Interstate Bakeries Corp.

INTERSTATE BAKERIES CORP. 15 357 NLRB No. 4 Interstate Bakeries Corporation and Kirk Rammage Teamsters Local Union No. 523, affiliated with Inter- national Brotherhood of Teamsters1 and Kirk Rammage. Cases 17–CA–023404 and 17–CB– 006146 June 30, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE On October 31, 2006, Administrative Law Judge Ger- ald A. Wacknov issued the attached decision. The Gen- eral Counsel and the Charging Party each filed excep- tions and supporting briefs. The Respondent Union filed an answering brief to the General Counsel’s and the Charging Party’s exceptions. The Respondent Employer filed an answering brief to the Charging Party’s excep- tions.2 On September 25, 2008, the two sitting members of the Board issued a Decision and Order in this proceed- ing, which is reported at 353 NLRB 122 (2008).3 In that decision, the Board found that the Respondent Employer violated Section 8(a)(3) and (1) and the Respondent Un- ion violated Section 8(b)(1)(A) and (2) by agreeing to endtail, rather than dovetail, the seniority of Charging Party Kirk Rammage, following the merger of two repre- sented units and the inclusion of the previously unrepre- sented Rammage in the merged unit. Thereafter, the Respondent Union filed a petition for review in the United States Court of Appeals for the Tenth Circuit, and the General Counsel filed a cross- application for enforcement. On December 22, 2009, the Court of Appeals for the Tenth Circuit enforced the Board’s Order. 590 F.3d 849 (10th Cir. 2009). The Re- spondent Union then petitioned the United States Su- preme Court for a writ of certiorari. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, hold- ing that under Section 3(b) of the Act, in order to exer- 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 No exceptions were filed to the judge’s finding that the Respondent Employer violated Sec. 8(a)(1) by advising Charging Party Kirk Rammage that he would have to join the Union as a condition of con- tinued employment. 3 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. cise the delegated authority of the Board, a delegee group of at least three members must be maintained. Thereaf- ter, on October 4, 2010, the United States Supreme Court granted the petition for writ of certiorari, vacated the court of appeals judgment, and remanded this case to the court of appeals.4 On October 29, 2010, the court of ap- peals vacated the Board’s Order and remanded the case to the Board for further proceedings.5 Subsequently, the Respondent Union filed a supplemental brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.6 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.7 Our rationale for so holding is set forth below. The judge found that the Respondent Union and the Respondent Employer did not violate the Act by agreeing to endtail, rather than dovetail, the seniority of Charging Party Rammage, following the merger of two represented units and the inclusion of the previously unrepresented Rammage in the merged unit. For the following reasons, we disagree with the judge and find that the Respondent Employer violated Section 8(a)(3) and (1) and the Re- spondent Union violated Section 8(b)(1)(A) and 8(b)(2), as alleged. I. BACKGROUND The Employer manufactures and distributes bakery products under various names, including Dolly Madison, Hostess, and Wonder Bread. Until late 2005, the Em- ployer’s sales routes were structured along product lines. Some of the route representatives were assigned to sell and deliver only Dolly Madison products, while others were assigned Hostess and Wonder Bread products. The Union has historically represented the Dolly Madison and the Wonder Bread/Hostess sales representatives in separate units with separate collective-bargaining agree- ments. The Dolly Madison contract, covering employees in Tulsa and Muskogee, Oklahoma, ran from July 7, 4 131 S.Ct. 109 (2010). 5 624 F.3d 1321 (10th Cir. 2010). 6 Consistent with the Board’s general practice in cases remanded from the courts of appeals, and for reasons of administrative economy, the panel includes the remaining member who participated in the origi- nal decision. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board member not as- signed to the panel had the opportunity to participate in the adjudication of this case at any time up to the issuance of this decision. 7 In accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), we shall require that backpay shall be paid with interest compounded on a daily basis. We shall also provide for the posting of the notices in accord with J. Picini Flooring, 356 NLRB 11 (2010). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 2002, through November 5, 2005. The Wonder Bread/Hostess contract, covering sales representatives in Tulsa, Bartlesville, Ponca City, Woodward, Stillwell, and Enid, Oklahoma, ran from August 19, 2001, through Au- gust 19, 2006. Kirk Rammage, the Charging Party, has been a Dolly Madison sales representative for the Employer for about 15 years, beginning before the Employer purchased the Wonder Bread/Hostess product lines. Rammage was based in Ponca City, Oklahoma, where he originally worked by himself from a Dolly Madison warehouse. Then, after the Employer’s 1996–19978 acquisition of Wonder Bread/Hostess, and for cost-saving reasons, Rammage was moved to the Wonder Bread/Hostess warehouse in Ponca City. Unlike the Ponca City Wonder Bread/Hostess sales representatives based at that facility, however, he continued delivering and selling only Dolly Madison products. Rammage was not included in either of the bargaining units. Rammage was considered by the Employer to be an unrepresented employee, and he re- ceived company benefits rather than the benefits provid- ed under either union contract. Sometime before November 2005, the Employer de- cided to consolidate routes: all sales representatives would deliver and sell all products, and there would be no differentiation between Dolly Madison and Wonder Bread/Hostess routes. In early November 2005, Randy Campbell, the president of the Union, met with various representatives of the Employer, and they agreed that the Dolly Madison and Wonder Bread/Hostess units would be merged.9 The Dolly Madison contract, which was set to expire, would not be renewed, and the employees cov- ered by it would be dovetailed according to unit seniority with the Wonder Bread/Hostess sales representatives, whose contract would remain in effect as the sole con- tract. In addition, the parties agreed that one Ponca City route would be eliminated. During that discussion, Mike Stewart, one of the Em- ployer’s senior managers, informed the Union of Rammage’s employment at Ponca City and that he had not been included in either unit. The Union was previ- ously unaware of Rammage. The parties agreed that Rammage should be included in the merged unit, and they discussed where he would be placed on the seniority roster. Although Rammage had no unit seniority, he had the most company seniority of any sales representative based 8 The judge inadvertently stated that the acquisition occurred in 1977. 