Barton Brands, Ltd.

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 640 (N.L.R.B. 1974)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barton Brands, Ltd. and Edward Humes
Distillery, Rectifying, Wine and Allied Workers Inter-
national Union of America, Local 23, AFL-CIO and
Edward Humes . Cases 9-CA-7816-1 and 9-
CB-2286
September 27, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On October 30, 1973, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, General Counsel filed ex-
ceptions and a supporting brief, the Charging Party
filed exceptions and a supporting brief, and Respon-
dent Union filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Barton Brands, Ltd. (herein Barton), and Glencoe
Distilling Company (herein Glencoe) were separately
owned and operated companies in Bardstown, Ken-
tucky, engaged in the production and sale of alcoholic
beverages. Distillery, Rectifying, Wine and Allied
Workers' International Union of America, Local 23,
AFL-CIO (herein Local 23), represents the produc-
tion and maintenance employees of several distilleries
in the area including Barton and the former Glencoe
distillery. Each employer had a separate collective-
bargaining agreement with Local 23. Due to business
reverses, Glencoe sold all its assets and plant facilities
to Barton on or about August 31, 1969.
Paul Kraus, chief operations officer of Barton's en-
terprise at Bardstown, whose duties included the han-
dling of labor relations, arranged for separate
meetings addressed to all Barton and all Glencoe em-
ployees including those on layoff status. Officials of
Local 23 and John McKiernan, a vice president of
International and regional director for its region 2
which includes Kentucky, also attended the meeting.
Kraus explained that Barton planned to expand the
Glencoe facility by building a new bottling plant and
a railroad siding. He further explained that if seniority
at the two facilities were to remain separate Barton
would not transfer employees from one unit to the
other.
Kraus stated he felt that it would serve the best
interests of the employees if the two units were to be
considered as one and seniorities "dovetailed." The
decision was left to the two groups of employees and
both groups voted in favor of "dovetailing." Accord-
ingly, Barton and Local 23 amended their then ex-
isting contract, effective November 28, 1969, and
provided for the "dovetailing" of seniority as indi-
cated above.
For business reasons, Barton subsequently decided
not to build the new bottling plant and railroad siding.
Barton even had to lay off some employees in the
Barton plant in late 1971. Since the "dovetailing"
agreement was in effect, former Glencoe employees
who had extensive seniority with Glencoe continued
to work while Barton employees who had worked
longer for Barton than had the former Glencoe em-
ployees were laid off. Naturally, Barton employees
affected by the layoffs were dissatisfied. When the
time for the expiration of the old contract approached
(June 20, 1972), there apparently was some desire on
the part of the Barton employees affected by the lay-
offs to modify the seniority roster so that seniority
would be based only on the length of service with
Barton. These people found a willing champion of
their cause in the person of Ken Cecil.
In early 1972, Cecil was vice president of Local 23
and a member of the negotiating committee for the
Barton unit. In April or May 1972, he made the union
proposal that seniority of the former Glencoe employ-
ee be "endtailed" rather than "dovetailed." Although
the Company first rejected this proposal, ultimately
the parties agreed on a provision, ratified on October
12, 1972, and retroactive to July 1, 1972, which pro-
vides that for the purposes of layoff and recall the
former Glencoe employees will be deemed to have
seniority at Barton only as of the date of purchase of
Glencoe by Barton. Thus, the former Glencoe em-
ployees had taken away from them the seniority
standing which they had previously enjoyed when
their seniority at Glencoe had been "dovetailed" into
the Barton seniority list.
Nominations for union officers occurred in No-
vember 1972, and elections occurred in December.
Ken Cecil ran unopposed for vice president of Local
23 and he also ran for plant chairman or chief steward
of Barton.
Edward Humes, a former Glencoe employee, testi-
fied that 8 or 10 times during the campaign and on 2
or 3 occasions in early December Cecil emphasized
the fact that he was the one who got the Glencoe
employees knocked down to the bottom of the senior-
ity list and that he did not have anything to worry
about as far as being elected. Humes also testified that
when he told Cecil that Cecil had a responsibility to
213 NLRB No. 71
BARTON BRANDS, LTD.
represent all the people in the Union, Cecil replied, "I
don't have any obligation to that Glencoe bunch at
all. I'm not under any oath or anything to represent
you.,,
Edwin C. Walker, another former Glencoe employ-
ee, testified that around November 1 Cecil said there
would be no Glencoe people there in 30 days. Walker
further testified that around December 1 Cecil told
the Barton employees they should vote for him and he
would get reelected on account of "putting down" the
seniority of the former Glencoe employees. Also,
Walker confirmed Humes' testimony that, in response
to Humes' statement on Cecil's responsibility to rep-
resent all the people in the Union, Cecil replied that
he did not have any oath to represent the Glencoe
people.
Elmer Ball, another former Glencoe employee, tes-
tified that in November Cecil said he was planning to
get rid of the Glencoe bunch and that he had nothing
to worry about in being elected vice president since he
was getting rid of the Glencoe men.
Cecil testified that he did not remember any com-
ment about responsibility to represent other people.
He denied only that he said that he would not repre-
sent all the people, that he told Ball he was going to
get rid of the Glenco men, and that there would not
be any former Glenco employees left within 30 days
after his conversation with Walker.
The General Counsel and Charging Party contend
that the facts of this case establish a violation of Sec-
tion 8(b)(1)(A) and (2) on the part of the Union, and
Section 8(a)(3) and (1) on the part of the Company in
view of the precedent established in Miranda Fuel
Company, Inc., 140 NLRB 181. Miranda holds that a
bargaining representative and an employer violate
Section 8(b)(2) and (1)(A) and 8(a)(3) and (1) of the
Act, respectively, when the union attempts to cause or
does cause an employer to derogate the employment
status of an employee for arbitrary or irrelevant rea-
sons or upon the basis of an unfair classification.,
While Ford Motor Company v. Huffman, 345 U.S. 330,
teaches that a wide range of reasonableness must be
allowed a statutory bargaining representative in serv-
ing the unit it represents, the bargaining representa-
tive is still subject always to complete good faith and
honesty of purpose in the exercise of its discretion.
