hall, what the membership had voted. A discussion between Baker and Bellinger then followed. Quoting from Bellinger's direct examination: A. [Gene Baker] told me that they had had a motion passed on it that if I wanted back in the union that I have to start all over as an underhand again and did I want to come in as an underhand. He assured me that there was practically no under- hand work and I declined it. He come forth with an announcement then for the membership. He said he had just learned that Bill Busby-that is this older baker that had been there a long time and I guess had been off on sick leave-would not return to work. He was not going to be able to come back. Q. Who is Bill Busby? A. Well, Bill Busby is a long time baker at Colo- nial Bakery. Q. Do you recall anything else said by Mr. Baker in this conversation? A. Yes, I do. You know, I remarked that I had never seen anybody done this way in my 35 years of membership there and Mr. Baker said, "Well, if you want my honest opinion, this is the way it ought to be done." I said, "Well, I did not recall anybody asking for his honest opinion, but I guess it did not make any difference." I wanted to know why they changed the rules today, you know. Q. Do you recall Mr. Baker speaking to anyone else during this conversation you had with him'? A. Yes, when he was trying to assure me that there was not any underhand work he asked this other young man that was coming into the local how much work he had got the previous week and the young man told him one day. So Gene Baker told me, "Now you are behind him, do you want to come in." And I guess that is when I told him no, if there was not any work there was not any use in paying him another bunch of money like I had done two years before and not get anything out of it. Q. From your years as a member of Local 235, can you tell us has any member ever lost their jour- neyman classification or had it reverted to under- hand for nonpayment of dues? A. Not that I know of and I am practically sure that it has never happened. Bellinger never returned to Colonial after attending the union meeting. He acknowledged that Langston did not tell him he could not have a job and that at the time Langston had no proof that he was a verified journey- man. He asserted, however, that Langston had told him to get an okay from the Union. Asked on cross-examina- tion what he expected to gain by being voted a journey- man's baker status. Bellinger answered, "baker's pay"- admittedly little improvement over what an apprentice is paid-and bumping privileges. He considered the latter important, explaining: 510 COLONIAL BAKING COMPANY . . . These underhand working on these jobs cannot hold them. A baker can bump them off of it and that is why-I was a baker and if I had hired in as an underhand and, say, I had been put on a baker's job that day and a baker come along the next day he could bump me off of it. Bellinger stated that when he was a helper in past years he had been bumped "many times" by journeymen and "there was not any fuss made about it." According to Bellinger, even a journeyman from out of state could "drift in here" and take a helper's job by depositing his baker's card. Baker was also asked on cross-examination about the language of section 8 as it appeared in the 1978-80 agree- ment. Although reluctant to give an interpretation of the contract, Bellinger testified that he thought it allowed bumping rights to a journeyman baker not covered by the contract. J. R. Langston, production superintendent at Colonial since May 1980, remembered telling a journeyman baker, unquestionably Bellinger, around June 13 that he would have to get his journeyman status cleared with the Union before a nonjourneyman performing journeyman's work could be bumped. Langston said union membership was not discussed. He stated that the Company did not keep records on the status of employees-i.e., whether non- journeyman, journeyman, apprentice, or underhand-and that the Company would have to check with the Union in that regard. Langston said he did not have a crew of nonjourneymen doing journeymen's work and that he did recall telling Bellinger such. There was no steady journeyman's job open at that time, according to Lang- ston-only jobber shifts (i.e., part-time work). Testifying as a defense witness, Langston said he was aware, as a result of his experience working at Colonial (since 1965 except for time out for military service, 1966 to 1968, and employment at another Campbell-Taggart bakery in California, October 1978 to May 1980), that journeymen bakers had been given bumping rights in privileges at Colonial. He recalled that Taystee Bakery Co., another bakery which had been signatory to the master agreement with Local 235 at one time, had closed its plant in Springfield in the early seventies and that journeymen from that plant had bumped and replaced apprentices or underhands at Colonial. He remembered specially that Bud Kline and Jim Brott, who worked in journeyman positions (one as a divider operator and the other as a mixer), were replaced by two journeymen bakers formerly employed at Taystee. 