Beatrice Foods Co.

National Labor Relations Board - Board Decisions

Jun 27, 1968

172 N.L.R.B. 552 (N.L.R.B. 1968)

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams Corporation, Korn Kurls Division , a Division
of Beatrice Foods Company and Lillian Z. Pittner,
an Individual
General Drivers, Dairy Employees & Helpers Local
Union No . 579 affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America and Lillian
Z. Pittner , an Individual . Cases 30-CA-583 and
30-CB-141
JUNE 27, 1968
DECISION AND ORDER
By MEMBERS BROWN , JENKINS , AND ZAGORIA
On December 12, 1967, Trial Examiner John P.
von Rohr issued his Decision in the above -entitled
proceeding , finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative ac-
tion , as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed excep-
tions to the Trial Examiner 's Decision and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the
entire record in the case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent Company, Adams Cor-
poration, Korn Kurls Division, a Division of Bea-
trice Foods Company, Beloit, Wisconsin, its
officers, agents, successors, and assigns, and the
Respondent Union, General Drivers, Dairy Em-
ployees & Helpers Local Union No. 579 affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
' One version shows this as "floorlady."
its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
MEMBER ZAGORIA, dissenting:
The Charging Party, Lillian Z. Pittner , has been
employed by Respondent Employer since June 11,
1948. She worked on the production line until Oc-
tober 13, 1958, when she was assigned plant cleri-
cal work. Although she was not a supervisor within
the meaning of the Act, she was referred to as a
"forelady"' and worked in the same office as the
plant foreman.
Pittner did not participate in the Respondent
Union's organizational activitiesin 1965 and,
because she was told that as a forelady she was in-
eligible, Pittner did not vote in the election which
led to the Union's certification on December 17,
1965, as collective -bargaining representative of all
production and maintenance employees. Under
state law , a union-shop referendum was held on
February 15, 1966, at which time Pittner acted as
an observer for the Employer. The Union won the
referendum and executed a collective-bargaining
agreement with the Employer on June 6, 1966. The
agreement contained a 30-day union -shop clause. It
also provided for layoff on the basis of reverse
seniority and specified that those transferring back
into the unit from other work classifications would
lose their seniority except when retention of
seniority upon return within a given period was
agreed to between the Employer and the Union.
Pittner did not initially become a member of the
Union under the union-security clause and was not
asked to do so. Over 5 months later, on November
18, 1966, Pittner's clerical job was eliminated and
she returned to production line work. She became a
union member in January 1967. After her transfer
back to the production line, Pittner raised the
question of her seniority status and the matter was
discussed by the Employer and the Union. In
March 1967, Pittner complained to the Union's In-
ternational office about the lack of action regarding
her seniority. Thereafter, she met with both a union
and employer representative and was questioned
about her concerns respecting seniority. The Union
and Employer later resolved to set Pittner's seniori-
ty date at November 1, 1966, for layoff purposes
and at June 11, 1948, for vacation purposes. Pittner
also continued to earn her former wage rate, which
was higher than that of the other production em-
ployees in her department. She thereafter charged
Respondents with violation of Section 8(a)(3) and
( 1) and 8 (b)(1)(A) and (2) of the Act.
172 NLRB No. 56
ADAMS CORP., KORN KURLS DIVISION
The Trial Examiner's holding of violation, which
the majority here adopts , is based on the finding
that under the collective -bargaining agreement,
Pittner , as a member of the bargaining unit at all
times in question , had a contractual right to her
original seniority date and that Respondent Union
had no power to alter that seniority . The Trial Ex-
aminer further finds that Respondent Union's dis-
criminatory motive is revealed by Pittner 's account
of the tripartite interview respecting the seniority
question2 and the local Union 's letter to the Inter-
national explaining its action .3 I do not think that
the record supports these conclusions.
Seniority rights are solely a matter of contract. In
the absence of proven invidious motive , it is clear
that a collective -bargaining representative can
agree to distinguish among various categories of
employees within the bargaining unit for seniority
as well as for other purposes . Had the parties from
the beginning realized that Pittner was a plant cleri-
cal within the bargaining unit , it is clear that in the
absence of proven invidious motive the Union
could have agreed to place her in a separate
seniority category . The Union did agree in the con-
tract to separately deal, on an ad hoc basis , with the
problem of retention of seniority by employees
returning to the contract unit . As the Trial Ex-
aminer found , Pittner was technically within the
bargaining unit at all times in question . But bargain-
ing unit coverage and bargaining agreement
coverage need not be coextensive . Whether
because they thought Pittner was a supervisor or an
excluded clerical , none of the parties-neither the
Employer, the Union, nor Pittner-treated her as
coming within the terms of the collective -bargain-
ing agreement until she returned to the production
line. She acted as a management representative
after certification and neither joined nor was asked
to join the Union , despite the union-shop clause,
for over 5 months after the collective agreement
became effective . Both before and after the dispute
arose concerning Pittner 's seniority , the parties to
the labor-management contract construed their
agreement as not applicable to her during her em-
ployment as a clerical or "forelady." This Board
should not change that agreement by interpreting it
differently.