The Respondent Union did violate its duty of fair
representation to all the employees in the bargaining
unit when it "endtailed" the seniority of the former
Glencoe employees largely, if not solely, for the rea-
son to advance the political cause of Union Official
Ken Cecil. The motivation for the Union's stand of
1 See also The Wallace Corporation v. N.L.R.B., 323 U.S. 248; Steele v.
Louisville & Nashville Railroad Co, et. al., 323 U.S. 192; Tunstall v. Brother-
hood of Locomotive Firemen & Engineers, 323 U.S. 210.
641
"endtailing" was not any good-faith effort to repre-
sent all of the employees in an admittedly difficult
situation where either the laid-off Barton group or the
former Glencoe group must lose; rather the motiva-
tion for the Union's stand was to assure the election
of Ken Cecil by the numerically superior Barton em-
ployees at the expense of the small minority of former
Glencoe employees.2
Contrary to our dissenting colleague, we find that
the Union did not demonstrate good faith or honesty
of purpose. Cecil's statements claiming responsibility
for "endtailing" the former Glencoe employees dem-
onstrate that his purpose was to enhance his own
political objectives' Moreover, he stated categorically
that he had no obligation to represent the former
Glencoe employees even though they were in the bar-
gaining unit. In view of the foregoing, we find that the
Union transgressed the "wide range of reason-
ableness" accorded a statutory bargaining representa-
tive in serving the unit it represents.
Truck Drivers and Helpers, Local Union 568 (Red
Ball Motor Freight, Inc.), 157 NLRB 1237, is relevant
here. In Red Ball, we found a violation of Section
8(b)(1)(A) based on the fact that one of the two unions
competing for employee support in a Board-conduct-
ed election promised that if it prevailed in the election
the contract with the employer would provide that its
members would have seniority over the members of
the competing union. In the instant casc, as in Red
Ball, Cecil played a strong political group, the Barton
employees, against a weak political group, the former
Glencoe employees for Cecil's advantage.
Respondent Union would distinguish the Red Ball
decision by noting that it involved a Board-conducted
election where groups were distinguished by member-
ship in the weaker or stronger union while the instant
case involves two groups within a union. This is a
distinction without a difference. A union has an obli-
gation to represent all employees in a unit fairly and
violates this duty when it takes a position for intraun-
ion partisan political reasons. The duty of fair repre-
sentation is constant no matter in which context it
arises.
We cannot agree with the Administrative Law
Judge when he sanctions the union conduct here on
the theory that union officials like politicians must
take action to curry favor with the majority of em-
2 There were about 223 employees in the unit, only 12 of whom were
former Glencoe employees.
7 In reply to our dissenting colleague who claims we rely on statements
made by Ken Cecil after the contract was signed , we note that Cecil seized
the Glencoe "endtailing" issue in April or May 1972 at a union meeting
where the union president instructed the stewards and plant chairmen to
canvass the plant for bargaining proposals . Cecil immediately raised the
Glencoe "endtailing" issue at this meeting which was several months prior
to the signing of the contract on October 12, 1972, and, indeed, even before
contract negotiations had begun.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in order to insure their reelection and that a
candidate for office cannot prevail unless he convinc-
es a majority of the electorate to support him. An
elected union official , doubtless has a need to develop
and to maintain his constituency , like any politician
in any other context . However , as a union official, he
is under a statutory duty to see that all employees are
fairly represented , and he may not lawfully violate
that duty by causing interference in the employment
relationship of any employees in the unit upon arbi-
trary grounds solely to advance his own personal po-
litical ambition within the Union.
THE REMEDY
Having found that the Respondents have engaged
in unfair labor practices , we shall order that each of
them cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of
the Act.
Respondent Company , having discriminated
against Edward Humes, Lucy Stone, Samuel A. Cam-
bron , Charles E . Ball, A. D . Lanham , Charles Miles,
James R. Hutchins , Charles E . Mattingly , Edwin C.
Walker, Joseph J. Riggs , Charles Greenwell , William
E. Welch , and Lelia Fields (herein the former Glencoe
employees), who were on the seniority list of Glencoe
Distilling Company on August 31 , 1969, for the pur-
poses of layoff and recall by the adoption of the last
paragraph of article VIII , section 1, of the collective-
bargaining agreement , must immediately restore them
to their former positions on the seniority roster or to
such higher positions on the roster to which they may
be entitled if employees of higher seniority have since
terminated their employment with the Company for
all purposes and to all rights attached to such posi-
tions on the roster . Respondent Union , having caused
the Company to discriminate against the former
Glencoe employees , shall immediately notify the
Company and the former Glencoe employees that it
has no objection to their restoration on the seniority
roster which we will order and to all rights attached
to such positions on the roster.
We shall also order that the Company and the
Union , jointly and severally, make the former Glen-
coe employees whole for any loss of pay they may
have suffered by reason of the discrimination against
them, by payment to them individually of a sum of
money equal to what they normally would have
earned as wages had they been occupying their former
positions on the list from July 1, 1972 , to the date
when , pursuant to the Order herein , the Company
shall restore them to said position on the list , less their
net earnings during said period . Respondent Union
may terminate its liability for the further accrual of
backpay by notifying the Respondent Company, in
writing , that the Respondent Union has no objection
to the restoration of the former Glencoe employees to
their former positions on the seniority roster . The Re-
spondent Union shall not thereafter be liable for any
backpay accruing after 5 days from the giving of such
notice.
Backpay shall be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest added thereto in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1963).
We shall order further that Respondent Company
make available to the Board upon request payroll and
other records , in order to facilitate the checking of the
amount of backpay due and the rights of employment
under the terms of this Order.
Since we have concluded that Respondents are giv-
ing effect to an agreement containing unlawful senior-
ity provisions , we shall further order that they refrain
from doing so in the future.
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case , we make the
following:
AMENDED CONCLUSIONS OF LAW
We hereby amend the Administrative Law Judge's
Conclusion of Law 4 as follows and add Conclusions
of Law 5 , 6, and 7:
"4. The collective -bargaining agreement between
the Company and the Union, inter alia, "endtails"
seniority of the former Glencoe employees for the
purposes of layoff and recall.