9 The Muskogee employees, part of the Dolly Madison unit, were to be transferred to a different unit and were no longer to be represented by the Union. in Ponca City. The Employer considered him to be its best Ponca City employee and did not want to lose him. Accordingly, it proposed that Rammage be dovetailed into the merged unit according to his company seniority. Union President Campbell refused, stating that the Un- ion’s duty of fair representation to the employees it rep- resented would be breached if the Union allowed that to occur. Campbell insisted that Rammage be placed at the bottom of the merged unit’s seniority roster, beginning on the date he entered the unit. Ultimately, the Employer agreed. Subsequently, Division Manager Rodney Roberts, Rammage’s supervisor, informed him that the Employer and the Union had decided to use “union seniority” for route bidding and vacation scheduling. In mid- December 2005, Roberts told Rammage that the route of one of the Ponca City sales representatives, Terry Tyler, was to be eliminated and that Tyler had exercised his contractual option to bump Rammage in accordance with “union seniority.” Rammage continued working in Pon- ca City until about January 12, 2006, when Sales Manag- er Kirk Summers gave Rammage the option of working as a sales representative out of the Bartlesville terminal if he wanted to have a job. Summers told Rammage that he was one of his best men and he did not want to lose him. Rammage ultimately accepted the Bartlesville position, which required him to commute over 70 miles each way. II. JUDGE’S DECISION AND EXCEPTIONS The judge found that the Respondent Employer violat- ed Section 8(a)(1) of the Act by advising Rammage that he would have to join the Union as a condition of em- ployment. No exceptions were filed to that finding. The judge concluded, however, that neither the Respondent Employer nor the Respondent Union violated the Act by agreeing to endtail Rammage’s seniority. The judge relied on Riser Foods, Inc., 309 NLRB 635 (1992). In that case, which involved the merger of two employers, the Board held that a union, having a duty of fair representation toward bargaining unit employees, did not violate the Act by dovetailing the seniority of em- ployees it had represented in different units prior to the merger, but endtailing employees it had not formerly represented who became unit employees as a result of the merger. The Board found that the union had no duty of fair representation to those employees that it did not yet represent. The judge rejected the General Counsel’s con- tention that Riser is distinguishable because it was a duty of fair representation case. The judge declined to apply Whiting Milk Corp., 145 NLRB 1035 (1964), enf. denied 342 F.2d 8 (1st Cir. 1965), on which the General Counsel and the Charging Party had relied. In that case, the Board held that it was INTERSTATE BAKERIES CORP. 17 unlawful in a unit merger situation to endtail employees who were not formerly represented by any union, while dovetailing employees represented in different units by the same local union. While acknowledging that Whiting Milk was “analogous if not identical” to the instant case, the judge asserted that the Board “seems” to have “obliquely” overruled Whiting Milk in Stage Employees IATSE Local 659 (MPO-TV), 197 NLRB 1187, 1189 fn. 8 (1972), enfd. mem. 477 F.2d 450 (D.C. Cir. 1973), cert. denied 414 U.S. 1157 (1974). He further concluded that because the Board in Riser did not “distinguish or even mention Whiting Milk,”10 the Board “prefers its more current Riser analysis” “to the extent the Board’s holding in Whiting Milk is inconsistent with Riser.” Ap- plying Riser, the judge dismissed the endtailing com- plaint allegations against both the Respondent Union and the Respondent Employer. In their exceptions, the General Counsel and the Charging Party contend, in essence, that Whiting Milk is controlling precedent and that it compels a finding that the Employer and the Union violated the Act by endtail- ing Rammage. III. ANALYSIS The Board has drawn a clear distinction between dis- crimination based on unit seniority and that based on union seniority. A union and an employer do not dis- criminate in a manner prohibited by the Act by contract- ing to vest certain employment rights based on seniority in a represented unit. Nor do the parties to a collective- bargaining agreement engage in unlawful discrimination by placing a single employee or a group of employees hired or merged into the unit at the end of the seniority list on the grounds that they lacked seniority in the unit. “It is settled,” the Board has held, “that a bargaining rep- resentative for the employees of a particular unit has the right to give an inferior seniority ranking to employees transferred from another unit.” General Drivers & Help- ers Local 229 (Associated Transport), 185 NLRB 631, 631 (1970). In short, “a union may lawfully insist on the endtailing of new bargaining unit employees’ seniority when it is based on unit rather than union considera- tions.” Riser Foods, supra, 309 NLRB at 636. What is unlawful under the Act is for such parties to place employees at the end of the seniority list because they were unrepresented by a particular union or any union in their prior employment. That is the form of discrimination which was at issue in Whiting Milk. In that case, the contract provided for the dovetailing of seniority in the event of merger with “another Union 10 The judge in Riser extensively discussed and distinguished Whit- ing. Company.” Id., 145 NLRB at 1036. The Board found that “[t]he term ‘Union Company’ is construed by the parties as meaning an employer whose employees have been represented by the Respondent Union.” Id. Thus, the Board found that the selection of employees for layoff based on endtailed seniority “was substantially related to their earlier lack of membership in the Union.” Id. at 1037. The same is true in other cases in which the Board found endtailing unlawful. See Woodlawn Farm Dairy Co., 162 NLRB 48, 50 (1966) (“This sentence [of the contract], on its face, affords preferential treatment to employees of new branches or plants who are Local 869 members and discriminates against those who are not.”); Teamsters Local 435 (Super Valu, Inc.), 317 NLRB 617, 617 fn. 3 (1995) (“the unions advocated granting less seniority to one of the employee groups on the impermis- sible basis that the employees in that group had not been represented by a union as long as the employees in the other group.”); Teamsters Local 480 (Hilton D. Wall), 167 NLRB 920, 920 fn. 1 (1967) (agreement provided that Wall would be placed on the bottom of the seniority list “because employees of Cookeville Motor Lines had not been represented by a labor organization”). The judge in this case found that the Respondents dis- criminated based on unit rather than union seniority. The judge found: There is no record evidence that the Union has either said anything or done anything that could be deemed to be inconsistent with [Union President] Campbell’s ex- press rationale for the Union’s treatment of Rammage as a new unit employee. Additionally, it is significant that the Union has always been highly protective of continuous unit seniority and has required unit mem- bers, who had left the unit to take supervisory positions, to return to the unit at the bottom of the seniority list because they had forfeited their prior unit seniority. That analysis is flawed because it fails to recognize that neither unit continued to exist, as before, once the Employer and the Union discontinued the Dolly Madison unit and merged all of the sales representatives into a single unit under the Wonder Bread/Hostess agreement. That circumstance is significant. If the units had never been merged and Rammage had worked for another em- ployer and been placed into one of the units after Re- spondent Interstate purchased his employer, the Re- spondents could lawfully have placed him at the end of the seniority list if they had done so based on his lack of unit seniority, i.e., without regard to whether he was pre- viously represented or unrepresented. But, here, the units were merged, and the parties did not preserve unit seniority in either unit. Indeed, the Union abandoned the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 principle of protecting the seniority of the Wonder Bread/Hostess unit when it agreed to dovetail the previ- ously represented Dolly Madison employees. The only difference between Rammage and those em- ployees in regard to unit seniority was that he had not been previously represented by the Union. Moreover, the Dolly Madison contract had defined “Seniority” simply