Nor do I think that the General Counsel has met
his burden of proving that the interpretation given
or the agreement made respecting Pittner 's seniori-
ty rights was unlawfully motivated . On its face, the
resolution seems equitable . Confronted with the
same problem under a collective -bargaining agree-
ment which did not provide for negotiated resolu-
tion of the senority rights of personnel returning to
553
the seniority group , one can readily envision an ar-
bitrator reaching the same result.
It is true that in interviewing Pittner regarding
the seniority question, Respondent Union's agent
noted her failure to join the Union, her failure to
vote in the election, and her role as observer at the
union-shop referendum. But each of these
questions, as well as others asked, was relevant to
demonstrating that everyone involved assumed that
Pittner was outside of the contract unit during her
employment as a clerical or "forelady." Therefore I
am not able to draw any invidious inferences from
Pittner's account of that interview.
It is also true that in its letter to the International
president of the Union, Respondent Local Union
made references to Pittner's failure to sign a "Union
Application," her participation as the Employer's
observer in the union-shop referendum, her
failure to become a union member until trans-
ferred, and the need to be fair to the people who
supported the Union and joined within the required
time . With the exception of the item last men-
tioned, the above comments respecting Pittner's in-
terview are equally applicable here. In contrast, the
Union's observation respecting the need to be fair
to the old members does allow an implication of
discriminatory motivation. Nevertheless, read in
context, this was a letter written by a local union
official to the International president for the pur-
pose of explaining that its disposition of a member's
complaint was reasonable and proper. In that con-
text, I do not think that these remarks are enough
to satisfy the General Counsel's burden of proof.
2 Set out in the Trial Examiner 's Decision
3 Ibid.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR , Trial Examiner: Upon
charges, duly filed, the General Counsel for the Na-
tional Labor Relations Board , by the Regional
Director for Region 30 (Milwaukee, Wisconsin), is-
sued a complaint on June 30, 1967, against Adams
Corporation, Korn Kurls Division , A Division of
Beatrice Foods Company, and against General
Drivers, Dairy Employees & Helpers Local Union
No. 579 affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Respondent
Company and the Respondent Union, respectively,
alleging that the Respondent Company has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called
the Act, and that the Respondent Union has en-
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in certain unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act.
The answer of each of the Respondents denies the
allegation of unlawful conduct alleged in the com-
plaint.
Pursuant to notice , a hearing was held before
Trial Examiner John P. von Rohr in Beloit, Wiscon-
sin, on August 22, 1967. All parties were
represented by counsel and were afforded opportu-
nity to adduce evidence , to examine and cross-ex-
amine witnesses , and to file briefs . Briefs have been
received from the General Counsel and the
Respondent Union and they have been carefully
considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company is a Wisconsin cor-
poration with its principal oce and plant located
at Beloit , Wisconsin, where it is engaged in the
manufacture of snack foods . During the 12 months
preceding the hearing herein , Respondent sold and
shipped products directly from its Beloit , Wiscon-
sin, plant to points and places outside of the State
of Wisconsin . During the same period it purchased
and received goods at its Beloit, Wisconsin, plant
valued in excess of $50,000 directly from points
outside the State of Wisconsin.
The Respondent concedes , and I find , that it is
engaged in commerce within the meaning of Sec-
tion 2(2) (2) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Dairy Employees & Helpers
Local No. 579 affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act by
causing the Company to discriminate against em-
ployee Lillian Z. Pittner in denying her her rightful
place on the seniority list by failing and refusing to
give her credit for her length of service with the
Company. As to the Respondent Company, the
complaint alleges that it discriminated against
Pittner in violation of Section 8(a)(1) and (3) of
the Act by changing her employment date, for
seniority purposes , to the date she joined the unit,
rather than the date she commenced employment
with the Company.