"5. By performing and giving effect to said collec-
tive-bargaining agreement, the Company has inter-
fered with, restrained , and coerced employees in the
exercise of rights guaranteed by Section 6 of the Act,
and has discriminated against employees in respect to
their hire and tenure of employment and other terms
and conditions of employment , and has thereby en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
"6. By performing and giving effect to its collec-
tive-bargaining agreement with the Company con-
taining the aforesaid unlawful seniority provision, the
Union has restrained and coerced employees in the
exercise of their rights guaranteed by Section 7 of the
Act, and has caused or attempted to cause the Com-
pany to discriminate against employees in violation of
Section 8 (a)(3) of the Act, and has thereby engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
"7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act."
BARTON BRANDS , LTD. 643
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. Respondent Barton Brands, Ltd., Bardstown,
Kentucky, its officers agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Encouraging membership in, or activities on
behalf of, the Respondent Union or any other labor
organization of its employees, by reducing seniority of
any of its employees, pursuant to a collective-bargain-
ing agreement or otherwise, or by discriminating
against them in any other manner in regard to their
hire or tenure of employment, or any term or condi-
tion of employment, except to the extent permitted by
Section 8(a)(3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act, ex-
cept to the extent that such rights may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Restore Edward Humes, Lucy Stone, Samuel
A. Cambron, Charles E. Ball, A. D. Lanham, Charles
Miles, James R. Hutchins, Charles E. Mattingly, Ed-
win C. Walker, Joseph J. Riggs, Charles Greenwell,
William E. Welch, and Lelia Fields to their former
positions on the seniority roster or to such higher
positions on the roster to which they may be entitled
if employees of higher seniority have since terminated
their employment with the Company for all purposes
and to all rights attached to such positions on the
roster.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due and the rights of employment and se-
niority under the terms of this Order.
(c) Post at its premises at Bardstown, Kentucky,
copies of the attached notice marked "Appendix A." °
Copies of said notice, on forms provided by the Re-
gional Director for Region 9, after being duly signed
by an authorized representative of the Company, shall
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
be posted by the Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Com-
pany to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Post at the same places and under the same
conditions as set forth in paragraph A, 2, (c), above,
as soon as they are forwarded by the Regional Direc-
tor, copies of the Respondent Union's attached notice
marked "Appendix B."
(e) Mail to the Regional Director for Region 9
signed copies of the attached notice marked "Appen-
dix A" for posting by Respondent Distillery, Rectify-
ing, Wine and Allied Workers' International Union of
America, Local 23, AFL-CIO, at its business offices
and meeting halls, including all places where notices
to members are customarily posted. Copies of said
notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by an author-
ized representative of the Company, be forthwith re-
turned to the Regional Director for such posting.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
B. Respondent Distillery, Rectifying, Wine and
Allied Workers' International Union of America, Lo-
cal 23, AFL-CIO, Bardstown, Kentucky, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause the Respondent
Company to discriminate against Edward Humes,
Lucy Stone, Samuel A. Cambron, Charles E. Ball,
A. D. Lanham, Charles Miles, James R. Hutchins,
Charles E. Mattingly, Edwin C. Walker, Joseph J.
Riggs, Charles Greenwell, William E. Welch, and Le-
lia Fields, or any other employee in violation of Sec-
tion 8(a)(3) of the Act.
(b) In any like or related manner, restraining or
coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Notify Edward Humes, Lucy Stone, Samuel A.
Cambron, Charles E. Ball, A. D. Lanham, Charles
Miles, James R. Hutchins, Charles E. Mattingly, Ed-
win C. Walker, Joseph J. Riggs, Charles Greenwell,
William E. Welch, and Lelia Fields and the Respon-
dent Company that it has no objection to the restora-
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of said employees to their former positions on the
seniority roster for all purposes, or to such other posi-
tions to which the said employees may be entitled,
together with the rights pertaining to those positions.
(b) Post at its business offices and meeting halls in
Bardstown, Kentucky, copies of the attached notice
marked "Appendix B." 5 Copies of said notice, on
forms provided by the Regional Director for Region
9, after being duly signed by an authorized represen-
tative of the Respondent Union, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to mem-
bers are cutomarily posted. Reasonable steps shall be
taken by Respondent Union to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Post at the same places and under the same
conditions as set forth in paragraph B, 2, (b), above,
as soon as they are forwarded by the Regional Direc-
tor, copies of the Respondent Company's attached
notice marked "Appendix A."
(d) Mail to the Regional Director for Region 9
signed copies of the attached notice marked "Appen-
dix B" for posting by Barton Brands, Ltd., at its prem-
ises in Bardstown, Kentucky, in places where notices
to employees are customarily posted. Copies of the
notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by an author-
ized representative of the Respondent Union, be
forthwith returned to the Regional Director for such
posting.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to com-
ply herewith.
C. Respondent Barton Brands, Ltd., its officers,
agents, successors , and assigns, and Respondent Dis-
tillery, Rectifying, Wine and Allied Workers' Interna-
tional Union of America, Local 23, AFL-CIO, and its
officers, agents , and representatives, shall jointly and
severally make Edward Humes, Lucy Stone, Samuel
A. Cambron, Charles E. Ball, A. D. Lanham, Charles
Miles, James R. Hutchins, Charles E. Mattingly, Ed-
win C. Walker, Joseph J. Riggs, Charles Greenwell,
William E. Welch, and Lelia Fields individually
whole for any loss of pay they may have suffered
because of the discrimination against them in the
manner set forth in section of this Decision entitled
"The Remedy."
MEMBER JENKINS, dissenting:
I do not agree with my colleagues' conclusions that
Respondent Company violated Section 8(a)(1) and (3)
3 See fn . 4, supra.
of the Act, nor do 1 agree that Respondent Union
violated Section 8(b)(1)(A) and 8(b)(2) of the Act.
