Frankline Inc.

FRANKLINE, INC. Frankline, Inc. and United Furniture Workers of America, Local 282, AFL-CIO. Case 26-CA- 8863 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 21 December 1981 Administrative Law Judge J. Pargen Robertson issued the attached de- cision. The Respondent and the General Counsel filed exceptions and supporting briefs and the Gen- eral Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority 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 judge 's rulings, find- ings,1 and conclusions as modified , to modify the remedy,2 and to adopt the recommended Order as modified. The judge held that the Respondent , Frankline, Inc., violated Section 8(a)(1) and (5)3 of the Na- tional Labor Relations Act by unilaterally chang- ing its practice of recognizing stewards designated by the Charging Party , United Furniture Workers of America, Local 282, AFL-CIO (UFWA or Union), the Union that represents Frankline's pro- duction and maintenance workers. The judge also held that Frankline violated Section 8(a)(1) and (5) of the Act by unilaterally changing its practice of laying off employees for lack of work and , instead, discharging them . In addition, the judge held that Frankline violated Section 8(a)(1) and (3)4 of the Act by discharging employee Gladys Cook after refusing to recognize her as a steward because Frankline believed that if it recognized Cook as a steward, the superseniority provision of the parties' expired collective-bargaining agreement would have prevented Frankline from proceeding with its planned discharge of Cook. Moreover, the judge ' The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. $ In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621. Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 29 U.S.C. § 158(a)(l) and (5). 4 29 U.S.C § 158(a)(1) and (3). 263 held that the contract clause providing supersenior- ity for stewards was a term or condition of em- ployment that survived expiration of the contract. Frankline excepts to all the foregoing conclusions of the judge. In his formulation of a remedy , the judge further found that if employee Cook, whose position in Frankline's upholstery department was eliminated, has sufficient regular seniority to secure another position in that department, she is not entitled to exercise her superseniority as a departmental stew- ard to obtain a position held by a more senior em- ployee. The General Counsel excepts to this hold- ing, as well as to the judge's conclusion that Frank- line's decision to eliminate Cook's position was not discriminatorily motivated and to his finding that further proceedings are required concerning Cook's reinstatement and backpay rights. We address these issues seriatim. 1. Frankline contends that because employee Cook was selected as upholstery department steward at a time when the collective-bargaining agreement had expired, Frankline was not required to recognize Cook as steward . The contract expired on 31 De- cember 1980. On 9 January 19815 Frankline sent a letter to the UFWA stating that since the contract had expired, Frankline could not legally withhold union dues. The letter added : "In reference to the grievance and arbitration procedure, Frankline, Inc., for the time being will continue to follow Section I, Steps 1, 2, and 3 of Article VIII of the expired contract," i.e., steps 1-3 of the grievance procedure. The UFWA sent Frankline a letter dated 22 January notifying Frankline that Gladys Cook had been elected upholstery department steward. Frankline's president read the letter on 27 January or 28 January, and a decision was made not to recognize Cook as steward . This decision was conveyed to the UFWA in a meeting on 2 February and reiterated in a letter from Frankline to the UFWA dated 5 February. Frankline stated that it would continue to recognize as steward the employee who had been the prior upholstery de- partment steward. We agree with the judge that Frankline 's refusal to recognize Cook as steward violated Section 8(a)(1) and (5), but on the following grounds. Frankline's employees have a right under Section 76 of the Act to be represented by representatives of their own choosing, and Frankline has a con- comitant statutory obligation to recognize the des- All dates mentioned are in 1981 unless otherwise indicated. ° 29 U.S.C. § 157. 287 NLRB No. 27 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ignated representatives of its employees . Missouri Portland Cement Co., 284 NLRB 432 ( 1987); Torin Corp., 269 NLRB 433 (1984); Native Textiles, 246 NLRB 228 (1979). Before it may lawfully refuse to accept a union's designation of an individual as its agent, an employer must demonstrate a valid reason for the refusal , such as "persuasive evidence that the presence of the particular individual would create ill will and make good faith bargaining im- possible." KDEN Broadcasting Co., 225 NLRB 25, 35 (1976). Accord: Sahara Datsun , 278 NLRB 1044 ( 1986); Fitzsimons Mfg. Co., 251 NLRB 375 (1980). Frankline has made no such showing here.? Ac- cordingly, Frankline's refusal to recognize the Union's designation of Cook as steward violated Section 8(a)(1) and (5). See Native Textiles, supra.8 II. On 30 January Frankline eliminated Cook's job and discharged her. We agree with the judge that Cook's discharge violated Section 8(a)(1) and (3) because it resulted from Frankline's discriminatory refusal to recognize her as a steward, an action which, in Frankline's view, would have precluded her from being discharged.9 r We agree with the judge, for the reasons stated in his decision, that Cook was the only steward in the upholstery department and there was no confusion concerning which employee was upholstery department steward after Cook's election as steward 8 Although the judge noted that employees have a right to be repre- sented by their designated representatives , he went on to find a violation on the basis that Frankline's change of its practice of recognizing stew- ards on notice from the Union constituted a unilateral change of a "working condition subject to mandatory bargaining " We do not premise our finding of a violation on this basis because the identity of a party's bargaining representative is not a mandatory subject of bargaining and, therefore, unlike such subjects, the Respondent was not free either to "insist on it to impasse or to implement it " Missouri Portland Cement Co, 284 NLRB 432 An employer's insistence to impasse on a proposal regarding employees' choice of bargaining representative generally vio- lates Sec 8(a)(5) for the twofold reason that it "settles no term or condi- tion of employment" and that it "weaken [s] the independence of the 'rep- resentative' chosen by the employes [sic] " NLRB Y Borg-Warner Corp, 354 U S 342, 350 (1958) Likewise, an employer could not implement such a proposal over the union's objection whether the proposal consti- tuted a change or not As in Missouri Portland, 284 NLRB 432 "[t]he question of who shall represent bargaining unit employees is not a subject on which an employer can insist on having its way except where the presence of the chosen representative would make good-faith bargaining virtually impossible " As noted, Franklme has not met that burden here Because Frankline 's refusal to recognize Cook as steward was motivat- ed in part by Frankline's desire to avoid giving effect to the supersenior- ity arrangement by which the employees are guaranteed the presence of their chosen union representative for on-the-job grievance handling, we adopt the judge's