5 Langston said he knew of no instance where an outsider-i.e., a person not covered by the collective-bargaining agreement-had "bumped an apprentice or jobber doing journeyman's work" at Colonial." Langston said he participated in the 5 Langston said Bud Patton was one Taystee employee who trans- ferred over, but he could not remember the name of the other person. a Langston testified under questioning by the General Counsel on re- buttal, however, that he had told the Board's attorney in November 1980, as indicated in an affidavit (G.C. Exh. 3), that "any union member who holds a journeyman's baker card can bump anyone working a job in that category who does not hold a journeyman's card." negotiation of the new contract that was signed in June and which became retroactively effective as of May 1. Langston stated that Colonial had hired persons "off the street"-i.e., persons who did not have union mem- bership-without communicating with the Union. Bob Glenn Garrison, president of Colonial since 1970, corroborated much of the testimony given by the firm's production superintendent. He interpreted the June 24 stipulation as making the new contract retroactive to May 1. On cross-examination, Garrison agreed that the wording of the stipulation did not expressly provide for such retroactivity and later pointed out, when questioned on redirect, that the new wages and pension benefits were also applied retroactively to May 1, 1980. He could not recall that there were any other changes applied ret- roactively. Garrison interpreted section 8 as allowing replacement of an apprentice by a journeyman baker only if the latter were "within the bargaining group," which he pointed out, included Taystee employees prior to the time that company had closed its plant. He recalled that Duel Patton, a Taystee journeyman, had bumped and replaced apprentice James Kline at Colonial around February 1971 or 1972. He said James Brott was another Taystee journeyman who transferred over and bumped another apprentice at Colonial at the same time, but he could not recall who the replaced apprentice was. Garrison said he knew of no occasion when a journeyman baker not cov- ered by the master contract had bumped and replaced an apprentice at Colonial. Garrison said the Company hires people when needed wherever "we find them" and that employment had never been conditioned upon joining the Union. Gene Dentis Baker, business agent and financial secre- tary-treasurer of Local 235, identified the minutes of the June 14 union meeting which recite that Bellinger and Jackie Cutter were each voted membership in the Union as an underhand (G.C. Exh. 4). The minutes also note that Bellinger declined membership in the Union. Baker said he wrote a note to himself at the end of the meeting covering the action taken on Bellinger's application and attached it to Bellinger's application and file card (G.C. Exh. 5(a) and (c)). The note reads: Application was accepted as Underhand for mem- bership June 14, 1980. The acceptance of the mem- bership on a basis of Underhand status was de- clined. Bellinger did not feel that enough work was available to compensate for such. Testifying later for the Union on defense, Baker said he had known Bellinger since about 1946. He recalled Bellinger coming to the Union on Friday, June 13, and telling of a meeting the latter had with J. R. Langston at Colonial earlier that day. Quoting from Baker's testimo- ny: . . .He said J. R. had lots of work down there. "He wanted me to come up here and talk to you and get straightened out and go to work," he said. I said, "You know you have been expelled from the 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD local union. You will have to rejoin again." He said, "Yes, I know that." Bellinger filled out the application card, along with an enrollment card, and returned to the union office on the following morning, Saturday, June 14, to attend a "regu- lar wholesale membership meeting." Baker stated that Bellinger and one "other young man" were taken to the "backend area" while their proposed memberships were discussed. Thereafter, Bellinger was told by Baker that he had been accepted on "an underhand status." Bel- linger indicated at first he would accept such status but then decided against it. Quoting from Baker's testimony: . . . He first said, well, he would go ahead and accept it that way and then he said, "Well, I don't know. How much work will there be?" I said, Dave, I don't have any way of telling you how much work Colonial Baking will have. I won't have any idea of how much work is available. This membership would also have entailed eligibil- ity to work at Holsum Baking Company. The other young man that was [there] accepted that morning, I said, "How much work did you get?" He said, "I worked one day this week." Dave made the remark, "Well, I don't think it would be worth my while to come in. I'm just not going to take it." So, he left. Baker said that neither he nor any other union