Instead, for the reasons hereinafter set forth, I agree
with the Administrative Law Judge's conclusion that
the complaints should be dismissed in their entirety.
The facts in this case are, for the most part, not
disputed. Briefly, it appears that Respondent Union
represents and has represented, in separate units, the
employees of several employers in the Bardstown,
Kentucky, area. In this regard, the Union has repre-
sented the Glencoe employees since 1941 and Re-
spondent Barton's employees since 1953. Each of the
bargaining units has a different seniority list and, with
the exception of the dovetailing arrangement dis-
cussed below, the seniority list for each bargaining
unit has always remained separate.
On or about August 31, 1969, Glencoe sold all its
assets and plant facilities to Respondent Barton. At
the time of this sale Glencoe had only about five unit
employees on its payroll, and some 25 or 30 employ-
ees in layoff status, some of whom had not worked for
as much as 8 to 10 years.6 The Union and Glencoe had
been parties to a collective-bargaining agreement cov-
ering these employees, but the agreement had expired
on or about April 30, 1969. It appears that this con-
tract, as noted above, contained a separate Glencoe
seniority provision. In the meantime, sometime prior
to August 31, Respondent Barton and the Union had
concluded negotiations for a new collective-bargain-
ing agreement covering the Barton employees. This
agreement made no provision for the integration of
the bargaining units or seniority at the Barton plant
and the Glencoe plant.
After the purchase of Glencoe by Barton, Paul
Kraus, chief operations officer of Barton, arranged
for separate meetings and at those meetings addressed
all Barton and Glencoe employees, including those
then on layoff status. Also in attendance at the sepa-
rate meetings were officials of Local 23, as well as
John McKiernan, a vice president of the Internation-
al. At these separate meetings Kraus explained that
Barton had broad sweeping plans for the expansion of
both plant facilities including the construction of a
new bottling complex. He also assured both groups
that Barton planned to accept the former Glencoe
employees as its own, that Barton intended to recall
those Glencoe employees in layoff status, and that
there would be no lack of work. He concluded by
urging that the employees agree to "dovetailing" the
seniority of the Barton and former Glencoe employ-
ees into one list because this would be good for both
groups. Thereafter, both groups voted in favor of
Kraus' suggestion.
6 Charging Party Humes was on layoff status at Glencoe and had been laid
off for approximately 9 or 9 years before.
BARTON BRANDS, LTD.
Subsequently, Barton and the Union began negoti-
ations regarding the integration of the two bargaining
units . These negotiations resulted in an amendment to
the existing collective-bargaining agreement with Bar-
ton which was signed on December 8, 1969. This
amendment appears to provide, in part, that employ-
ees who were on the seniority list of Glencoe on Au-
gust 31, 1969, were deemed employees covered by the
collective-bargaining agreement between Barton and
the Union as of September 1, 1969, and were to be
credited with the seniority which they had attained as
of August 31, 1969, as employees of Glencoe. Prior to
the execution of that amendment, the amendment
was discussed in separate meetings with the employ-
ees of Barton and Glencoe. It appears that Kraus
attended both meetings and informed each group that
if there were no merger of bargaining units and the
dovetailing of seniority, Barton still planned to build
a new complex at Glencoe and that Glencoe would
still have its separate seniority which would mean "we
don't have to transfer any Barton people down to the
new Glencoe complex, we can hire people off the
street ." The proposed amendment was ratified by
votes of the employees in both groups.
Sometime later, Barton abandoned its plans for ex-
pansion and there was a substantial reduction in the
volume of production. This resulted in some layoffs in
the Barton plant in late 1971. Pursuant to the existing
collective-bargaining agreement, former Glencoe em-
ployees who had extensive seniority with Glencoe
continued to work while Barton employees with less
seniority were laid off. At this point the Barton em-
ployees became disenchanted with the existing agree-
ment and the record shows that several complained
about the seniority provision to Union Vice President
Cecil and other union officials . Sometime later, and in
preparation for bargaining on a new contract, ideas
were solicited from the employees by the union stew-
ards as to proposed contract changes. "Dovetailing"
of seniority was one of the major items which the
employees wanted changed.
The record shows that in March, as a result of
disagreement between International Vice President
McKiernan and the union members as to whether the
Union should seek a change in the seniority provision,
the Union sought and received an opinion letter from
a private attorney which expressed to the Union that
the dovetailing provision was an appropriate subject
for bargaining and could be negotiated out of exis-
tence by mutual agreement of the parties. This letter
was thereafter given to Kraus who would be handling
negotiations for Barton. It also appears that Interna-
tional Vice President McKiernan contacted the Inter-
national Union's counsel to determine if the
dovetailing arrangement could be eliminated during
645
the upcoming bargaining. McKiernan was instructed
that the dovetailing arrangement could be changed.
Thereafter, some 41 proposals, including the proposal
to amend the dovetailing provision, were agreed upon
by the negotiating committee and were subsequently
approved by a vote of the membership.
At the first negotiating session the Union advanced
its proposals which had been approved by the mem-
bership. At this meeting Barton rejected the proposal
regarding seniority along with many other proposals.
However, during subsequent sessions tentative agree-
ment was reached on September 22, 1972, for a new
collective-bargaining agreement to be effective as of
July 1, 1972. The new contract provisions, including
the provision for "endtailing" of seniority for purpos-
es of layoff and recall and "dovetailing" seniority for
all other purposes, were ratified by the membership of
the Union on October 12, 1972.
Testifying as to the reason for his bargaining on and
agreeing to the endtailing provision Barton's chief op-
erations officer, Kraus, indicated that during the
course of bargaining the endtailmg provision urged by
the Union was really a provision urged by the mem-
bership at large and he was doubtful during the course
of bargaining that the union officers could control the
membership because of the "strong feeling" in this
regard.
Following the execution of the contract some addi-
tional layoffs occurred and, because of the change in
the seniority provisions, former Glencoe employees
were laid off at times . But for the change in contract
terms , these Glencoe employees would not have been
laid off.
In assessing the parties' course of conduct in this
case , I am guided by the Supreme Court teachings set
forth in Aeronautical Industrial District Lodge 727 v.