finding that Frankline also violated Sec 8(a)(3) and (1) of the Act 9 The judge also found that Frankline violated Sec 8(a)(5) and (1) of the Act through its discharge of Cook He reasoned that the contract had established a practice of laying off or transferring employees, rather than discharging them , when lack of work eliminated their jobs and that Frankline's discharge of Cook thus represented a unilateral change in conditions of employment We need not decide whether the judge cor- rectly read the contract about this matter because we conclude , under the circumstances here, that finding and remedying an 8(a)(5) violation on these grounds does not effectuate the purposes of the Act As Franklme points out in its exceptions, on the third day after Cook 's discharge, In formulating a remedy for the unlawful dis- charge, the judge ruled that if Cook, following the elimination of her job, had a right under the layoff provisions of the contract to retain a job in the up- holstery department through the exercise of her regular seniority, she was not entitled to use her superseniority as a departmental steward to obtain the job of an upholstery department employee who had more regular seniority than Cook. The General Counsel excepts, arguing that Cook was entitled to use her superseniority as a steward to displace a more senior employee in the upholstery department without regard to whether Cook's regular seniority would be sufficient for her to retain employment in the department. In contrast, Frankline argues that Cook had no superseniority rights because super- seniority provisions relate solely to the relationship between the employer and the Union and, there- fore, need not be honored by the employer after contract expiration. Frankline's contention is without merit. Super- seniority is a mandatory subject of bargaining. Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), enf. denied on other grounds sub nom . Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963); Proof Co., 115 NLRB 309 (1956), enfd. 242 F.2d 560 (7th Cir. 1957). An employer whose employees are represented by a labor organization generally may not make unilateral changes with re- spect to mandatory subjects of bargaining. NLRB v. Katz, 369 U.S. 736 (1962). This principle remains applicable after contract expiration except for a few subjects for which there are special reasons justifying exclusion from this rule. See Indiana & Michigan Electric Co., 284 NLRB 53 (1987). Super- seniority is not among the exceptions. Indeed, Beth- lehem Steel, the seminal decision establishing cer- tain exceptions in the postcontract-expiration set- ting to the prohibition against unilateral changes, also held the unilateral discontinuance of supersen- iority following contract expiration to violate Sec- tion 8(a)(5) of the Act." 0 when the Union met with Frankline to grieve the matter and advise it that the Union read the contract as to preclude discharges for such rea- sons, Franklme immediately agreed to convert into layoffs the discharges of Cook and two other employees who had been discharged at the same time In these circumstances, and because make-whole relief is provided for Cook as part of our remedy for the 8(a)(3) violation, we dismiss this 8(a)(5) violation and amend the recommended Order accordingly 10 Our dissenting colleague's view that superseniority provisions do not survive contract expiration is based on his personal view that griev- ance procedures do not survive contract expiration We reject that view for the reasons we stated in Indiana & Michigan Electric Co, supra Fur- ther, we note that even under our colleague's view in that case, an em- ployer has an obligation at all times to meet and confer with a bargaining representative about employee grievances Thus, our colleague acknowl- edges that grievances continue to exist after contract expiration It would seem that stewards would still be necessary to articulate and process Continued FRANKLINE, INC. 265 Regarding the General Counsel's contention con- cerning applicability of the superseniority clause to the situation of employee Cook, the Board ad- dressed the question of the validity of supersenior- ity clauses in Gulton Electro-Voice, 266 NLRB 406 (1983) (Gulton 1), enfd. sub nom. Electrical Workers IUE Local 900 v. NLRB, 727 F.2d 1184 (D.C. Cir. 1984). In that case the Board overruled the holding of Electrical Workers UE Local 623 (Limpco Mfg.), 230 NLRB 406 (1977), enfd. sub nom. D'Amico v. NLRB, 582 F.2d 820 (3d Cir. 1978), that a super- seniority clause could validly apply to a union offi- cer who was not a steward and did not perform steward-like functions as long as the officer's re- sponsibilities had a "direct relationship to the effec- tive and efficient representation of unit employees." Instead, the Board reaffirmed the earlier decision in Dairylea Cooperative, 219 NLRB 656 (1975), enfd. sub nom. Teamsters Local 338 v. NLRB, 531 F.2d 1162 (2d Cir. 1976), that clauses that provide super- seniority for stewards limited to layoff and recall situations are presumptively valid . The Board rea- soned in Gulton I that superseniority clauses, which necessarily discriminate in favor of the union offi- cials to whom they apply and discriminate against all other unit employees, are nevertheless valid when they serve to retain on the job union repre- sentatives responsible for processing grievances. The Board concluded that s'liperseniority clauses are justifiable only to the extent that they ensure that stewards or other union officials having stew- ard-like functions will be able to maintain an on- the-job presence. The teachings of Gulton I were amplified in Gulton Electro-Voice, 276 NLRB 1043 (1985) (Gulton II). There the Board concluded that a chief steward could not properly exercise her supersen- iority rights to avoid being bumped to a lower job classification. The Board reasoned that because the chief steward's responsibilities were plantwide, she did not need to retain any particular job to perform effectively her plantwide grievance-handling duties. The Board contrasted that case to a situation in which a steward served only the employees in one those grievances after contract expiration even if, as in our colleague's scheme of things, no formal grievance procedure remained in effect. Ac- cordingly, contrary to the conclusion our colleague reaches in this case, supersenionty for stewards in such circumstances still would be justified by their role in grievance processing and on-the-job contract administra- tion. We also disagree with our dissenting colleague 's additional rationale that superseniority fails to survive contract expiration because it is a pro- vision governing the employer-union relationship . As noted above, super- seniority is a matter related to "wages, hours, and others terms and con- ditions of employment" under Sec. 8(d) of the Act and, therefore, is a mandatory subject of bargaining. As a provision governing seniority, it affects employees' rights concerning layoffs and recalls . Thus, supersen- iority provisions clearly affect the employer-employee relationship and not just the employer-union relationship zone of a plant or the employees on a particular shift. In those circumstances, the Board indicated that the steward could properly exercise her super- seniority rights when necessary to retain a job in the zone or on the shift that she served. It is clear from the holdings of Gulton I and Gulton II that maintaining stewards on the job so they may perform their functions as stewards is the only