official, to his knowledge, had ever discussed Bellinger's June 1980 application job with a Colonial representative. Baker acknowledged that he had seen Bellinger at a garage sale and a rummage sale within the 2-year period preceding June 14. He could not recall whether Bel- linger had asked about a bakery job when they met at the garage sale, but he indicated Bellinger had not done so when they were together at the rummage sale. Baker stated that Bellinger's union application form did not indicate status as a journeyman or underhand, and Bellinger had only asked for "reinstatement into the union." Baker said that in his 37 years of experience as a member of the Union he had never known a journeyman baker to allow his membership to lapse for nonpayment of dues. But on cross-examination, Baker acknowledged that journeyman bakers not covered by the master agree- ment-Johnny Ray Thomas being a recent (1979) exam- ple-had obtained new journeyman status in Local 235 after losing membership for being delinquent. Baker said Thomas, who works in Booneville, Missouri, was ad- mitted to memberhip at a time when he held a journey- man baker's job. "They have the shop-wide seniority provision up there which we have attempted to intro- duce here with this new agreement and contract," Baker stated. Baker explained that Local 235 has jurisdiction over much of the State of Missouri that is south of the Missouri River and that there are different bargaining units in different cities. Baker agreed that there is a difference in the amount of dues paid by journeymen and by underhands and that Bellinger had paid dues of a journeyman in 1978. Baker said that Bellinger was not in good standing because "he had let his dues lapse and became six months delinquent with them." Bellinger had not taken out a withdrawal card in 1978 (as previously). he said.7 Baker testified that a union member is able to take out a withdrawal or retirement card and need not thereafter pay dues. The card costs $2 and is issued by the Interna- tional Union. The "retired" member may thereafter obtain reinstatement simply by depositing the withdrawal card with the Union and start paying monthly dues again. Baker explained the Union follows a procedure in ex- pelling members. If a member "becomes 2 months behind with his dues," his name is read off at a union meeting, and a delinquency notice is sent to the member. Notices thereafter sent out in the third, fourth, and fifth months, but no copies of the notices are kept. According to Baker, Bellinger never questioned or protested his sus- pension for nonpayment of dues. Baker stated that Colonial hires persons off the street to work in its bakery and that the Union does not ques- tion the Company's right to do so. New employees, however, must join the Union within 30 days, pursuant to the security provision of the master bakers agreement, and stewards in a plant "ordinarily" tell them to go to the union office and file an application. Baker said that, to his knowledge, there had always been a multiem- ployer contract covering bakeries. At one time there were four bakeries in Springfield-Colonial, Holsum, Taystee, and Kroger-but only two, Colonial and Holsum, survive. He stated the 1978-80 contract pro- vided for bumping rights to journeyman bakers from one plant to the other-"if they lost employment." The cur- rent contract, he said, only allows "shop-wide seniority." The current contract also made a change in wages paid to journeymen, according to Baker. For example, under the previous contract, a journeyman doing a janitor's work was paid the regular journeyman's rate, but under the current agreement a journeyman doing janitor's work is paid only at the janitor's rate. 8 Baker explained that a journeyman's job is varied and could be "complex" as in the case of dough mixer. There have been changes in the industry over the years, he said. His apprenticeship had taken 3 years, but currently an apprenticeship takes only 2 years. Lee Roy Thomas, a journeyman baker and a member of the Union's 1980 negotiating committee, testified that the union membership voted "to do away with the seniority contract-wide and go to just a shop seniority, plant se- niority essentially." To effect such change the Union proposed that section 8 read: Section 8. Any underhand or apprentice who suc- cessfully bids on a Journeyman Bakers vacancy 7 Baker said union records indicate withdrawal cards were issued to persons named Bellinger as follows: June 15, 1960 (George); January 2, 1962; September 25. 1969 (Dave); August 24, 1970 (Dave). and August 18. 1971. Bellinger testified later on rebuttal that he had a son named David Michael Bellinger who had worked as a baker beginning around 1969. Bellinger thought he (himself) had taken out the withdrawal card in 1960, possibly another one in 1962 and that his son had taken out the other cards later in 1969, 1970, and 1971. 