Campbell et al., 337 U.S. 521 (1949), and Ford Motor-
Company v. Huffman, 345 U.S. 330 (1953). In the Aer-
onautical Lodge 727 case , supra at 525, the Court ob-
served as to the essence of collective bargaining that:
It is of the essence of collective bargaining that
it is a continuous process. Neither the conditions
to which it addresses itself nor the benefits to by
secured by it remain static. They are not frozen
even by war.
Thereafter, the Court noted that collective bargaining
regularly leads to seniority systems and seniority
rights of employees, but by its holding in that case the
court indicates that not even these sytems and rights
remain static , and that a collective-bargaining repre-
sentative is within its authority when, in the general
interests of those it represents, it agrees to allow union
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chairmen certain advantages in retention of their em-
ployment, even to the prejudice of veterans otherwise
entitled to greater seniority.
Thereafter, in the Ford Motor case supra at 337-338,
the Court again alluded to the latitude permitted
unions in discharging their statutory duty of repre-
senting the employees:
Any authority to negotiate derives its principal
strength from a delegation to the negotiators of
a discretion to make such concessions and accept
such advantages as, in the light of all relevant
considerations, they believe will best serve the
interests of the parties represented. A major re-
sponsibility of negotiators is to weigh the relative
advantages and disadvantages of differing pro-
posals.
Continuing, the Court stated:
Inevitably differences arise in the manner and
degree to which the terms of any negotiated
agreement affect individual employees and
classes of employees. The mere existence of such
differences does not make them invalid. The
complete satisfaction of all who are represented
is hardly to be expected. A wide range of reason-
ableness must be allowed a statutory bargaining
representative in serving the unit it represents,
subject always to complete good faith and hones-
ty of purpose in the exercise of its discretion.
I believe, after carefully considering the course of
conduct as described in record testimony, that the
Union accepted that "wide range of reasonableness"
permitted it and in "complete good faith and honesty
of purpose" advanced, negotiated, and approved the
1972 contract. Clearly, in my view, neither its conduct
or position, nor the conduct or position of Barton,
violated the Act.
My colleagues seize upon certain remarks made by
Union Official Ken Cecil, in an election campaign
sometime after the contract was signed, to find that
the Union violated its duty of fair representation. In
my view these remarks merely reveal that Cecil seized
upon the ending of dovetailing to improve his election
standing. These remarks in no way establish that the
Union's motivation in bargaining over the seniority
provision was to insure the election of Ken Cecil.
Indeed, as I have noted above, Cecil advanced the
proposal involving revision of the seniority provision
at the insistence of the employees affected by the
provision. Moreover, the membership approved the
proposal before bargaining commenced. Further-
more, the Union and International Vice President
McKiernan were sufficiently concerned to solicit fur-
ther legal opinions before proceeding, a course highly
unlikely if the only purpose was to assure Cecil's elec-
tion. Similarly, even Kraus realized that the proposal
had extremely strong support from the employees and
concluded that the union officers probably couldn't
control the members on this single issue. Plainly, the
parties were not out to satisfy Cecil's future election
ambitions, but were out to arrive at a reasonable solu-
tion to the employees demands.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT encourage membership in, or ac-
tivities on behalf of, Distillery, Rectifying, Wine
and Allied Workers' International Union of
America, Local 23, AFL-CIO, or any other labor
organization of our employees, by reducing the
seniority of any of our employees pursuant to a
collective-bargaining agreement or otherwise, or
in any other manner discriminating against our
employees in regard to their hire or tenure of
employment, or any term or condition of em-
ployment, except to the extent permitted by Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed by Section
7 of the Act, except to the extent that such rights
may be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of
the Act.
WE WILL restore Edward Humes, Lucy Stone,
Samuel A. Cambron, Charles E. Ball, A. D. Lan-
ham, Charles Miles, James R. Hutchins, Charles
E. Mattingly, Edwin C. Walker, Joseph J. Riggs,
Charles Greenwell, William E. Welch, and Lelia
Fields to their former positions on the seniority
roster or to such higher positions on the roster to
which they may be entitled if employees of higher
seniority have since terminated their employ-
ment with the Company for all purposes, togeth-
er with all the rights pertaining to those positions.
WE WILL jointly, with the above-named Union,
BARTON BRANDS , LTD. 647
make whole Edward Humes, Lucy Stone, Samuel
A. Cambron, Charles E. Ball, A. D. Lanham,
Charles Miles, James R. Hutchins, Charles E.
Mattingly, Edwin C. Walker, Joseph J. Riggs,
Charles Greenwell, William E. Welch, and Lelia
Fields for any loss of pay they may have suffered
because of the discrimination against them.
BARTON BRANDS, LTD.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 3003, 550
Main Street, Cincinnati, Ohio 45202, Telephone 513-
684-3686.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Barton
Brands, Ltd., to discriminate against Edward
Humes, Lucy Stone, Samuel A. Cambron,
Charles E. Ball, A. D. Lanham, Charles Miles,
James R. Hutchins, Charles E. Mattingly, Edwin
C. Walker, Joseph J. Riggs, Charles Greenwell,
William E. Welch, and Lelia Fields, or any other
employee in violation of Section 8(a)(3) of the
Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed by Section 7 of the Act, except
to the extent that such rights may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
WE WILL notify Edward Humes, Lucy Stone,
Samuel A. Cambron, Charles E. Ball, A. D. Lan-
ham, Charles Miles, James R. Hutchins, Charles
E. Mattingly, Edwin C. Walker, Joseph J. Riggs,
Charles Greenwell, William E. Welch, and Lelia
Fields and said Company that we have no objec-
tions to the restoration of said employees to their
former positions on said Company's seniority
roster, or to such other positions to which said
employees may be entitled together with all the
rights pertaining to those positions.
WE WILL jointly, with Barton Brands, Ltd.,
make whole said Edward Humes, Lucy Stone,
Samuel A. Cambron, Charles E. Ball, A. D. Lan-
ham, Charles Miles, James R. Hutchins, Charles
E. Mattingly, Edwin C. Walker, Joseph. J. Riggs,
Charles Greenwell, William E. Welch, and Lelia
Fields for any loss of pay they may have suffered
because of the discrimination against them.