permissible basis for superseniority. Accord- ingly, we conclude in this case that the judge was correct in holding that Cook is not entitled to exer- cise her superseniority as upholstery department steward to displace a more senior employee if Cook's regular seniority is sufficient for her to retain a position in the upholstery department.) i As the judge correctly concluded that the record in this case does not provide a sufficient basis from which to determine whether Cook is entitled to retain a position in the upholstery department on the basis of her regular seniority or whether in order to retain a position in the upholstery depart- ment Cook must invoke her superseniority, the res- olution of this issue is left to the compliance por- tion of the proceedings. ORDER The National Labor Relations Board orders that the Respondent, Frankline, Inc., Hernando, Missis- sippi, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Furniture Workers of America, Local 282, AFL-CIO, as the exclusive bargaining representative of its employees in the unit described below by refusing to recog- nize shop stewards designated by the Union: All production and maintenance employees, in- cluding employees employed in the frame, up- holstery, packing and shipping, maintenance and cleanup, cutting, sewing, tufting, and re- ceiving departments and truck driver , exclud- ing all office clerical employees, watchmen, as- sistant foremen, foremen, foreladies, guards and supervisors as defined in the National Labor Relations Act. 11 We overrule Textron. Inc., 252 NLRB 1005 (1980), and Parker Han- nifin Corp., 231 NLRB 884 (1977), to the extent that they permit the use of supersemority when it is not necessary to maintain a steward on the job in the department or other segment of the work force that the stew- ard serves In our view these cases were implicitly overruled by the rea- soning of Gulton I and Gulton II. Two similar cases relied on by the General Counsel , Hospital Service Plan of New Jersey, 227 NLRB 585 (1976), and Stage Employees IATSE Local 780 (McGregor- Werner), 227 NLRB 558 (1976), were overruled by our intervening decision in Gulton II. 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Discharging its employees because its em- ployees are elected to union steward positions. (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) Recognize shop stewards designated by the Union. (b) Offer Gladys Marie Cook immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision. (c) Remove from its files any reference to the unlawful discharge and notify Gladys Marie Cook in writing that this has been done and that the dis- charge will not be used against her in any way. (d) Preserve and, on 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. (e) Post at its Hernando, Mississippi facility copies of the attached notice marked "Appen- dix."' 2 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, concurring in part and dis- senting in part. I agree with my colleagues, for the reasons stated by them, that the judge correctly concluded that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize stewards 12 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " designated by the bargaining representative of its employees. I also agreed with their finding, at In. 9, that the 8(a)(5) violation found by the judge re- garding the Respondent's job action against Gladys Cook should be dismissed. I disagree with their finding that superseniority survives contract expira- tion. Nonetheless, I would find, ag do my col- leagues, that the Respondent violated Section 8(a)(3) and (1) of the Act when it refused to recog- nize Cook as steward because it believed that appli- cation of the superseniority provision in the parties' expired contract would have required it to alter its plan to terminate Cook on the legitimate elimina- tion of her position. The credited facts follow. On 9 January 1981' the Respondent notified the Union in writing that it could no longer legally withhold union dues, but would adhere to the first three steps of the griev- ance procedure.2 By letter dated 22 January, the Union notified the Respondent that Gladys Cook had been elected upholstery department steward. The Respondent had previously decided to elimi- nate Cook's position for legitimate business reasons. On reading the Union's letter on 27 or 28 January, the Respondent decided not to recognize Cook as steward. The Respondent made this decision to avoid extending to Cook rights expressed in the su- perseniority clause of the expired contract-rights which the Respondent felt would force it to lay off or transfer Cook rather than terminate her as planned . On 30 January Cook and two other em- ployees were notified by the Respondent that their jobs had been eliminated and that they were termi- nated for lack of work. On 2 February the Respondent and the Union met. Cook was also present. The Respondent in- formed the Union of its decision not to recognize Cook as steward. The Union persuaded the Re- spondent to reverse its decision to terminate Cook and the other employees and to treat them as lay- offs. On 5 February the Respondent and the Union again met with Cook. The Respondent presented Cook a letter offering what the letter alleged to be any of several jobs to which she was entitled, i.e., those jobs that were being performed by less senior employees. Also on 5 February, the Respondent re- iterated in a letter to the Union its intention not to recognize Cook as steward. Concerning the superseniority clause, I find, con- trary to my colleagues, that it does not survive I All dates are in 1981 unless otherwise indicated 2 The Respondent later made it clear that it would not adhere to the arbitration provision of the expired contract FRANKLINE, INC. contract expiration. In Bay Area Sealers, 3 the Board stated: Although an employer's contractual obliga- tions cease with the expiration of the contract, those terms and conditions established by the contract and governing the employer-employ- ee, as opposed to the employer-union, relation- ship survive the contract and present the em- ployer with a continuing obligation to apply those terms and conditions unless the employer gives timely notice of its intention to modify a condition of employment and the union fails to timely request bargaining, or impasse is reached during bargaining over the proposed change. [251 NLRB at 90.] As I noted in my partial dissent in Indiana & Michigan Electric Co.,4 the Board, consistent with the distinction drawn in Bay Area Sealers, has held that there is no general statutory postexpiration duty to follow contract procedures ordering the employer-union relationship with respect to such mandatory bargaining subjects as union security, dues checkoff,5 and arbitration.6 I also indicated, for the reasons set forth therein, that I would hold the same for the contractual grievance process. Be- cause superseniority is also a provision ordering the employer-union relationship, I find it, too, expires with the contract. In Gulton Electro-Voice7 the Board reiterated the standard for determining entitlement to supersen- iority rights. It stated: We will find unlawful those grants of super- seniority extending beyond those employees responsible for grievance processing and on- the-job contract administration. We will find lawful only those superseniority provisions limited to employees who, as agents of the union, must be on the job to accomplish their duties directly related to administering the col- lective-bargaining agreement . [266 NLRB at 409.] Once a co itract has expired, freeing an employer from the obligation to adhere to the contractual grievance procedure, the "responsibility for griev- ance processing and on-the-job contract administra- tion" is eliminated. With the elimination of these 3 251 NLRB 89 (1980), enfd as modified on other grounds 665 F.2d 970 (9th Cir. 1982). 