8 Baker said jobbers or apprentices "always get paid for the job they work." Thus, an apprentice doing a journeyman baker's job is paid at the journeyman's rate. 512 COLONIAL BAKING COMPANY shall be considered temporary until completion of a 20-working day apprentice period or until he ac- quires his Journeyman status. Any underhand who bids on a journeyman job and works it over twenty (20) days cannot move off the job unless he is laid off or cut [illegible]. The Company agreed to the first sentence but not the second. Thomas said the negotiating committee went along with the deletion, and the language in the first sen- tence was ratified on June 28. Thomas said the wage and benefit provisions were made retroactive to May 1. Thomas testified that he had been a member of the Union since 1968 and a journeyman for only a few months (since March 1981). He explained how he became a journeyman under that "current agreement" as follows: First there had to be a job opening in the bake shop. Then out of distribution, first, they posted the job in the bake shop for bids. The one with the most seniority who signed the bid sheet got the job out of distribution. . . . Then I go out on the job. I have a 20-working day apprenticeship. Once I complete that 20-day ap- prenticeship then I can go before the union and ask for my baker's card. In the earlier years he said it took 2 years to complete an apprenticeship.? Jurisdiction is not an issue. Respondent Local 235 is admittedly a labor organization within the meaning of the Act, and Respondent Colonial, which produces and distributes bakery goods at nonretail, is admittedly an employer engaged in commerce within the meaning of the Act. J. R. Langston is admittedly a supervisor and an agent of Colonial, and Gene Baker is admittedly an agent of Local 235. Thus, the action of each of these individuals is clearly attributable to the organizations with which they are associated. Section 8, as it appeared in the 1978-80 agreement, gave bumping rights or privileges to a "member of Local 235 covered by this contract." The language of the sec- tion was applied by both Respondent Employer and Re- spondent Union in mid-June to deny Bellinger employ- ment because he lacked membership in the Union. In doing so. Colonial violated Section 8(a)(1) and (3) of the Act, and Local 235 violated Section 8(b)(1)(A) and (2) of the Act. 9 The Union's brief (pp. 13-14) contains this explanation: . at one time the procedures for obtaining journeyman status was serving a three year apprenticeship and then working as a journey- man for a period of time and when after working as a journeyman the person was then classed as a journeyman by the Union. Later this period was reduced to two years followed by actual employ- ment as a journeyman G.C. Exh. 21 No person was awarded jour- neyman status unless he was working as a journeyman at the time of admission to journeyman status by the Union. Under the contract which expired May 1., 1980, the period was two years work as a helper or apprentice followed by actual work as a journeyman [G.C. Exh. 2]. Under the current agreement the requirement is that the em- ployee actually work for twenty days as a journeyman before being accepted as a journeyman lEmp. Exh 2]. Section 8(a)(1) makes it unlawful for an employer "to interfere with, restrain, or coerce employees in the exer- cise" of their Section 7 rights, which include the right to join and support a union as well as the right to refrain from doing so. Section 8(a)(3) forbids discrimination by an employer in regard to employment "to encourage or discourage membership in any labor organization." Sec- tion 8(b)(2) makes it unlawful for a union "to cause or attempt to cause" an employer to discriminate in viola- tion of Section 8(a)(3).10 Section 8 of the agreement, by giving bumping rights only to members of Local 235, encouraged union activ- ism and discriminated against others who would have de- sired not to engage in such activity. Respondent Colonial appears to concede in its brief (p. 8) the illegality of section 8 as it appeared in the 1978-80 agreement and faults the General Counsel for overlook- ing the "crucial" fact that the section was revised in a new contract and made retroactive by virtue of the June 24 stipulation (ratified on June 28) to May 7. However, such retroactivity does not help the Respondents for they used and applied the old (1978-80) section 8 lan- guage in mid-June when Bellinger was seeking employ- ment." Thus, giving retroactive effect to the new con- tract resulted in no change in the treatment of Bel- linger-and provides no defense for Respondents' ac- tions. I reject the suggestion of Colonial that it was "an in- nocuous conversation" between Langston and Charging Party Bellinger in which Langston merely asked Bel- linger "to verify" his journeyman's status with Local 235. Bellinger understood-and reasonably so-that Langston was saying to him on June 13 that he could have a job if he got his union membership straightened out. And it is abundantly clear, from the treatment it ac- corded him, that the Union considered membership as the sine qua non to employment at the bakery. I credit Bellinger's testimony that Langston indicated to Bellinger on June 13 that nonjourneymen were at that time performing journeymen work at Colonial and that a journeyman's job was available. Langston's testimony that his subsequent search of company records failed to reveal that a journeyman's position was available at that time was not persuasive. 