DISTILLERY , RECTIFYING
WINE AND ALLIED WORK-
ERS INTERNATIONAL UNION
OF AMERICA , LOCAL 23,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 3003,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This pro-
ceeding tried before me at Louisville, Kentucky, on August
28 and 29,1 involves two complaints pursuant to Section
10(b) of the National Labor Relations Act, as amended
(herein the Act),2 said complaints having been consolidated
for trial by Order dated July 17. The complaints allege in
1 This and all dates herein mentioned are 1973, unless otherwise stated.
2 In Case 9-CA-7816-1 the complaint issued July 17, on a charge filed
June 4 and served June 5. In Case 9-CB-2286, the complaint issued March
15, on a charge filed October 10, 1972, and amended November 6 and 20,
1972, and served October 13 and November 9 and 27, 1972, respectively.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substance that on September 22, 1972, Barton Brands, Ltd.
(herein Barton or Respondent Company); and Distillery,
Rectifying Wine and Allied Workers International Union
of America, Local 23, AFL-CIO (herein Local 23 or Re-
spondent Union), entered into a collective-bargaining
agreement which had the effect of reducing the seniority of
members of Respondent Union employed by Respondent
Company, which subsequently caused certain of said em-
ployees to lose employment, and that Respondent Compa-
ny and Respondent Union, respectively, thereby violated
Section 8(a)(1) and (3), and Section 8(b)(2) and (IXA) of the
Act. For reasons hereafter more fully detailed, I find and
conclude that the evidence fails to establish any violation of
the Act, and accordingly recommend that both complaints
be dismissed in their entirety.
At the trial, full opportunity was afforded all parties to
introduce relevant and material evidence, to examine and
cross-examine witnesses , to argue orally on the record, and
to submit briefs. Oral agruments were waived by the parties.
Briefs submitted by the General Counsel, and both Respon-
dents, have been duly considered. Upon the pleadings, stip-
ulations of counsel, the evidence, including my observation
of the demeanor of the witnesses while testifying, and the
entire record in the case, I make the following:
FINDINGS OF FACT 3
A. Background
For many years Barton and Glencoe Distilling Company
(herein Glencoe) were separately owned and operated com-
panies in Bardstown , Kentucky , engaged in the production
and sale of alcoholic beverages with Local 23 representing
the production and maintenance employees of both compa-
nies in separate units .' Separate collective-bargaining agree-
ments between said employers and the Union were in
effect.' Sometime in or prior to 1969, Glencoe suffered sub-
stantial business reverses which finally resulted in Glencoe
selling all its assets and plant facilities to Barton on or about
August 31, 1969. At the time of this purchase transaction
Glencoe had only about five unit employees on its payroll,
and some 25 or 30 in layoff status, some of whom had not
worked for as much as 8 to 10 years . No question of succes-
sorship is involved in this case.
With the consummation of the aforesaid purchase agree-
ment, Paul Kraus , chief operations officer of Barton's enter-
prise at Bardstown, Kentucky, and whose duties included
the handling of labor relations for the Company, arranged
for and in separate meetings addressed all Barton and Glen-
coe employees, including those who were then in layoff
3 No issue of commerce or labor organization is presented . The com-
plaints allege , and by answer duly filed or by stipulation at the trial, Re-
spondents admitted facts which establish these jurisdictional elements. I
find those facts to be as pleaded or stipulated.
4 Initially Barton operated under the name of Barton Brands , Inc. Some
time subsequent to September 1, 1969, the name was changed to Barton
Brands, Ltd., and all times since it has operated under that name. This
involved no change in the identity of that employer.
S A contract between Barton and the Union was executed effective from
July 1, 1%9, to June 30, 1972. This contract was renewed effective July 1,
1972, to June 30, 1975. A contract with Glencoe was effective from July 1,
1966, to June 30, 1969, which was never renewed.
status . Also in attendance at these meetings were officials
of Local 23, as well as John McKiernan, a vice president of
the International , and Regional Director for its Region 2,
which includes Kentucky. Kraus explained in both of those
meetings that Barton has extensive plans for expansion of
both the original and newly acquired plants, such as the
construction of a new bottling plant and railroad siding.
Kraus admits that at both of these meetings he assured the
employees that Barton planned to accept as its own the
Glencoe employees, including the recall of those in layoff
status ; there would be no lack of work; and he recommend-
ed that the two groups of employees agree to "dovetailing"
the seniority of the Barton and former Glencoe employees
into one list . Both groups voted in favor of Kraus' sugges-
tion. Accordingly, Barton and Local 23 amended their then
existing contract,6 effective November 28, 1969, providing
for the "dovetailing" of seniority as above indicated.
As so frequently happens, future events do not always
occur as anticipated. For reasons Barton deemed adequate,
neither the railroad siding nor the new bottling plant was
built, resulting in a substantial reduction in its volume of
production. This resulted in some layoffs in the Barton
plant in late 1971. On these occasions pursuant to the "do-
vetailing" agreement , former Glencoe employees who had
extensive seniority with Glencoe, continued to work, while
Barton employees who had worked longer for Barton than
had the former Glencoe employees, were laid off. This, as
to be expected, caused considerable dissatisfaction among
the Barton employees affected by the lay-offs. Accordingly,
as the time approached to negotiate with Barton for a con-
tract to replace the one to expire on June 30, 1972, the
employees were asked for suggestions as to what they want-
ed in a new contract. The Barton employees requested that
the Union seek a modification of the then existing contract
that would result in a seniority roster based only on length
of service with Barton.