as “length of continued service with the compa- ny” (Rammage had more service than any other Ponca City sales representative) and had further provided that seniority as so defined should govern in the event of layoff and resulting bumping. Under these circumstanc- es, we find that the parties did not endtail Rammage in order to protect unit seniority but in order to protect un- ion seniority.11 Having made that finding, we nevertheless observe that the administrative law judge’s decision in Hilton D. Wall and the Court of Appeals’ decision overturning our Whiting Milk decision, NLRB v. Whiting Milk Corp., 342 F.2d 8 (1st Cir. 1965), suggest another lawful distinction that might have been drawn in merging the two units and integrating Rammage into the two existing, collectively- bargained seniority systems: that between employees with preexisting, enforceable seniority rights and em- ployees without such rights. In Hilton D. Wall, the Board’s finding of unlawful discrimination was based on the judge’s factual finding: “On this record, I am con- vinced that Local 480’s conduct herein was based not on the existence or nonexistence of formal seniority rights but on the existence or nonexistence of prior representa- tion by (1) locals of the International with which Local 480 was affiliated, or (2) any other labor organization.” Id. at 923–924. Similarly, the First Circuit in Whiting Milk reversed the Board on the grounds that the employ- ees’ nonunion status was simply a proxy for lack of en- forceable seniority rights. “As non-union men,” the First Circuit reasoned, “they had no seniority rights for that is 11 Although not determinative, Division Manager Roberts’s postmerger statements to Rammage that the parties had decided to abide by “union seniority” are consistent with our finding a violation here. Riser Foods, Inc., supra, is not to the contrary. Riser, unlike this case, was pleaded as a violation of the union’s duty of fair representa- tion. The Board rejected that theory on the grounds that at the time the union agreed to the endtailing, the endtailed employees were not yet part of the unit and thus the union owed them no duty of fair represen- tation. 309 NLRB at 636. Moreover, even assuming such a duty exist- ed, the Board found that the union’s contract with the premerger em- ployer had a successorship clause that was binding on the new employ- er. Therefore, the Board found that the union had a duty to enforce that clause in order to protect the seniority of the formerly represented em- ployees. Id. For this reason as well as those in our discussion of Whit- ing Milk above, we reject the judge’s suggestions that Riser overruled Whiting Milk sub silentio. not an incident of employment, like the right to a reason- ably safe place to work. ‘Seniority arises only out of contract or statute’ and ‘The seniority principle is con- fined almost exclusively to unionized industry.’” 342 F.2d at 10 (quoting Trailmobile Co. v. Whirls, 331 U.S. 40, 53 (1947)). While, for the reasons explained above, we do not ful- ly accept the First Circuit’s logic, it suggests that parties do not unlawfully discriminate by respecting preexisting, enforceable seniority rights (usually, if not necessarily,12 linked to union representation), but not simple length of service not linked to any enforceable employment rights. Thus, it is arguable that the Respondents here might law- fully have sought to preserve existing seniority rights just as they might lawfully have sought to preserve existing wage rates (even if the represented employees had higher or lower wages than the unrepresented employee). That is, they might lawfully have agreed that all employees would retain any preexisting enforceable seniority rights.13 But that is not the rationale they offered for their treatment of Rammage. The Union was legitimately concerned about its duty to the employees it already represented. Nevertheless, Whiting Milk, Woodlawn Farm Dairy, Super Valu, and Hilton D. Wall all hold that, in the context of a unit mer- ger, a union and an employer are not lawfully permitted to discriminate against all or, as in this case, some of the merged employees on the basis of their previously unrep- resented status. Accordingly, we find that the Respond- ents violated the Act by agreeing to endtail Rammage on the unit seniority list, permitting Rammage to be bumped from his job at the Ponca City facility, and transferring Rammage to a job at the Bartlesville facility, all because he was not previously represented by the Union. AMENDED CONCLUSIONS OF LAW 1. The Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Union is a labor organization with- in the meaning of Section 2(5) of the Act. 3. The Respondent Employer has violated Section 8(a)(1) by telling Charging Party Kirk Rammage that he would have to join the Union as a condition of continued 12 As the Court noted in Whiting Milk, “[a] different situation which we need not consider might be presented had White Brothers’ non- union Hyannis employees individually bargained for and obtained ‘vested’ seniority rights which were superseded or cancelled by [the challenged clause].” 342 F.2d at 11 fn. 6. 13 We do not believe, as suggested by the First Circuit in Whiting Milk, that previously represented status can be used as a proxy for enforceable seniority rights. We thus continue to follow our own hold- ing in Whiting Milk as explained above. INTERSTATE BAKERIES CORP. 19 employment and that he lost his seniority because he was not previously represented by the Respondent Union. 4. The Respondent Employer has violated Section 8(a)(3) and (1) by agreeing with the Respondent Union to endtail Charging Party Kirk Rammage on the unit sen- iority list, endtailing Rammage on the unit seniority list, permitting Rammage to be bumped from his job at the Ponca City facility, and transferring Rammage to a job at the Bartlesville facility, because he was not previously represented by the Union. 5. The Respondent Union has violated Section 8(b)(1)(A) and (2) by demanding that Respondent Em- ployer endtail Rammage on the unit seniority list, agree- ing with Respondent Employer to discriminate against Kirk Rammage with respect to seniority, on the basis of his prior lack of membership in, or representation by, the Respondent Union, permitting Respondent Employer to endtail Rammage on the unit seniority list, permitting Rammage to be bumped from his job at the Ponca City facility, and permitting Rammage to be transferred to a job at the Bartlesville facility based on his placement on the unit seniority list. 6. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent Employer and the Respondent Union violated Section 8(a)(3) and (1) and Section 8(b)(1)(A) and (2), respectively, we shall order the Respondents to cease and desist from such conduct and to take certain affirmative action designed to effectu- ate the purposes of the Act. We shall order the Respond- ents to credit Rammage with unit seniority based on the length of his employment with the Respondent Employ- er. The Respondent Employer shall be ordered to give Rammage the opportunity that he did not have when the units merged to bid on a route based on that seniority, and award Rammage the route to which he would have been entitled by his bid. The Respondent Union shall be ordered to notify Rammage and the Respondent Employ- er in writing that it has no objection to the dovetailing of Rammage’s seniority based on the length of his employ- ment with the Respondent Employer, to allowing Rammage to bid on a route based on that seniority, or to awarding Rammage the route to which he would have been entitled by his bid. We shall also order the Re- spondents, jointly and severally, to make Rammage whole for any losses suffered as a result of the discrimi- nation against him. Backpay shall be computed in the manner prescribed in F. W. Woolworth, 90 NLRB 289 (1950), with interest compounded on a daily basis as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, supra, 356 NLRB 6. The Respondents shall also be ordered to grant Rammage any other rights and privileges to which he would have been entitled absent the discrimination against him. ORDER The National Labor Relations Board orders that A. The Respondent Employer, Interstate Bakeries Corporation, Kansas City, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that joining the Union is a con- dition of employment or that they lost seniority because they were not previously represented by the Respondent Union. (b) Entering into, maintaining, or giving effect to any agreement with Teamsters Local Union No. 523, affiliat- ed with International Brotherhood of Teamsters, which discriminates against Kirk Rammage or any employee with respect to seniority, on the basis of his prior lack of membership in, or representation by a labor organization. (c) Discriminatorily endtailing Rammage on the unit seniority list, permitting Rammage to be bumped from his job at the Ponca City facility, and transferring Rammage to a job at the Bartlesville facility, because he was not previously represented by the Union. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Credit Rammage with unit seniority based on the length of his employment with the Respondent Employ- er, give Rammage the opportunity to bid on a route based on that seniority, award Rammage the route to which he would have been entitled by his bid, and grant him any other rights and privileges to which he would have been entitled absent the discrimination against him. (b) Jointly and severally with the Respondent Union, make Rammage whole for any losses suffered as a result of the discrimination against him, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful loss of Rammage’s seniority, his bumping from the Ponca City facility, and his transfer to Bartlesville, and, within 3 days thereafter, notify him in writing that this has been done and that the unlawful conduct will not be used against him in any way. (d) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, time cards, personnel rec- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amounts due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facilities covered by the 2001–2006 Wonder Bread/Hostess contract, copies of the attached notice marked “Appendix A.”14 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent Employer’s authorized representative, shall be posted by the Respondent Em- ployer and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent Employer customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent Employer to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent Employer has gone out of business or closed the facilities involved in these pro- ceedings, the Respondent Employer shall duplicate and mail, at its own expense, a copy of the notice to all em- ployees employed by the Respondent Employer since November 2005. (f) Post at the same places and under the same condi- tions as set forth above, as soon as forwarded by the Re- gional Director, copies of the attached notice marked “Appendix B.” (g) Sign and return to the Regional Director for Region 17, sufficient signed copies of “Appendix A” for posting by the Respondent Union at its business offices and meeting halls, where notices to employees and members are customarily posted. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official, on a form provided by the Region, attesting to steps that the Respondent Employer has taken to comply. B. The Respondent Union, Teamsters Local Union No. 523, affiliated with International Brotherhood of Teamsters, its officers, agents, and representatives, shall 1. Cease and desist from 14 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” (a) Entering into, maintaining, or giving effect to any agreement with Interstate Bakeries Corporation, which discriminates against Kirk Rammage or any employee with respect to seniority, on the basis of his prior lack of membership in, or representation by, a labor organiza- tion. (b) Causing or attempting to cause Interstate Bakeries Corporation to deprive employees of seniority rights be- cause of their lack of membership in or representation by the Respondent Union or any other labor organization. (c) Discriminatorily demanding that Respondent Em- ployer endtail Rammage on the unit seniority list, permit- ting Respondent Employer to endtail Rammage on the unit seniority list, permitting Rammage to be bumped from his job at the Ponca City facility, and permitting Rammage to be transferred to a job at the Bartlesville facility, because he was not previously represented by the Union. (d) In any like or related manner restraining or coerc- ing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Credit Rammage with unit seniority based on the length of his employment with the Respondent Employer and grant him any other rights and privileges to which he would have been entitled absent the discrimination against him. (b) Notify Interstate Bakeries Corporation and Rammage in writing that it has no objection to the dove- tailing of Rammage’s seniority, to allowing Rammage to bid on a route based on that seniority, and to awarding Rammage the route to which he would have been entitled by his bid. (c) Jointly and severally with the Respondent Employ- er, make Rammage whole for any losses suffered as a result of the discrimination against him, in the manner set forth in the remedy section of this decision. (d) Within 14 days after service by the Region, post at its business offices and meeting halls, copies of the at- tached notice marked “Appendix B.”15 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent Union’s authorized representative, shall be posted by the Re- spondent Union and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent Union customarily 15 See fn. 14, supra. INTERSTATE BAKERIES CORP. 21 communicates with its employees and members by such means. Reasonable steps shall be taken by the Respond- ent Union to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Post at the same places and under the same condi- tions as set forth above, as soon as forwarded by the Re- gional Director, copies of the attached notice marked “Appendix A.” (f) Sign and return to the Regional Director for Region 17 sufficient copies of “Appendix B” for posting by the Respondent Employer at its facilities covered by the 2001–2006 Wonder Bread/Hostess contract, where no- tices to employees are customarily posted. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official, on a form provided by the Region, attesting to steps that the Respondent Union has taken to comply. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT tell employees that joining Teamsters Local Union No. 523, affiliated with International Broth- erhood of Teamsters (the Union) is a condition of em- ployment or that they lost seniority because they were not previously represented by the Union. WE WILL NOT enter into, maintain, or give effect to any agreement with the Union, which discriminates against Kirk Rammage or any employee with respect to seniori- ty, on the basis of his prior lack of membership in, or representation by a labor organization. WE WILL NOT discriminatorily endtail Kirk Rammage on the unit seniority list, permit Rammage to be bumped from his job at the Ponca City facility, or transfer Rammage to a job at the Bartlesville facility, because he was not previously represented by the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of you in the exercise of your rights set forth above. WE WILL credit Kirk Rammage with unit seniority based on the length of his employment with us, WE WILL give him the opportunity to bid on a route based on that seniority, WE WILL award him the route to which he would have been entitled by his bid, and WE WILL grant him any other rights and privileges to which he would have