4 284 NLRB 53 (1987) 1 do not find superseniority "so intertwined with substantive employee rights that [it) must be honored even after contract expiration " 5 Bethlehem Steel Co., 136 NLRB 1500 (1962), enfd in relevant part 320 F.2d 615 (3d Cir. 1963). 6 Hilton-Davis Chemical Co, 185 NLRB 241 (1970). 7 266 NLRB 406 (1983), enfd sub nom. Electrical Workers IUE Local 900 Y. NLRB, 727 F.2d 1184 (D C. Cir 1984). 267 responsibilities the only lawful justification for su- perseniority, with its inherent tendency to discrimi- nate against employees for union-related reasons,8 is extinguished . I would not therefore find that su- perseniority, an outgrowth of the employer-union relationship related exclusively to the collective- bargaining relationship, survives contract expira- tion.9 The Respondent now argues, as I have found, that superseniority does not survive the contract. At the time the Respondent was notified of Cook's selection as steward, however, it apparently viewed superseniority as viable, and refused to rec- ognize Cook as steward in order to avoid whatever impact superseniority might have on its decision to terminate Cook. I find such conduct, motivated by a clear intent to thwart what the Respondent then believed to be Cook's rights as steward, prohibited by Section 8(a)(3) and (1) of the Act. Just as an employer action based on an erroneous fear or belief of an employee's union activity is prohibited by Section 8(a)(3),10 the Respondent's erroneous belief that superseniority applied does not render its conduct any less culpable under the Act. The Respondent denied Cook recognition as steward because it wanted to terminate her and did not want her rights as steward to alter the course of its decision. Such motivation, even when pursued on the basis of faulty information, has a tendency to discourage employee union involvement and to interfere with employees in their rights guaranteed by Section 7 of the Act. Accordingly, I find that by such action the Respondent violated Section 8(a)(3) and (1) of the Act.11 8 Datrylea Cooperative, 219 NLRB 656, 658 (1975), enfd sub nom. Teamsters Local 338 v. NLRB, 531 F.2d 1162 (2d Cir 1976) 9 As with the grievance and arbitration provisions , I would find that an employer may refuse to follow a contractual superseniority provision, but must bargain with a union about any alternative to be used. See my partial dissent in Indiana & Michigan Electric Co., supra I would reverse Bethlehem Steel, supra, to the extent it is inconsistent with my view that superseniority does not survive contract expiration 10 NLRB P. Link Belt Co , 311 US 584, 590 (1941 ); Monarch Water Systems, 271 NLRB 558 fn. 3 (1984). 11 I agree with my colleagues that in the case of a viable supersenior- ity provision, employees are not entitled to exercise supersemonty to dis- place a more senior employee if regular seniority is sufficient . I also agree that the record in this case does not provide sufficient basis to determine what position, if any, Cook is entitled to, and would leave resolution of that matter, as well as her attendant right to a make-whole remedy, to compliance . Finally, I agree with the judge 's recommendation to leave to compliance the question whether the Respondent 's 5 February offer of reinstatement to Cook constituted a valid offer and tolled the Respond- ent's backpay obligation. 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL notify Gladys Marie Cook that we have removed from our files any reference to her discharge and that we will not use the discharge against her in any way. FRANKLINE, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to recognize or bargain collectively on request concerning the rates of pay, wages, hours, and other terms and conditions of employment with United Furniture Workers of America, Local 282, AFL-CIO as the exclusive bargaining representative of the employees in the following appropriate unit: All production and maintenance employees, in- cluding employees employed in the frame, up- holstery, packing and shipping, maintenance and cleanup, cutting, sewing, tufting, and re- ceiving departments and truck driver, exclud- ing all office clerical employees, watchmen, as- sistant foremen, foremen, foreladies, guards and supervisors as defined in the National Labor Relations Act. WE WILL NOT refuse to recognize shop stewards designated by the Union. WE WILL NOT discharge employees because of their election to the position of union shop stew- ard. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize shop stewards designated by the Union. WE WILL offer Gladys Marie Cook immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. Melvin Ford, Esq. and Margaret Theiner, Esq., for the General Counsel. Stephen H. Biller, Esq., for the Respondent. Robert Spann, for the Charging Party. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard on October 13 and 14, 1981, in Memphis, Tennessee. The charge was filed on February 3, 1981, and amended on March 12, 1981. The complaint, which issued on March 18, 1981, alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act by laying off its employee Gladys Marie Cook because of her elec- tion as union steward in Respondent's upholstery depart- ment. The complaint also alleges that Respondent violat- ed Section 8(a)(1), (3), and (5) of the Act by refusing to recognize and deal with employee Gladys Marie Cook as the union steward of the employees in the upholstery de- partment. On the entire record, my observation of the witnesses, and after due consideration of briefs filed by the General Counsel and Respondent, I make the following 1. FINDINGS' Respondent is engaged in the manufacture of uphol- stery furniture at its Hernando, Mississippi facility. The complaint alleges and Respondent admits that its produc- tion and maintenance employees are represented by the Charging Party (the Union). However, no collective-bar- gaining agreement existed between the Union and Re- spondent during the period from December 31, 1980, to February 9, 1981. The old contract expired on December 31, 1980, and negotiations on the new contract were not concluded until February 9, 1981, when that contract went into effect. By letter dated January 9, 1981, Respondent notified the Union, inter alia, that it would continue to follow steps 1 , 2, and 3 of the expired contract's grievance and arbitration procedure provisions. Respondent's letter did not include an indication that it would continue to follow the arbitration procedure provisions in the ex- pired contract.2 I Respondent admitted the commerce allegations in the complaint On the basis of the allegations and admissions, I find that Respondent is, and has been, at all times material , an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act Respondent also admitted, and I find, that the Charging Party is a labor organization within the meaning of Sec 2(5) of the Act 2 In its answer to the complaint Respondent in par 21 admitted notify- ing the Union in January 1981 that it would not be bound by the arbitra- tion provisions of the expired contract FRANKLINE, INC. At some point shortly before January 22, 1981, Gladys Marie Cook was elected steward for the upholstery