B. The Unfair Labor Practices Alleged
In the bargaining negotiations that commenced early in
1972, among the proposals advanced by the Union was one
designed to accomplish the result requested by the Barton
employees. Although this was at first rejected by the Com-
pany, ultimately the parties agreed upon a provision which
became a part of the contract ratified on October 12 retro-
active to July 1, 1972, which provides: -
PERSONS EMPLOYED AT DISTILLED SPIRITS PLANT-KY 4 AT AU-
GUST 31, 1%9 AND WHO WERE ON THE SENIORITY LIST OF GLENCOE
DISTILLING COMPANY AT AUGUST 31,1%9 PURSUANT TO THE COL-
LECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND
GLENCOE DISTILLING COMPANY SHALL BE DEEMED EMPLOYEES
COVERED BY THIS AGREEMENT AS OF SEPTEMBER 1, 1969 AND
SHALL , FOR THE PURPOSES OF THIS AGREEMENT, BE CREDITED
WITH THE SENIORITY THEY HAD ATTAINED AS OF AUGUST 31,1%9
AS SUCH EMPLOYEES OF GLENCOE DISTILLING COMPANY, EXCEPT
FOR PURPOSES OF LAY-OFF AND RECALL , WHENEVER CONTINU.
OUS SERVICE OR SENIORITY IS REQUIRED FOR BENEFITS AND
6 That contract had been executed October 2 retroactive to July 1, 1969,
and expiring June 30, 1972.
BARTON BRANDS , LTD. 649
PRACTICES UNDER THIS AGREEMENT, IT SHALL BE INTERPRETED
TO INCLUDE CONTINUOUS SERVICE OR SENIORITY ATTAINED AS
AN EMPLOYEE OF GLENCOE DISTILLING COMPANY AS HEREIN-
ABOVE SET FORTH. FOR THE PURPOSES OF DETERMINING THE OR-
DER OF LAY-OFF AND RECALLS ONLY, PERSONS EMPLOYED AT
DISTILLED SPIRITS PLANT KY 4 AT AUGUST 31, 1%9 AND WHO WERE
ON THE AFORESAID SENIORITY LIST OF GLENCOE DISTILLING
COMPANY SHALL BE CREDITED WITH SENIORITY COMMENCING
SEPTEMBER 1, 1%9.
During this period of negotiations for the last-mentioned
contract the average unit employment at Barton was 223, 12
of whom were former Glencoe employees. Following the
execution of the contract, additional layoffs occurred, and
because of the above-quoted contract provision, the 12 for-
mer Glencoe employees were laid off at various times in late
1972 and in 1973. The parties stipulated that but for said
contract provision, said 12 employees would not have been
laid off at the various times they were?
C. Contentions and Conclusions
The General Counsel's contention that the facts of this
case establish a violation of Sections 8(b)(1)(A) and (2) on
the part of the Union, and 8(a)(3) and (1) on the part of the
Company, is predicated on his interpretation of the Board's
decision in Miranda Fuel Oil Company, Incorporated, 140
NLRB 181. In that case the Union, because it felt an em-
ployee had with the employer's consent taken a vacation at
a time when it was inappropriate for him to do so, prevailed
upon the employer to reduce that employee's position on
the seniority register substantially below the position he was
entitled under the collective-bargaining contract. The
Board concluded that the Union's conduct violated Section
8(b)(1)(A) and (2) of the Act, because it was in contraven-
tion of its duty of fair representation owing to all employees
in the unit, and that the employer violated Section 8(a)(3)
and (1) of the Act, by acquiescing in the Union's demand.
The Board's conclusions in that regard were distilled from
the Supreme Court's holding in the Wallace Corporation v.
N.L.R.B., 323 U.S. 248, 255; Steel v. Louisville & Nashville
Railroad Co., et al., 323 U.S. 192, 202; Tunstall v. Brother-
hood of Locomotive Firemen & Engineers, 323 U.S. 210: and
Ford Motor Company v. Huffman, 345 U.S. 330, 337. The
Board reasoned [pp. 184-185];
... The privilege of acting as an exclusive bargaining
representative derives from Section 9 of the Act, and a
union which would occupy this statutory status must
assume `the responsibility to act as genuine representa-
tive of all the employees in the bargaining unit.' Thus,
the Supreme Court has observed that: `The duties of a
bargaining agent selected under the terms of the Act
extends beyond the mere representation of the interest
of its own group members. By its selection as bargaining
representative, it has become the agent of all the employ-
ees, charged with the responsibility of representing their
interest fairly and impartially.'
r The complaint in Case 9-CA-78101, names 13 employees allegedly in
this category. At the trial the General Counsel amended that paragraph of
the complaint to delete all reference to M. L. Stone, thus reducing the
number of discriminatees to 12.
... Viewing these mentioned obligations of a statuto-
ry representative in the context of the `right guaranteed
employees by Section 7 of the Act' to bargain collec-
tively through representatives of their own choosing,
we are of the opinion that Section thus gives employees
the right to be free from unfair or irrelevant or invidi-
ous treatment by their exclusive bargaining agent in
matters affecting their employment. This right of em-
ployees is a statutory limitation on statutory bargaining
representatives, and we conclude that Section
8(b)(IXA) of the Act accordingly prohibits labor orga-
nizations, when acting in a statutory representative ca-
pacity, from taking action against any employee upon
considerations or classifications which are irrelevant,
invidious, or unfair... .
We further conclude that a statutory bargaining repre-
sentative and an employer also respectively violate Sec-
tion 8(b)(2) and 8(a)(3) when, for arbitrary or irrelevant
reasons or upon the basis of an unfair classification, the
union attempts to cause or does cause an employer to
derogate the employment status of an employee .. .
[citations omitted.]
The General Counsel concludes from Miranda, that when
the Union in the instant case proposed and ultimately ob-
tained the employer's agreement to the "entailing" provi-
sion of the 1972 contract, it caused the former Glencoe
employees (approximately 12 in number), to loose substan-
tial seniority rights which they acquired by the "dovetail-
ing" amendment to the 1969 contract, thereby giving the
Barton employees substantial rights they did not have under
that agreement, and argues, to quote from his brief (p. 5),
that "to say that the present situation is unlike Miranda
would be to find a distinction without a difference." I am
unable to agree. The falacy in his argument, I find and
conclude, lay in what appears to me to be his unsupported
assumption , that under the facts disclosed by this record,
what the Union did was based, in the language of Miranda,
"upon considerations or classifications which are irrelevant,
invidious, or unfair."