been entitled absent the discrimination against him. WE WILL, jointly and severally with the Union, make Kirk Rammage whole for any losses suffered as a result of the discrimination against him, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful loss of Rammage’s seniority, his bumping from the Ponca City facility, and his transfer to Bartlesville, and, within 3 days thereafter, WE WILL notify him in writing that this has been done and that the unlawful conduct will not be used against him in any way. INTERSTATE BAKERIES CORPORATION APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with your em- ployer on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT enter into, maintain, or give effect to any agreement with Interstate Bakeries Corporation, which discriminates against Kirk Rammage or any em- ployee with respect to seniority, on the basis of his prior lack of membership in, or representation by a labor or- ganization. WE WILL NOT cause or attempt to cause Interstate Bak- eries Corporation (the Employer) to deprive employees of seniority rights because of their lack of membership in or representation by us or any other labor organization. WE WILL NOT discriminatorily demand that the Em- ployer endtail Rammage on the unit seniority list, permit DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 the Employer to endtail Rammage on the unit seniority list, permit Rammage to be bumped from his job at the Ponca City facility, or permit Rammage to be transferred to a job at the Bartlesville facility, because he was not previously represented by us. WE WILL NOT in any like or related manner restrain or coerce any of you in the exercise of your rights set forth above. WE WILL credit Rammage with unit seniority based on the length of his employment with the Employer and grant him any other rights and privileges to which he would have been entitled absent the discrimination against him. WE WILL notify Interstate Bakeries Corporation and Kirk Rammage in writing that we have no objection to the dovetailing of Rammage’s seniority, to allowing Rammage to bid on a route based on that seniority, and to awarding Rammage the route to which he would have been entitled by his bid. WE WILL, jointly and severally with the Employer, make Kirk Rammage whole for any losses suffered as a result of the discrimination against him, plus interest. TEAMSTERS LOCAL UNION NO. 523, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS Michael Werner, Esq., for the General Counsel. Gregory D. Ballew, Esq. (Fisher & Phillips, LLP), of Kansas City, Missouri, for the Respondent Employer. Steven R. Hickman, Esq. (Frasier, Frasier & Hickman, LLP), of Tulsa, Oklahoma, for the Respondent Union. John C. Scully, Esq., National Right to Work Legal Defense Foundation, Inc., of Springfield, Virginia, for the Charging Party. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice a hearing in this matter was held before me in Tulsa, Oklahoma, on August 15, 2006. The charges were filed by Kirk Rammage, an individual, on January 13, 2006. An amended charge in Case 17–CB–6146 was filed on April 25, 2006. Thereafter, on April 28, 2006, the Regional Director for Region 17 of the National Labor Relations Board (Board) issued a complaint and notice of hearing alleging violations by Interstate Bakeries Corporation (Respondent Employer or Employer) of Section 8(a)(3) and (1) of the National Labor Relations Act (Act), and by Teamsters Local Union No. 523, affiliated with International Brotherhood of Teamsters, AFL–CIO (Respond- ent Union or Union) of Section 8(b)(1)(A) and (2) of the Act. The Employer and Union, in their answers to the complaint, duly filed, deny that they have violated the Act as alleged. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from counsel for the General Counsel (General Counsel), counsel for the Employer, counsel for the Union, and counsel for the Charging Party. On the entire record, and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION The Employer is a corporation with corporate headquarters in Kansas City, Missouri, and facilities throughout the United States including multiple facilities located in Oklahoma, and are engaged in the manufacture, distribution, and nonretail sale of baked goods. In the course and conduct of its business opera- tions the Employer annually purchases and receives at its Okla- homa facilities goods valued in excess of $50,000 directly from points outside the State of Oklahoma, and sells and ships goods valued in excess of $50,000 from its Oklahoma facilities direct- ly to points outside the State of Oklahoma. It is admitted and I find that the Respondent Employer is, and at all material times has been, an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find that the Union is and at all times material herein has been a labor organization within the mean- ing of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issue in this proceeding is whether the Union and Employer have discriminated against the Charging Party, Kirk Rammage, by agreeing to endtail rather than dovetail his seniority with the Employer. B. Facts The Union and Employer were parties to two separate collec- tive-bargaining agreements covering certain employees at vari- ous locations in Oklahoma. One contract, known as the Won- der/Hostess contract, extended from August 19, 2001, through August 19, 2006. This contract covered various classifications of employees, including sales department employees, known as sales representatives. The contract provides that departmental seniority shall prevail, inter alia, for selection of new jobs and for lay-off and recall. The contract further provides that In the event a route is eliminated, the Sales person affected shall be entitled to bid on the next open route in line of their seniority. In the event of route elimination, if the Route Sales person whose route is being eliminated has seniority, he/she shall be entitled to displace the Route Sales person with the least seniority, which shall in turn be entitled to displace the Sales person with the least seniority. The other contract, known as the Dolly Madison contract, covered only sales representatives, and extended from July 7, 2002, through November 5, 2005. This contract provides that, “Seniority from length of continued service with the company INTERSTATE BAKERIES CORP. 23 shall prevail.” inter alia, for selection of new jobs and for lay- off and recall, and contains a similar, but not identically- worded seniority/bidding provision in the event of route elimi- nation, namely, that the person whose route is being eliminated may bump the employee with the least seniority. Kirk Rammage, the Charging Party, has been a Dolly Madi- son sales representative for the Employer for nearly 15 years, beginning his employment prior to the time the Employer pur- chased Wonder Bread/Hostess. Rammage was based in Ponca City, Oklahoma, where he worked out of a Dolly Madison fa- cility. Then, after the 1977 acquisition, for cost-saving reasons, he was moved to the Wonder Bread/Hostess warehouse in Pon- ca City. However, unlike the other Ponca City Wonder Bread/Hostess sales representatives, he continued delivering and selling only Dolly Madison products. As a result first of anomaly and inadvertence, and then by choice, he was not in- cluded under either the Wonder/Hostess contract or the Dolly Madison contract: The three other sales representatives at Pon- ca City were covered under the Wonder/Hostess contract and sold and delivered Wonder Bread and Hostess products but not Dolly Madison products; and the Dolly Madison contract cov- ered sales representatives who sold only Dolly Madison prod- ucts in various locations but not in Ponca City.1 This arrangement was fine with Rammage, as he either was not interested in being represented by the Union or did not un- derstand that he could have requested to be included in a collec- tive-bargaining