de- partment employees. By letter dated January 22, 1981, the Union notified Respondent of Cook's election. Re- spondent's president, Alvin J. Franklin, admitted that he read the Union's January 22 letter3 on January 27 or 28. The expired collective-bargaining agreement contained a "super seniority" clause which provided: It is agreed that the chief steward and not more than one steward in each department designated in writing by the Local Union shall be the last laid off and the first to be recalled only during their term of office, provided they have the skill and abilities to perform the work that is available in their respec- tive departments. However, on January 30, 1981, Respondent notified Gladys Marie Cook and two other employees that their jobs had been eliminated and that they were terminated. Respondent's officials admitted during the hearing that Respondent refused to recognize Cook as the upholstery department steward. The General Counsel contends that those actions-the refusal of Respondent to recognize Cook and her discharge-constitute violations of the Act. II. CONCLUSIONS A. Allegation that Respondent Refused to Recognize Cook as Steward The evidence is undisputed that Respondent refused to recognize Gladys Marie Cook as upholstery department steward after receiving notice of her election. That fact was admitted by Respondent's principal officials. Re- spondent's president, Alvin Franklin, admitted' that he read a January 22, 1981 letter from the Union about Jan- uary 27 or 28.4 That letter read: Mr. Alvin Franklin, President Frankline, Inc. P. O. Box 446 Hernando, MS 39632 Dear Mr. Franklin: This letter is to notify you that Gladys Marie Cook has been elected Steward in the . Upholstery Department at your Frankline Plant. If you have any questions concerning this matter, please advise. Sincerely, /s/Willie Rudd a In its brief Respondent relies on an assertion by Chief Steward Bur- dett in her pretrial affidavit in arguing that Cook was not elected until the week of January 29, 1981, and that the Union 's letter was actually mailed later but predated. The record does not support that argument Although some confusion does exist, the evidence is substantial that Cook was elected steward before January 22, 1981, and I so find 4 Union Vice President Spann testified that Respondent Vice President Caldwell asked him about Gladys Cook 's election as steward around Jan- uary 21 , 1981. Although I credit Spann's testimony and find his testimony reveals that Respondent knew of Cook's election around January 21, that determination is not crucial to my ultimate findings here. Willie Rudd, President UFWA Local 282, AFL-CIO 269 Franklin, along with Vice President in Charge of Pro- duction Manley Caldwell and Personnel Manager Hou- seal, admitted that the decision was made that Respond- ent would not recognize Cook as steward. According to the testimony of those officials, that decision was never changed-from January 27 or 28, when Franklin read the Union's letter, Respondent continued to refuse to recognize Cook as steward. When asked why Respondent refused to recognize Cook, Franklin and Caldwell responded that they felt (1) Respondent had no contractual obligation to recognize Cook following the December 31, 1980 expiration of the contract with the Union; and (2) since the expired con- tract required that only the steward should be recog- nized in each department,5 they elected to continue to recognize Willie Rayborn,6 the upholstery employee who served as steward until Cook was elected.' 1. The two stewards dilemma Concerning this issue, I notice that the Union's Janu- ary 22 letter (see above) was drafted in the manner the Union had regularly used in notifying Respondent of the election of stewards. For example, on July 27, 1979, the Union, by letter to Franklin from Local 282 President Willie Rudd, states: This letter is to notify you that Willie Rayborn has been elected Steward in the Upholstery Line De- partment at your Frankline Plant. On June 9, 1978, Rudd wrote Franklin: This letter is to notify you that L. B. Robertson has been elected Steward at your Hernando plant. Additionally, in the Union's January 22, 1981 letter re- garding the election of Cook, Respondent was asked to advise the Union if they had any questions. Nothing was said to the Union in that regard until after the Union grieved Cook's discharge on February 2, 1981. If Re- spondent was actually concerned with whether Cook, the former Steward Willie Rayborn, or both, were being designated upholstery department steward (s), it could 8 In addition to the provision of the expired contract cited above, that contract contains other applicable provisions including. ARTICLE IV, Section 3. The Company agrees to recognize the stewards and the right of the Union to select any of its members to act as stewards ARTICLE IX, Section 13. The Union shall furnish the Company with the names of the department Shop Stewards , the Chief Stew- ard, and all members of the Grievance Committee within thirty (30) days from the execution of this Agreement, and shall promptly notify the Company of any change therein. Respondent contended that the Union's January 22 letter was unclear since it did not reflect that former Steward Willie Rayborn was being re- placed by Cook ° However, in a letter dated February 5, 1981, from President Franklin to Union President Rudd, only the expiration of the contract was ad- vanced in support of Respondent's refusal to recognize Cook as steward. 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have simply called Union President Willie Rudd8 and asked that question. It did not do so.9 Finally, on February 2, 1981, after Respondent told the Union during a meeting regarding Cook' s termina- tion that Respondent would continue to regard Willie Rayborn as upholstery steward, Union Vice President Robert Spann told Manley Caldwell, and subsequently wrote Respondent, that Cook, not Rayborn, was the up- holstery steward. Caldwell continued to refuse to recog- nize Cook. As shown above, Respondent advised the Union by the February 5 letter that it would not recog- nize Cook.' o In disagreement with Respondent, I find the evidence shows that no confusion existed as to which employee was being designated as upholstery steward following Cook's election to that post. 2. The expired contract problem Concerning the first of Respondent's alleged grounds for refusing to recognize Cook, supra, that point does not withstand scrutiny. Respondent gave no explanation about why the expiration of the contract justified its rec- ognition of Willie Rayborn, but did not justify the recog- nition of another upholstery employee. Respondent ad- mittedly continued to recognize stewards. On February 5, 1981, it notified the Union that it would continue to recognize those persons who were serving as stewards when the old contract expired. No reason was given in 8 During this period of time Respondent and the Union were engaged in extensive contract negotiations Nevertheless, according to the record evidence, Respondent said nothing to the Union about its alleged confu- sion as to which upholstery employee was to serve as steward 9 Vice President Caldwell testified that he was informed by Personnel Manager Houseal that Chief Steward Clara Burdett told Houseal that the Union planned to use two stewards-presumably Cook and Rayborn-in upholstery Clara Burdett denied that she ever made such a statement to Houseal or any official of Respondent Although Houseal testified, he was not asked and did not corroborate