In Ford Motor Company, supra, the Supreme Court noted,
that although the collective-bargaining representative has
the duty to "make an honest effort to serve the interests of
all . . . [members of the unit] without hostility to any" (345
U.S. at 337), that in performing that duty:
Inevitably differences arise in the manner and degree
to which the terms of any negotiated agreement affect
individual employees and classes of employees. The
mere existence of such differences does not make them
invalid. The complete satisfaction of all who are repre-
sented is hardly to be expected. A wide range of reason-
ableness must be allowed a statutory bargaining
representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose
in the exercise of its discretion. [345 U.S. at 338] 8
It may be noted that in Ford Motor Company, supra, the facts were that
Ford and UAW had entered into a collective-bargaining agreement contain-
Continued
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With these principles in mind it is obvious that Respon-
dent Union found itself in an awkward position when it
developed that because Barton did not proceed with its
theretofore promised expansion program, diminution in
work opportunities and layoffs resulted. Self-interest obvi-
ously dictated to the Barton employees that they should
regard as unfair the "dovetailing" agreement which resulted
in former Glencoe employees having seniority over employ-
ees who had longer periods of service with Barton, and
self-interest equally dictated to the former Glencoe employ-
ees that they make every effort to retain the seniority rights
which they acquired by the "dovetailing" amendment, albeit
that they had no legal claim and could not enforce such
seniority but for the amendment. It is plain that in this
posture it was utterly impossible for the Union to pursue
any course that would satisfy both groups. So long as its
resolution of the problem it faced meets the test of reason-
ableness-as I find and conclude it does- 9 its action in
that regard is subject to challenge only upon a showing that
it was motivated by bad faith or dishonesty of purpose. Ford
Motor Company v. Hoffman, supra; Vaca v. Sipes, 386 U.S.
171; Simon Levi Company, 181 NLRB 826.
In an effort to establish that Respondent Union acted in
bad faith and out of anamosity toward the 12 former Glen-
coe employees who lost their seniority by "entailing" agree-
ment, the General Counsel relies on statements made to at
least some of those employees by officials of the Union, that
on the next layoff the former Glencoe employees would go
while the Barton employees would be working; that the
Union owed the former Glenco employees nothing, and
would do nothing for them.10 Additionally, the General
Counsel points to the fact that the Barton employees far
outnumbered the former Glencoe employees, that the offi-
cers of the Union, to insure their success in the then upcom-
ing union election, simply curried favor with Barton
employees, and sacrificed the former Glencoe employees, in
order to insure reelection. I find these factors to be insuffi-
cient to establish that the Union's action was motivated by
anamosity toward the former Glenco employees as such. To
me the remarks were no more than a way of expressing,
perhaps with less tact than might otherwise have been used,
that the "dovetailing" agreement produced results which
ing a seniority provision which provided in substance that a person who left
the employment of Ford to enter the military service would , upon return from
his service, be credited with seniority from the date of his initial employment,
while those who were first hired after their military service , would upon
completion of a satisfactory probationary period, be credited with seniority
for the total period of their military service plus the period of their employ-
ment by Ford. As the Supreme Court pointed out in fn . 7 of its opinion, the
provision resulted in some veterans who had no preservice employment with
Ford, having seniority over veterans who had such preservice employment.
The theory of the complaint in that case was-and Sixth Circuit so held (195
F.2d, 170)-that the seniority provision there involved constituted a breach
by the union of its duty of fair representation imposed by the National Labor
Relations Act. As above indicated , the Supreme Court reversed that holding.
9 Indeed , the General Counsel does not contend to the contrary.
10 Although this testimony is in dispute , I find it unnecessary to resolve the
conflict. For purposes of this Decision , I have assumed that all credibility
issues would be resolved in favor of the General Counsel.
they regarded as inequitable, and that they would seek
means to end that inequality." The claim that the Union
officials took the action they did to curry favor with the
majority of the employees in order to insure their reelection,
is nothing more than the fact of life that a candidate for
office cannot prevail unless he convinces a majority of the
electorate to support him. That the former Glencoe employ-
ees constituted a minority, was for them unfortunate, but it
does not amount to the anamosity necessary to establish
that the Union breached its duty of fair representation ow-
ing to those whom it represents. Keeley v. Refined Transport
& Terminal Corp., 71 LRRM 2627, 2631 [E. D. Mich. 1969].
Accordingly, I find and conclude that both complaints
herein should be dismissed in their entirety."
Upon the foregoing findings of fact, I state the following:
CONCLUSIONS OF LAW
1. Respondent Company is an employer within the
meaning of Section 2(2) of the Act, and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Union is the collective-bargaining repre-
sentative of Respondent Company's employees in an appro-
priate unit.
4. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent Union
breached its duty of fair representation owing to the afore-
said employees, or that it or Respondent Company engaged
in any unfair labor practice proscribed by the Act, as al-
leged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, I
issue the following recommended:
ORDER 13
The complaints herein are dismissed in their entirety.
11 The facts here are a far cry from those prevailing in Red Ball Motor
Freight, Inc., 140 NLRB 1237, 1234 , relied on by the General Counsel, where
the Board found a violation of Section 8(b)(l)(A), based on the fact that one
of the two unions competing for employee support in a Board -conducted
election, promised that it if prevailed in the election , the contract with the
employer would provide that its members would have seniority over the
members of the competing union . Accordingly , I find that the case inapposite
here.
12 1 have not overlooked the contention advanced by both the Respondent
Union and Respondent Company, that the Board should defer action in this
matter pending resolution of the issues under the grievance and arbitration
provisions of the contract , but I regard the contention as without merit. As
the contract provides that only the Union or the employer may invoke
arbitration, the suggestion that the fate of the employees involved be left in
the hands of either of those parties , which would put the party in the position
of processing a grievance against itself, has all the earmarks of the suggestion
that a fox be put in charge of the henhouse . See National Radio Company,
Inc., 198 NLRB No. 1; The Seng Company, 205 NLRB No. 36.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions, and order , and all objections thereto shall be deemed
waived for all purposes.