A. Pittner's Employment History
Lillian Z. Pittner started working for the Com-
pany as a packer in the production department on
June 11, 1948. After working approximately 2
months on this job she was made a machine opera-
tor and thereafter continued to work in this capaci-
ty until October 13, 1958. On the latter date Pittner
was made a forelady, with an accompanying change
in duties . While it is undisputed that her job as
forelady was in a nonsupervisory capacity, one of
the issues in this case is whether her status in this
position was that of a plant clerical employee or of
an office clerical employee. My determination of
this issue and the facts relative thereto are set forth
in a succeeding section.
After she had remained in her position as
forelady for approximately 8 years, this job was
abolished on November 18, 1966. On or about
November 28, 1966, Pittner was transferred to a
job on the wafer line in the production department
and she has continued in this position until the
present time.
B. The Advent of the Union
The Respondent 's plant operated in a nonunion
capacity until December 17, 1965, at which time,
following a Board-conducted election , the Respon-
dent Union was certified by the Board as the collec-
tive-bargaining agent of the Company's employees
in the following unit:
All production and maintenance employees,
including shipping and receiving employees,
drivers, and working foremen employed by the
employer at the plant located at 1126 Harvey
Street , Beloit, Wisconsin; excluding guards,
professional employees , technical employees,
office clerical employees and supervisors as
defined in the Act.
On February 15, 1966, the Union won an "all-
union agreement referendum " conducted by the
Wisconsin Employment Relations Board , thereby
entitling it to bargain for an "all-union agreement.
As will appear hereinafter , it is significant to note
that Pittner acted as the observer for the Company
at the election held on this date.
On June 6, 1966, the parties signed a collective-
bargaining agreement which contained a union-
shop provision requiring all employees in the bar-
gaining unit to become members not later than the
31st day following the beginning of their employ-
ment or the effective date of the contract,
whichever was the later.
C. Facts and Conclusions as to Pittner's Job Status
Between October 1958 and November 1966
Upon assuming the position of forelady in Oc-
tober 1958, Pittner continued to spend 5 hours per
day on the production floor, her work there consist-
ADAMS CORP., KORN KURLS DIVISION
ing chiefly of acting as relief operator for the
female employees who operated production
machinery. She spent the remaining 3 hours in the
production office of the plant foreman where she
engaged in inventory work. As the production work-
ers, she continued to punch a timeclock and was
paid on an hourly basis . Also like the production
workers, she continued to wear a white uniform
which was furnished by the Company. On Saturday
mornings she would come in to operate machines
and also to perform such menial tasks as scrubbing
tables and cleaning tape machines.
In 1963, due to a change in certain machinery
and also due to the fact that additional operators
had been hired, Pittner was advised that she was no
longer to go on the floor as a relief operator.
Thereafter, and continuing until the time her job
was abolished in November 1966, Pittner continued
to work on production inventories, in addition to
which she was given additional miscellaneous tasks
which, I find, were either directly related to
production work or involved activities related to
the accommodation of production employees. A
detailed description of such miscellaneous duties,
as set forth in a document prepared by Pittner and
received in evidence, is attached hereto as Appen-
dix A.'
Although continuing to work in the same office
with the plant foreman, Pittner credibly testified
that subsequent to 1963 she continued to spend ap-
proximately 3 hours in the performance of her du-
ties outside of the office, such time being spent on
the production floor, in the plant basement, or
going between Plant One and Plant Two, which are
located a block apart. Significantly, the office of
the plant foreman, a separate enclosure occupied
only by the foreman and Pittner, is located im-
mediately adjacent to the production floor and has
a window overlooking the production area. The
main office, which is occupied by billing clerks, the
purchasing agent, receptionist, and the general
manager, is adjacent to the foreman's office. This
office, also referred to as the downstairs office,2 is
not immediately adjacent to the production area
and can only be reached from the production area
through use of the office occupied by Pittner and
the foreman.
During the period of 1963-1966, Pittner con-
'As indicated hereinafter , Pittner engaged in various correspondence
with the Union and with the Company concerning the seniority problem at
issue herein . The document referred to above was enclosed with a letter by
Pittner dated November 22, 1956 , to William Karnes , an official of
Beatrice Foods Company.
2 Bookkeepers ( and apparently other clericals ) work in another branch
of the main office which is located in the upstairs of the plant.
s Florida Tile Industries , Inc., 130 NLRB 897, 899 ; Avco Corporation,
Electronics and Ordance Division , 131 NLRB 921, 924, Weyerhauser Com-
pany , 132 NLRB 84; Thiokol Chemical Corporation , 123 NLRB 888, 891.