12 i' Sec 8(bX2) provides in pertinent part: (b) It shall be an unfair labor practice for a labor organization or its agents-- (2) to cause or attempt to cause an employer to discnriminate against an employee in violation of subsection (a)(3) or to discrimi- nate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership ... " The General Counsel contends sec. 8 as it appeared in the 1978-80 was never changed. Says the General Counsel in his brief (p. 9): "No new agreement has been consummated and signed and no notice of can- cellation or termination has been served by either party." I The fact that Busby may have been still employed at the time of the hearing is, therefore, of no significance. Langston had earlier stated that Continued 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The assertion that Bellinger may not be qualified be- cause he was away from the bakery business for some- time after leaving it in the early sixties is not convincing. The changes in technology and operations that had sup- posedly taken place were never mentioned by the Com- pany or the Union when Bellinger sought employment in June 1980. The Union readily gave him journeyman's status in 1978, only 2 years earlier, when he deposited his withdrawal card and began paying dues again. The argument (advanced by the Union as well as by Colonial) that to allow Bellinger bumping rights would encourage union membership in violation of the Act is fallacious. Such would be the case only if Bellinger were given such employment as a journeyman predicated on newly reinstated union status. He could, and should, have been given such employment, over an apprentice or underhand, because he was a qualified journeyman. Teamsters Local 357 [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961), relied on by Respond- ent Colonial, is not a "clear and unequivocal" precedent supporting Respondents in the instant matter. That case was concerned only with the legality of hiring hall ar- rangements. In that case the Court, unlike the Board, re- fused to hold such provisions illegal per se, while conced- ing they may well operate to encourage union member- ship and need regulation. In doing so it relied on legisla- tive history indicating that Congress did not intend to outlaw hiring halls. But the instant case does not involve a hiring hall arrangement. What the Court said there that is significant in the case at bar is: . . the Act aims at every practice, act, source or institution which is used to encourage and discour- age union membership by discrimination in regard to hire or tenure, term or condition of employment. Id. at 676. Bellinger was discriminated against in regard to hire and tenure of employment and in a way that encouraged union membership. 13 the Company kept no records showing what classification its employees held; the Union had to be consulted, he said, to determine whether an employee is a journeyman or a nonjourneyman. The language of the con- tract did not limit bumping to journeymen working in Springfield as claimed, and it was not established that the contract was so applied. Langston in fact told the Board's attorney in November that any union journeyman with a baker's card could bump another person without a card doing such work. iS The court's holding in N.L.R.B. v. Local 269. International Brother- hood of Electrical Workers, AFL-CIO [Mercer County Division], 357 F 2d 51 (3d Cir. 1966), cited by Colonial, affords Respondents no assistance. The contract provisions in issue in the case, which called for Local 269 to maintain a register of employment applicants (in four groups based on qualifications), was found to be "not necessarily" discriminatory but Local 269 continued to use it "as if it had expressly conditioned referral upon union membership" in violation of Sec. 8(bX2) and (1)(A) of the Act. Nor is Spaw Glass, Inc., 233 NLRB 1288 (1977), apposite. In holding there was no violation for the Union in that matter to refuse to issue a referral card to Jesus Santos (with the result that he lost his job), the Board noted (I) the referral agreement in issue, concededly lawful, re- quired the employer "to call the Union Hall for 75%" of the employer's total work force, (2) there was "no credible evidence" that the union re- fused to issue Santos a referral card because of his lack of union member- ship, and (3) it was not shown that "the Employer was contractually free to hire Santos without a referral card as part of the 25 percent not re- quired to come from the union hiring hall." Colonial maintains it did not refuse to hire Bellinger. It indicates Bellinger is to blame for failing to obtain a job at Colonial as he "rejected a position of underhand." Co- lonial also notes that Bellinger "never