Caldwell's testimony in that regard Caldwell also testified that subsequent to February 2, 1981, Bur- dett told him that she was mistaken when she said the Union would use two stewards in upholstery Again, Burdett denied that such a statement was made, and Caldwell was not corroborated by Houseal who was al- legedly present during that conversation I credit Burdett's denials I was impressed with her demeanor On the other hand, I find that I am unable to credit the testimony of Caldwell to the extent it conflicts with other credited evidence On several occasions Caldwell's testimony conflicted with that of several other witnesses including witnesses of Respondent For example, I note a critical incident resulted in Caldwell's testimony conflicting with other witnesses including Wesley Houseal According to Caldwell, he told Cook and Robert Spann, on February 2, 1981, that rather than continue to treat Cook as discharged, "we would treat these employees which would be treating them as a layoff, that we would offer them a job." Both Cook and Spann denied that Caldwell made that state- ment Additionally, Personnel Manager Houseal recalled that it was not until after the February 2 meeting with Cook and Spann when Caldwell told him that they would treat Cook as a layoff Additionally, I find unpersuasive Caldwell's contention that Willie Rayborn continued to serve as steward following Cook's election Al- though, according to Caldwell, employee Martha Vaughn appeared with Rayborn in a meeting she had with management on January 23, Chief Steward Burdett was unaware of any instance of Rayborn serving as steward after Cook's election and before her termination Moreover, even if Rayborn accompanied employee Vaughn to the January 23 meeting, that fact would not justify Respondent's refusal to recognize Cook fol- lowing notice from the Union 11 Caldwell admitted calling Willie Rayborn into his office where he asked Rayborn if he was steward Although Rayborn admitted learning that he was no longer steward Caldwell told Rayborn that he would continue to recognize Rayborn the letter or on the record about why Respondent could not recognize newly appointed stewards. i i Vice President Caldwell's testimony does reveal what appears more in line with the true reason why Respond- ent refused to recognize Cook. Caldwell testified that it was during a meeting he had with Alvin Franklin and Wesley Houseal, around January 28, regarding the elimi- nation of jobs including the job of Gladys Cook that the question arose regarding Cook's position as steward. Caldwell testified that he recognized that if Cook was steward, she would have super seniority and, since the plan was to eliminate her position, other arrangements would have to be made in recognition of her supersen- iority Caldwell, Houseal, and Franklin decided at that point to refuse to recognize Cook. That testimony and the entire record make it apparent, and I find, that Re- spondent decided to refuse to recognize Cook as steward in order to avoid extending to Cook the rights expressed in the contract's superseniority clause. Caldwell's testi- mony reveals that he felt the superseniority provisions would force Respondent to make other arrangements about Cook's planned termination. B. Termination of Gladys Cook On January 30, 1981, Respondent notified three em- ployees, including Gladys Cook, that their jobs had been eliminated and that they were being terminated. Respondent's evidence regarding the elimination of jobs it not disputed. According to the evidence, the final decision was made in late January to eliminate four jobs for business considerations. 12 During January, Respond- ent learned that orders stemming from the Dallas and Atlanta markets were slow. Respondent surveyed its op- erations and decided on the job eliminations. Gladys Cook's job was that of an "in-line" inspector. Cook in- spected furniture during the production process. Howev- er, Respondent allegedly determined that the final or "end-line" inspector involved some duplication of Cook's work. It ultimately determined that the function of "in- line" and "end-line" could be consolidated into the job of final (end-line) inspector. On that basis, around Janu- ary 28, Respondent decided to eliminate the "in- line" in- spector job and transfer the entire function to the final inspector position. Respondent has continued since Janu- ary 30, when its decision went into effect, to operate an "in-line" inspector. Therefore, I find nothing illegal in Respondent's action of eliminating the job formerly held by Cook.' 3 1 i The continuation of the status quo following contract expiration would involve continuation of the established practice of recognizing newly elected stewards and not the establishment of a new practice per- mitting Respondent to reject or delay such recognition 12 The fourth job was eliminated on February 2, 1981 13 The General Counsel pointed to various alleged conflicts in the tes- timony of the three managing agents of Respondent and to an alleged ab- sence of documented evidence in arguing that Respondent failed to justi- fy its decision to eliminate Cook's Job Although conflicts in testimony reflect on the credibility of Respondent's witnesses, I have found no con- flicts that would justify my discrediting the evidence supporting Re- spondent's business justification As to the General Counsel's argument that documentation is lacking, I note that Respondent's answer placed the General Counsel on notice regarding its decision to eliminate jobs From Continued FRANKLINE, INC 271 However, the question remains whether Respondent was justified in discharging Cook even though her job was eliminated. Cook testified that she was told of her discharge by Wesley Houseal. Cook asked for her chief steward, Clara Burdett. During the conversation among Houseal, Cook, and Burdett, Burdett asked Houseal , " . what do you mean terminating [Cook] for lack of work. Why don't you lay her off for lack of work." Later during that con- versation Cook asked, "Why don't you let me do some- thing else, Wes, nothing else, let me sweep the floor ... " Cook testified that Houseal responded that she was being terminated for lack of work. 14 The expired collective-bargaining agreement provided in its management-rights clause that Respondent may dis- charge employees "for proper cause, or to transfer or to lay off employees because of lack of work." As shown above, that contract also contained a super seniority clause. Respondent offered evidence regarding only one other job elimination prior to January 30 Manley Caldwell tes- tified that the job formerly held by employee Mary Chambers was eliminated on August 8, 1980, following Chambers' resignation. Therefore, until January 30, 1981, there was no precedent for Respondent discharging em- ployees because of the elimination of the jobs. Following Cook's discharge, Union Vice President Robert Spann met with Manley Caldwell and Wesley Houseal on February 2, 1981, regarding Cook's termina- tion. Cook was also present. According to Caldwell, he decided on the basis of Spann 's protest to reverse his de- cision to terminate Cook15 and the other employees, whose jobs had been eliminated . His decision was that instead of treating those employees as dischargees, he would treat them as layoffs . In line with Caldwell's deci- sion, all of those employees , including Cook, were of- fered the opportunity to bump into jobs held by less senior employees. I find that Gladys Cook was discharged on January 30, 1981 . I also find that the established procedure, as evidenced by the language of the expired contract, and by Respondent's belated recognition that a layoff rather than a discharge was the proper procedure , would have necessitated treating Cook as subject to layoff because of her job elimination. 