unit. He was considered by the Employer to be a nonunion employee, and as the union contract did not apply to him he was given company benefits rather than the benefits required under the union contract. Rodney Roberts, a division manager and Rammage’s supervisor, testified that the Employ- er was also happy with this state of affairs because of the great- er flexibility it afforded the Employer in dealing with Rammage. And apparently the Ponca City Wonder/Hostess sales representatives were not concerned with Rammage’s situ- ation, as Dolly Madison sales representatives were not included in their collective-bargaining unit. Accordingly, neither Rammage, nor the Employer, nor the other Wonder/Hostess unit employees advised union representatives of Rammage’s unique situation. Thus, over a period of many years, Rammage was not included within either unit. Sometime prior to November 2005, the Employer, for rea- sons of cost savings and efficiency, had decided to consolidate the routes so that all sales representatives would be delivering and selling all products, and there would be no differentiation between Wonder Bread/Hostess routes and Dolly Madison routes. In early November, 2005, Randy Campbell, president and principal officer of the Union, met with various representa- tives of the Employer to discuss the matter and it was agreed that the Wonder/Hostess and Dolly Madison units would be merged. Accordingly, the Dolly Madison contract, which was set to expire, would not be renewed, and the Tulsa sales repre- 1 It appears that when the Union filed a petition to represent the Dol- ly Madison sales representatives it was not known that the Employer had a sales representative, Rammage, based in Ponca City. Therefore, the Union was certified as the collective-bargaining representative of Dolly Madison sales representatives only in Tulsa and Muskogee. sentatives under that contract would be dovetailed according to unit seniority with the Tulsa sales representatives under the Wonder/Hostess contract which remained in effect.2 It was also made known to Campbell that since the routes were being re- structured or consolidated, one Ponca City route was to be eliminated. During this discussion, according to Campbell, he was ad- vised by Mike Stewart, senior manager, labor relations, of one sales representative, Rammage, who had not been included in either unit. As noted, prior to this occasion Campbell had not known that Rammage was even an employee. Both parties agreed that Rammage should be included within the merged unit, and his seniority placement within the unit was discussed. Although Rammage had no unit seniority, he had the most company seniority of any sales representative in Ponca City; indeed, the Employer considered him to be its best Ponca City employee. The Employer did not want to lose Rammage, and proposed that Rammage be dovetailed into the merged unit according to his company seniority as he had no unit seniority. Campbell refused, stated that the Union’s duty of fair represen- tation to the unit employees would be breached if this were allowed to occur, and insisted that Rammage’s unit seniority begin on the date he became included within the unit, that is, that he be endtailed.3 Believing that it could not prevail if the matter went to arbitration, the Employer agreed to endtail Rammage. The parties entered into a “Side Agreement” dated Novem- ber 16, 2005, memorializing their agreement, inter alia, to dovetail the seniority of the unit employees. The side agree- ment did not mention the verbal agreement reached concerning Rammage. Rammage testified that in mid-November 2005, apparently after the parties had entered into the aforementioned November 16 “Side Agreement,” he was told by Division Manager Rob- erts that the company and the union had decided to use “union seniority” for route bidding and vacation scheduling. Rammage testified that in mid-December 2005, Roberts told him that the route of one of the Ponca City sales representa- tives, Terry Tyler, was to be eliminated and that Tyler had ex- ercised his option to bump Rammage in accordance with “un- ion seniority.” Rammage asked Roberts to put that in writing, and Roberts did so as follows:4 On Dec 19, 2005 Because of Union Contracts you will loose (sic) your Route. The Company & the Union has (sic) decided to use Union Seniority for Route Bidding. Terry who has to (sic) Union Seniority & whose Route has been cut has decid- ed to bump you & take your Route. You will be an extra man Running Vacations & Riding with other Route men[.] 2 However, the Muskogee sales representatives under the Dolly Madison contract were transferred into a different local, Local 516, and were no longer represented by the Union. 3 Rammage became a unit member on December 5, 2005, the date the two units were officially merged. 4 This document was received into evidence as GC Exh. 11, but has not been included in the official exhibits. Therefore the wording of the document has been copied from the General Counsel’s brief. There is no dispute regarding its accuracy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 After Roberts handed Rammage the note, Rammage asked Roberts to explain “why they can do this to me,” and Roberts replied, according to Rammage, “because I was not in the Un- ion.” Rammage continued working in Ponca City until about Jan- uary 12, 2006. On that day Kirk Summers, sales manager, in the presence of Roberts, gave him the option of working as a sales representative out of the Bartlesville terminal if he wanted to have a job, and told him that Rammage was one of his best men and he did not want to lose him. Rammage said he would talk with his wife about the offer.5 According to Rammage, Summers told him, “Two or three—gosh, it was four or five different times, he mentioned that I would have to join the Un- ion.”6 Rammage again asked Summers, as he had asked Rob- erts, why this was happening to him, and Summers said it was because he was not in the Union. On cross-examination, asked whether Summers had told him to “go see” the Union rather than to “join” the Union, Rammage answered, “Absolutely not.” Rammage testified that he did not “fully understand” the “union stuff” that was being explained to him by Roberts and Summers, and kept asking why this was happening to him. During his conversation with Summers, Rammage claims that he still did not know he was a unit employee covered under the collective-bargaining agreement, stating, “I did not know, at that time. I did not know what I had fallen under or nothing.” He stated that he never asked anyone if he was covered by any union agreement, and was never told by anyone that he was covered by a union contract. In fact, he claims that until the discussion on the record at the instant hearing, he had not known that he was covered under the union contract. And when asked, “You do realize that it is possible to be represented by the Teamsters without joining the Teamsters,” Rammage re- plied, “Not fully, I do not understand it at all.” Summers testified that he had several conversations with Rammage about the matter, and that either during a conversa- tion with Rammage on November 21, 2005, or a second con- versation with Rammage on January 12, 2006, he told Rammage he would no longer be covered by the company ben- efits, but would be covered by the “Collective Bargaining” benefits, and further, that there would be no more deductions from his paycheck for the Employer’s 401(k) plan, as he would now be covered under the Union’s pension plan as contained in the contract. On January 12, 2006, Summers offered Rammage the posi- tion in Bartlesville, possibly repeating what he may have said on November 21, namely, that the position was covered by the benefits in the union contract, that he was no longer being cov- ered by the company benefits, and that he would no longer be able to contribute to the company 401(k) plan. On