contacted Mr. Langston, or the company again" so that it could "ex- plore" such conditions as Bellinger's baker's status, his qualifications, and contract coverage. But to state such contentions is to answer them. The contract was applied by the parties as written, and in doing so Bellinger was denied employment, in spite of being a journeyman, for lack of union membership. Understandably, Bellinger re- jected underhand status, which he had previously held and afforded him no security. And, understandably, he did not return to speak to Langston again for what ap- peared to be a futile act; he had not been able to get the "O.K." from the Union that Langston had told him to get. The Union, when asked to give clearance to Bellinger for a journeyman's job at Colonial, invoked an invalid consideration-union membership-which operated to deny him such employment. The Union, for its part, maintained and applied section 8, as it appeared in the 1978-80 agreement, to give special rights to certain per- sons based on union membership. The John Ray Thomas case indicates, contrary to the Union's argument, that Bellinger was the object of unfavorable disparate treat- ment. ' 4 Based on the foregoing, I enter the following conclu- sions of law: 1. The Respondent Employer, Colonial Baking Com- pany of Springfield, is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Union, Bakery & Confectionery Workers Local No. 235, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents maintained and gave effect to section 8 of the 1978-80 collective-bargaining agreement and thereby conditioned the hire and tenure of George David Bellinger at Respondent Employer's plant in Springfield, Missouri, upon his obtaining clearance by, 14 In 1979, Thomas was admitted to journeyman status after allowing his dues to lapse. His employment in Booneville, rather than Springfield, or the fact that he was working as a journeyman, hardly justifies the dif- ferent treatment accorded. Thomas had been a member of Local 235, as Bellinger had been, and was subject to the same rules. Thomas had been allowed to go to work in a journeyman's position, although presumably paying the higher journeyman's dues as the Union's rules required. My holding here as to the Union in no way conflicts with the decisions cited in its brief (pp. 15-16) in support of the proposition, incorporated in Sec. 8(b)(l)(A) of the Act, that a union may "prescribe its own rules with respect to the acquisition or retention of membership therein." Quoting the Board in Teamsters Local Union No. 122, IBT (August A. Busch d Ca of Mass. Inc.), 203 NLRB 1041, 1042 (1973), one of Respondent's cases: ... Expulsion from membership in a labor organization is a matter of internal union concern, and does not in and of itself give rise to a violation of the Act. However, when a union seeks to cause the ex- pelled member's discharge from his employment because of his ex- pulsion from the union, this interference with the employer-employ- ee relationship violates Section 8(b)(IXA) and (2). Thus, in this case, the violation did not occur until Respondent attempted to cause, and did cause, the Charging Parties' discharge. What the Board said in that case would apply to a union's interference with an expelled member's effort to obtain employment as well as to causing an expelled member to lose his job. 514 COLONIAL BAKING COMPANY and membership in, Respondent Union. As a result, Bel- linger was discriminated against in violation of Section 8(a)(3) of the Act. Respondent Employer violated Sec- tion 8(a)(1) as well as Section 8(a)(3) of the Act, and Re- spondent Union violated Section 8(b)(2) and (I)(A) of the Act. Having found that both the Employer and the Union have engaged in unfair labor practices, I will recommend as a remedy that they be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondents will be ordered jointly and severally to make Bellinger whole for any loss of earnings resulting from the discrimination. The backpay period is to begin on June 13, 1980, the day that Bellinger appeared at the Union's office and the Em- ployer's place of business seeking employment. The Union is to notify Charging Party Bellinger and Colonial Baking Company in Springfield, in writing, that it has no objection to the employment of Bellinger by Colonial. Colonial is to offer Bellinger the job he would have been hired absent discrimination. The amount of backpay is to be determined in accordance with the decisions in F. W. Woolworth Company, 90 NLRB 289 (1980), Isis Plumbing & Heating Co., 138 NLRB 716 (1962) and, Florida Steel Corporation, 231 NLRB 651 (19 77 ).15 [Recommended Order omitted from publication.] '' The Union's backpay liability is to terminate after it gives the re- quired notification to Colonial and Bellinger. See C B. Display Service. Inc., 260 NLRB 1102 (1982), and Zinsco Electrical Products, 254 NLRB 773 (1981). See also Q.V.L. Construction, Inc., 260 NLRB 1096 (1982), and Harsh Investment Corporation d/b/a The Claremont Resort Hotel and Tennis Club, 260 NLRB 1088 (1982). 515