16 that point the General Counsel could have pursued examination of docu- ments, if questions existed as to Respondent 's elimination of jobs Against that background , I will not draw adverse inferences against Respondent because of any failure to support testimony with documented evidence 14 I credit Cook's testimony regarding her termination Cook im- pressed me as a candid witness On the basis of my impression of her de- meanor, and the record as a whole, I fully credit her testimony 15 Respondent does not contest that Cook was discharged on January 30 However, in a February 3, 1981 letter from Wesley Houseal to Cook, the January 30 incident was referred to as a layoff That letter informed Cook that she was eligible for any of several specified jobs that were being performed by less senior employees is The expired contract provided that Respondent "shall have the right to temporarily lay off employees up to one full day without regard to seniority or stewardship " However, it is clear from the record that Cook was not being temporarily laid off on January 30 She was dis- charged Therefore, I find no basis on which Respondent can justify use of the temporary layoff provision to either excuse its actions or to miti- gate the remedy recommended below It is not disputed that had Cook been treated as sub- ject to layoff on January 30, she would have been eligi- ble to bump one of the less senior employees in uphol- stery or in another department . In that regard, Respond- ent does not contend that any factors existed that would have prevented Cook from filling one of the jobs held by a less senior employee on January 30 Indeed, Respond- ent's February 3 letter to Cook advised her of several jobs that she was eligible to hold. Respondent also con- cedes through the testimony of Manley Caldwell that, but for its refusal to recognize Cook as a steward, it would have been required to apply the super seniority provisions on January 30 and transfer Cook to another job. 17 In light of the above and in view of my finding re- garding Respondent's motive in refusing to recognize Cook as upholstery department steward, I find that she was discharged as a direct consequence of Respondent's efforts to avoid recognizing her as steward. Conclusions In light of my findings of fact, there remains consider- ation of whether Respondent violated Section 8(a)(1), (3), and (5) by refusing to recognize Cook as upholstery steward and by discharging her on January 30, 1981. A. The 8(a)(5) contention Concerning 8(a)(5) allegations , the Board has long held the general principle that established working con- ditions may not be unilaterally changed without negotiat- ing with the employees' bargaining representative even though the applicable collective -bargaining agreement has expired . In considering the question of established working conditions, it is proper to look to the expired contract-not for the purpose of considering that con- tract as a viable extended contract, but for the purpose of determining the established practice (see, for example, NLRB v. Burns Security Services, 406 U.S. 272 (1972), where the Court, in consideration of a successor issue, discussed an employer's obligation not to unilaterally change conditions established by a collective-bargaining agreement even though the agreement had expired; see also Wayne's Olive Knoll Farms, 223 NLRB 260 (1976); Nolde Bros. v. Bakery Workers, 430 U.S. 243 (1977); Gordon L. Rayner, 251 NLRB 89 (1980). Here, the Union continued as bargaining representative . The parties con- tinued to negotiate during January 1981, and a new agreement was reached on February 9, 1981. In light of the above, I have considered the language of the expired contract in reaching my findings. As found in the previous sections of this decision, Respond- ent's practice before January 21 , 1981, was to recognize changes in department stewards on notice from the Union. Prior to that date, Respondent had consistently accepted written notice from the Union even though 17 Although the record reveals that Cook should have been treated as a layoff and permitted to "bump" into a job held by a less senior employ- ee regardless of her status of steward , the record shows, and I find, that on January 28 and 30, Vice President Caldwell thought Cook would be entitled to greater privileges if she had the right to exercise supersenior- ity (see, below , under The Remedy) 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD those notices were similar to the one sent by the Union regarding Cook's election. It is well recognized that employees have the right to representatives (stewards) designated in accord with ac- cepted practices of the exclusive collective-bargaining representative. That right constitutes a working condi- tion subject to mandatory bargaining.18 Therefore, where, as here, an employer unilaterally changes such practices, it commits an 8(a)(5) violation. I find that Re- spondent violated Section 8(a)(5) when it unilaterally changed its practice during January by refusing to recog- nize Cook as upholstery steward. Moreover, I find that that change encompassed not only the upholstery depart- ment, but the entire bargaining unit, as evidenced by Re- spondent's February 5, 1981 letter to the Union. That letter stated in essence that Respondent would not recog- nize any changes in stewards during the period after Jan- uary 1, 1981, until a new collective- bargaining agreement was negotiated. Additionally, the facts demonstrate that prior to Janu- ary 30, 1981, it was Respondent's practice, as evidenced by the management-rights clause of the expired contract, to discharge employees only for cause and "to transfer or to lay off employees because of lack of work." It is axiomatic that matters of discharge and layoff constitute mandatory subjects of collective bargaining . By unilater- ally changing that practice and discharging its employees because of the elimination of their jobs on January 30, 1981, Respondent unilaterally changed an established working condition in violation of Section 8(a)(5) 19 B. The 8(a)(3) Contention As shown above, I find that the testimony of Vice President Caldwell reveals that during a conference around January 28, 1981, involving Caldwell, President Alvin Franklin, and Personnel Manager Houseal, the de- cision was made to refuse to recognize Gladys Cook as upholstery steward because of the belief that recognition of Cook would necessitate other arrangements regarding her termination. Therefore, even though a previous deci- sion may or may not have been made to terminate Cook, 18 Respondent, in its brief, argues that the functions inherent in the union steward provisions of the expired collective-bargaining contract, specifically the supersenionty provisions, are akin to union security and should be open to unilateral change The record shows, however, that by its January 9, 1981 letter to the Union, Respondent agreed to the continu- ation of grievance proceedings to the point of arbitration Stewards serve a crucial role in those proceedings Therefore, I see nothing herein that would support a finding-as Respondent argues-that we are dealing with a uniquely union-related, not employee-related, right The right of employees to representation by their stewards in grievance