direct exam- ination, Summers did not unequivocally deny he told Rammage 5 Rammage did accept this position and is currently a unit employee working out the Bartlesville facility, requiring a commute of some 73 miles each way from his home in Ponca City. 6 The contract contains a maintenance of membership provision, re- quiring that “all present employees who are members of the Local Union on the effective date of this Agreement shall remain members of the Local Union in good standing as a condition of employment.” he would have to join the union, but the substance of his testi- mony is that he was not supposed to tell employees this; rather his practice is to tell employees they must go down and talk to the Union, as required by the Union contract.7 However, on cross-examination, Summers, when asked whether it was his understanding that Rammage “needed to join the union,” and “had an obligation to join the union,” answered affirmatively, stating, “Because he was going to a job that was covered by the Collective Bargaining Unit.” Roberts, who testified briefly about this January 12, 2006 conversation between Summers and Rammage, also alluded to the fact that employees who become covered by the contract are told they need to see the Union. However, like Summers, Roberts did not unequivocally deny Rammage’ testimony that Summers told Rammage he needed to join the Union. Summers testified that various employees covered by the in- stant contract, who were initially in the bargaining unit, then became supervisors or managers for a period of time, and then returned to the bargaining unit, were not given seniority credit under the union contract for their tenure outside the bargaining unit and were required to be treated for seniority purposes as new unit employees as of the date they returned to the unit. This record evidence is unrebutted. Rammage has not joined the Union, nor has he been sent by the Employer to the union office upon becoming covered by the collective-bargaining contract, nor has he been approached by any union representative regarding the matter. B. Analysis and Conclusions The Union and Employer rely on Riser Foods, Inc., 309 NLRB 635 (1992). The Board states in Riser that “a union may lawfully insist on the endtailing of new bargaining unit em- ployees’ seniority when it is based on unit rather than union considerations.” (Footnote omitted.) In Riser the Board held, in a unit merger situation, that the union, having a duty of fair representation toward bargaining unit employees, did not vio- late the Act by dovetailing the seniority of employees it had represented in different units prior to the merger; and converse- ly, it had no such duty toward employees it had not formerly represented who became unit members as a result of the merger and were endtailed. Further, the Board stated it did not matter when the union, by virtue of the merger, also acquired a duty of fair representation toward the formerly nonunit employees, because its treatment of these employees, i.e., relegating them as new unit employees to the bottom of the unit seniority list, “was not unfair or discriminatory and thus not unlawful.”8 The General Counsel in Riser argued that since the underly- 7 Art. 3(A) of the contract provides: “Each newly hired employee will be sent to the Union Office before starting work, for an identifica- tion card which will be issued by the Union without obligation on the part of said applicant.” 8 Citing Riser with approval, the Ninth Circuit in McNamara-Blad v. Flight Attendants, 275 F.3d 1165 (9th Cir. 2002), a case under the Railway Labor Act, states, at p. 1173: Forc[ing] unions to protect the interests of any person who might be- come a bargaining unit member to the detriment of current bargaining unit members . . . would contravene the union’s statutory duty to pro- tect the interests of its own bargaining unit members. INTERSTATE BAKERIES CORP. 25 ing collective-bargaining agreements contained no language regarding placement of unit employees in unit merger situa- tions, the union “was therefore obligated to treat all these em- ployees [i.e., the formerly represented and unrepresented em- ployees] the same” as having equal status as of the date of the merger. The Board found this argument to be without merit. The General Counsel in the instant matter makes a seemingly identical argument, maintaining that in the absence of specific contract provisions regarding placement of unit employees in merger situations, a “new unit” was formed as a result of the merger and all such new unit employees should have been treated the same. Relying on the Board’s language in Riser, I similarly find this argument to be without merit. The Charging Party asserts that by dovetailing the units the Union “abandoned the concept of protecting the integrity” of each of the distinct units it represented, and therefore “cannot argue that the endtailing of Kirk Rammage was done for pur- poses of protecting the integrity of bargaining unit seniority.” While not entirely clear, it appears the Charging Party is argu- ing that the Union, by agreeing to dovetail the units, has com- promised and in effect abandoned its duty of fair representation to the employees in each separate unit, and therefore its insist- ence upon preferential treatment for these employees upon the merger of the units, to the detriment of Rammage, was no long- er required of it as a “duty,” rather, its decision to endtail Rammage should be viewed as a discriminatory act favoring union over nonunion employees. In effect, the Charging Party’s argument seems to be another version of the General Counsel’s aforementioned argument that the merger created a new unit with all of the unit employees beginning on an equal footing. Again, as noted above, the Board in Riser has found this argu- ment to be without merit. Further, contrary to the Charging Party’s apparent contention that dovetailing connotes an aban- donment of a union’s duty to fairly represent unit employees, the Board in Riser states, at page 636: Local 507 clearly fulfilled its duty of fair representation to- ward both the Fisher and Seaway warehousemen by dovetail- ing their seniority when they were merged into the single Ris- er warehousemen unit, insuring that these employees retained their relative seniority. [Emphasis supplied.] The General Counsel, in distinguishing Riser, maintains that the Board’s analysis in Riser is premised on complaint allega- tions alleging that the union breached its duty of fair represen- tation, but the complaint in the instant case advances a different theory, namely, discriminatory conduct against Rammage be- cause of his nonunion status. However, it is clear that this is a distinction without a legal difference as the underlying legal principles in each situation are identical, namely, what is the union’s motivation for giving seniority preference to particular groups of employee over another employee or group of em- ployees. The General Counsel would also distinguish Riser from the instant case on the basis that the underlying union contracts in Riser contained successorship clauses that required the successor employer, Riser, to honor the contracts’ unit sen- iority provisions, while in the instant case there are no such successorship clauses. The simple answer is that the Employer in the instant case is not a successor but has remained the same employing entity both before and after the unit merger. The General Counsel and Charging Party rely principally on Whiting Milk Corp., 145 NLRB 1035 (1964), enf. denied 342 F.2d 8 (1st Cir. 1965). In Whiting Milk the Board seemingly held that it was unlawful in a unit-merger situation to endtail employees who were not formerly represented by any union, while dovetailing employees represented in different units by the same local union, a factual situation analogous if not identi- cal to the instant facts. In a later case, however, the