proceedings may not be likened to union security The Board has consistently found that superseniority provisions should be granted enforcement to the extent they insure the presence of employee representatives Such rulings demonstrate that the essence of those provisions is the protection of em- ployee-not simply union-rights Bay Area Sealers, 251 NLRB 89 (1980), Nolde Bros v Bakery Workers Local 358, 430 U S 243 19 In reaching the conclusion that Respondent violated Sec 8(a)(5) by dishcharging Cook and two other employees on January 30, 1 find that Respondent's motive is irrelevant I find that Respondent violated Sec 8(a)(5) even if a determination should be made at some point in these pro- ceedings that I erred in my finding that Respondent was discriminatorily motivated in its decision to terminate Cook The fact remains that regard- less of its motive, Respondent unilaterally changed a recognized working condition Respondent thereon made a decision to discriminatorily deny Cook recognition that would have, according to Caldwell's belief, necessitated offering Cook transfer or layoff privileges. The reasoning behind Caldwell's action may have been convoluted. Nevertheless, Caldwell' s admissions clearly demonstrate that Respondent's action in denying recog- nition of Cook as steward resulted in it proceeding to the termination of Cook. The effect was discriminatory denial of recognition and discharge, action that violated Section 8(a)(1) and (3) of the Act.20 The effect of illegal discrimination against an employee because that employ- ee has become a union steward is patently discouraging to employee involvement with a union. CONCLUSIONS OF LAW 1 Frankline, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Furniture Workers of America, Local 282, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by refusing to recognize its employee Gladys Cook as steward for its employees in the uphol- stery department about January 22, 1981, has engaged in conduct violative of Section 8(a)(1), (3), and (5) of the Act. By discharging its employee Gladys Cook about January 30, 1981, Respondent has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. As I have found that Respondent unlawfully discharged Gladys Cook, I shall recommend that Respondent be or- dered to offer Cook immediate and full reinstatement to her former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges. I shall further recommend that Respondent be ordered to make Gladys Cook whole for any loss of earnings she may have suf- fered as a result of the discrimination against her.21 20 Counsel for the General Counsel contends that Respondent' s animus against Cook stemmed from the fact that her involvement with the Union was novel activity by a Caucasian The evidence reflects that Cook, who wore a union T-shirt to work for the first time on the day of her dis- charge, was the first white employee elected steward The bargaining unit is approximately 70 percent black, and all other stewards have been black I note also that Respondent's witnesses Franklin, Caldwell, and Houseal are all white In view of my finding above, I find it unnecessary to decide this issue of motivation However, I credit the factual allega- tions supporting the General Counsel's argument That evidence was not rebutted 21 My recommendation includes an offer of reinstatement to Cook However, I find that during a February 5, 1981 meeting that involved Personnel Manager Houseal, Cook, and Robert Spann, Cook was pre- sented with a letter from Respondent dated February 3 By that letter, Continued FRANKLINE, INC. Cook was offered what the letter purported to be any of the several jobs to which she was entitled-t e , those jobs that were being performed by less senior employees Cook, as designated upholstery department stew- ard, was entitled to the benefit of Respondent 's supersenionty practice as expressed in its expired contract . However, neither that practice nor the law requires anything more than that seniority required to enable a stew- ard to continue to be employed or to have preference regarding layoff and recall in the department, and on the shift , where she is serving as steward. If, as it appears, Cook was in a position to return to work in upholstery through use of her regular seniority , it would be improper and illegal to require anything more She should not be given seniority neces- sary to bump more senior employees in absence of necessity for such action. (Darrylea Cooperative, 219 NLRB 656 (1975); Allied Supermarkets, 233 NLRB 535 ( 1977)). However, the record reflects that the issue of Cook 's reinstatement was not completely litigated . Although Respondent's February 3 letter to Cook specifies certain jobs that were purportedly manned by less senior employees, there was no effort to litigate whether those specified jobs were the only jobs available on January 30, the date of Cook 's discharge. Additionally, Cook testified about the reasons why she declined Re- spondent's February 5 offer. Concerning the jobs in upholstery, Cook complained generally that she felt she lacked the ability to perform those jobs without some training . Obviously, Cook should not be permitted to pick and choose the choicest job under the terms of this Order without regard to, or in abuse of, Respondent 's established practice . However, neither should Respondent be permitted to abuse its position by discri- minatorily assigning Cook to a job that requires skills beyond her ability for the purpose of discharging her in the near future . Despite Cook's tes- timony, I find the evidence is insufficient to resolve whether Cook pos- sessed the skills to perform any of the offered upholstery jobs Something more than her opinion is required . Obviously, if it develops that Cook 273 Backpay shall be computed as shown in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as shown in Flor- ida Steel Corp., 231 NLRB 651 (1977).22 [Recommended Order omitted from publication.] lacked the ability to perform any of those jobs, an issue will arise as to her right under supersemonty to bump a senior employee. Moreover, an issue was raised, but not resolved, regarding the seniority of Respondent's remaining inspector , Evelyn Yount. Specifically, a ques- tion was raised whether Yount resigned her employment at one point and broke her seniority . As indicated during the hearing, I could not find that Yount had resigned on the basis of evidence of rumors and opinions. If Yount did resign, Cook may have been the senior inspector on January 30. The record shows nothing more than opinion evidence on the issue of Yount's resignation from both sides, opinions that were not shown to be rooted in competent knowledge of the entire incident-i e., Yount's al- leged resignation. Of course, if the evidence develops that Yount did not resign, Cook may nevertheless be entitled to bump into Yount's position if it is found that Cook lacks the skills and ability to perform any of the jobs manned by less senior employees. Unfortunately, the current record makes resolution of the above ques- tions impossible Therefore, further proceedings may be required to de- termine the precise nature of Cook's reinstatement and backpay rights. In making my findings regarding Respondent 's offer to reinstate Cook, I specifically discredit testimony that Cook was offered reinstatement on February 2. That testimony was denied by both Cook and Robert Spann I was impressed by Cook 's and Spann's demeanor, and I credit their testi- mony. 22 See generally Isis Plumbing Co., 138 NLRB 716 (1962).