Board seems to obliquely overrule this holding by relying on the anal- ysis in yet another case as the correct holding in Whiting Milk. Thus, in Stage Employees IATSE Local 659 (MPO-TV), 197 NLRB 1187, 1189 (1972), enfd. 477 F.2d 450 (D.C. Cir. 1973), the Board states, at fn. 8, “Although enforcement was denied in Whiting, we believe the rationale in Hilton D. Wall9 to be cor- rect, and we respectfully disagree with the court’s rationale in Whiting.” Therefore, the Board seems to be stating that its orig- inal rationale in Whiting Milk should be understood as modified or explained in Hilton D. Wall. In Hilton D. Wall, another case upon which the General Counsel and Charging Party rely, the trial examiner, discussing Whiting Milk, relied on the unlawfulness of the explicit contract provision in Whiting Milk that permitted dovetailing in merger situations with “another Union company,” i.e., a company whose employees are represented by any union, not necessarily the same union that had initially represented both groups of employees in separate units. Accordingly, if one such group of employees came from a nonunion rather than a union company, those employees would be discriminatorily relegated to the bottom of the seniority list. It follows that Whiting Milk was deemed by the Board in IATSE Local 659 to be applicable to unit merger situations in which a union gave preferential treat- ment to employees of any union company regardless of whether the union owed those employees a duty of fair representation. The Board’s holding in Hilton D. Wall is consistent with this analysis: Although there was no similar explicit contract lan- guage, the Board, affirming the analysis and conclusions of the trial examiner, found that employee Wall had been placed at the bottom of a merged seniority list because he had not formerly been a union employee, and not, as in the instant case, because he had not formerly been in a unit represented by the union.10 The General Counsel and Charging Party also rely on Wood- lawn Farm Dairy Co., 162 NLRB 48, 49 fn. 2 (1966). This case is also inapposite. In Woodlawn Farm the Board found it was unlawful in a unit merger situation to discriminate against em- ployees who had not formerly been “union members,” namely, members of Local 869. In contrast, the Union herein insists that it subordinated Rammage’s unit seniority not because Rammage was not formerly a union member, but because he 9 Teamsters Local 480 (Hilton D. Wall), 167 NLRB 920 (1967), enfd. 409. F.2d 610 (6th Cir. 1969), also sub. nom. Potter Freight Lines. 10 The Board in Riser does not distinguish or even mention Whiting Milk, even though the administrative law judge in Riser extensively discusses that case, beginning supra at p. 660. Accordingly, it appears to the extent the Board’s holding in Whiting Milk is inconsistent with Riser, the Board prefers its more current Riser analysis in such situa- tions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 was not formerly a unit member represented by the Union. The General Counsel and Charging Party maintain that Divi- sion Manager Roberts’ mid-December 2005 note and concomi- tant statement to Rammage, and Sales Summers’ subsequent mid-January 2006 statements to Rammage—namely; that Rammage had not been a member of the Union, that his sen- iority was subordinated because he had no union seniority, and by repeatedly advising Rammage that he would have to join the Union—reveal the Union’s and Employer’s true motivation in relegating Rammage to the bottom of the merged seniority list.11 I disagree. There are no similar statements made by rep- resentatives of the Union to either the Employer’s representa- tives or supervisors or to Rammage. Indeed, no representative of the Union has ever spoken to Rammage. Further, Rammage’s status was agreed upon in November 2005, during a meeting between representatives of the Union and Employer, and neither Roberts nor Summers were in attendance. At that meeting Union President Campbell insisted that Rammage be placed at the bottom of the seniority list because the Union had a duty of fair representation toward its current unit members who had accrued unit seniority as required by the two collec- tive-bargaining agreements. There is no record evidence that the Union has either said anything or done anything that could be deemed to be inconsistent with Campbell’s express rationale for the Union’s treatment of Rammage as a new unit employee. Additionally, it is significant that the Union has always been highly protective of continuous unit seniority and has required unit members, who had left the unit to take supervisory posi- tions, to return to the unit at the bottom of the seniority list because they had forfeited their prior unit seniority. On the basis of the foregoing I find the Union has not violat- ed Section 8(b)(1)(A) and (2) of the Act by insisting on Rammage’s placement at the bottom of the merged seniority list, and, accordingly, I further find the Employer has not vio- lated Section 8(a)(3) and (1) of the Act by agreeing to Rammage’s placement at the bottom of the merged seniority list. Riser Foods, Inc., 309 NLRB 635 (1992). The complaint alleges as an independent violation the state- ments to Rammage by Supervisor Roberts and Sales Manager Summers that joining the Union was a requirement for contin- 11 The Employer maintains that Rammage was simply confused and admittedly did not comprehend what he was being told by Roberts and Summers, and therefore misunderstood Summers’s remarks that he “see” or “talk” to the Union as a directive that he would have to “join” the Union. However, Rammage’s insistence that he was told he would have to join the union was persuasive, and, as noted, both Roberts and Summers did not categorically deny Rammage’s testimony in this regard. Accordingly, I credit the testimony of Rammage. ued employment. The applicable collective-bargaining agree- ment contains a provision, article 1, “Union Shop” requiring only that “present employees who are members of the Local Union . . . shall remain members of the Local Union in good standing as a condition of employment.”12 Accordingly, Rammage, as a new unit employee, was not required to become a member of the Union. I therefore find, as alleged in the com- plaint, the Employer has violated Section 8(a)(1) of the Act by advising Rammage that he would have to join the Union as a condition of employment. See Yellow Freight System of Indi- ana, 327 NLRB 996, 997 fn. 6 (1999); Rochester Mfg. Co., 323 NLRB 260, 262 fn. 8 (1997). On the basis of the foregoing, I find that the Employer has violated Section 8(a)(1) of the Act by advising Rammage that joining the Union was a requirement for continued employ- ment. CONCLUSIONS OF LAW AND RECOMMENDATIONS 1. The Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not violated the Act as al- leged. 4. The Respondent Employer has violated the Act only to the extent found herein. THE REMEDY Having found the Respondent Employer has violated and is violating Section 8(a)(1) of the Act, I recommend that it be required to cease and desist therefrom and from in any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. I shall also recommend the posting of an appropriate notice, attached hereto as “Appendix [omitted from publica- tion].” [Recommended Order omitted from publication.] 12 In September 2001, Oklahoma amended its constitution to include a right-to-work provision, Okla. Const. Art XXXIII, sec. 1,A, prohibit- ing any person “as a condition of employment or continuation of em- ployment” to [p]ay any dues, fees assessments, or other charges of any kind or amounts to a labor organization.” However, the parties herein take the position that the applicable clause in the 2001–2006 Won- der/Hostess collective-bargaining agreement, effective by its terms prior to the constitutional amendment, remained in effect during the term of that contract.