' The cases cited in the preceding footnote are also illustrative of this
policy of the Board.
In September 1966 Pittner was moved from the foreman 's office to the
adjacent downstairs office and continued to work there until her job was
abolished in November . However , since this move was made only because
555
tinued to punch the timeclock and remained an
hourly paid employee. Unlike the clerical em-
ployees who worked in street clothes, Pittner, until
the time her job was abolished, continued to wear
the same white uniform which Respondent
furnished to its production employees.
In view of all the foregoing, I think it clear that
Pittner's work activities, interests, and working con-
ditions were closely alligned with those of the
production employees and I therefore find that she
essentially was a plant clerical employee rather
than an office employee during the period preced-
ing her transfer to the wafer line.' Therefore, and in
accordance with customary Board policy,' I find
that Pittner properly belonged within the produc-
tion and maintenance unit represented by the
Respondent Union, as certified by the Board.'
D. Facts Pertaining to Pittner's Loss of Seniority
As previously noted, Pittner's nonsupervisory job
of forelady was abolished on November 18, 1966.6
On the same date, Pittner was offered a job in the
bookkeepinf department in the upstairs branch of
Respondent s main office. Having no alternative,
Pittner accepted the job. However, upon ascertain-
ing that this position involved typing and some
knowledge of bookkeeping, neither of which
qualifications she possessed, she remained on this
job for only 2 hours. Pittner at this time took a brief
vacation, following which she was given a job on
the wafer line in the production department in
Plant Two, where she is presently employed.' Hav-
ing not theretofore joined the Union, Pittner
became a member of the Union in January 1967.
She has remained a member of the Union at all
times since.
Turning now to the seniority question, it is
preliminarily noted that Respondent maintained
and published a seniority roster, such being periodi-
cally brought up to date. A seniority roster dated
July 22, 1966, credited Pittner with a seniority date
of June 11, 1948, the date on which she was first
hired. A later seniority roster of February 1967,
also reflected Pittner's seniority date as June 11,
1948. However, the Respondent Company admits
that this date was subsequently crossed out and, by
typed insertion, was changed to reflect the date of
November 1, 1966.
construction work was being undertaken to create new offices for the plant
foreman and the production manager , I do not regard this temporary , albeit
final, move as having any bearing upon her job status. Suffice it to say that
during this brief period Pittner 's job duties remained the same and she con-
tinued to wear the white production uniform
"On November 22, 1966 , Pittner wrote a letter to Beatrice Foods,
Respondent 's parent company which is located in Chicago . In this letter
Pittner protested the abolishment of her job as forelady and also expressed
her concern that she might lose her seniority if transferred to work on the
line In this letter she enclosed a list of her job duties as forelady, attached
hereto as Appendix A.
I Pittner continued to receive her rate of $2.12 per hour , which was her
rate prior to her transfer to the wafer line. This rate was higher than that of
the other production employees in the department.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insofar as the record reveals , Pittner first became
concerned over her seniority status in September
1966. At this time one Darlene Simonds, a leadlady
in Plant Two , was transferred as leadlady to Plant
One where Pittner was working . Shortly after
Simonds' transfer , one of the employees on the
floor became ill. Although Pittner , as forelady,
customarily had been responsible for the handling
of such cases, at this time a question arose as to
whether she or Simonds should assume the respon-
sibility of taking care of employees who became ill
on the floor . Pittner credibly testified that she took
the matter up with Earl Wilson , the general
manager of the plant ,' and that Wilson at this time
advised her that such floor responsibilities would
thereafter be Simonds ' and that she was merely to
continue with her production office duties . Pittner
testified that at this time she asked Wilson about
her seniority status, but that he only stated, "we
would cross that bridge when we come to it."
No further mention was made of Pittner's seniori-
ty until the latter part of December 1967, which
was about 3 weeks after her transfer to the wafer
line. According to Pittner , on this occasion she en-
countered Wilson on the floor and asked "if he had
heard from the union as to whether I would get my
seniority ." Pittner said that Wilson again replied
that they would let the matter go for now, that they
would cross that bridge when they came to it.
Pittner testified that at about this time she also
raised the question of her seniority with John
Sisbach , the union steward , but that he also told
her to let the matter rest.
Not long after her conversations with Wilson and
Sisbach , Pittner made a telephone call to Leonard
Schoonover , a business agent and organizer for the
Respondent Union who was then servicing the
plant . Pittner queried Schoonover as to whether it
was fair that she had been placed on the production
line and then asked if she would lose her seniority.
Schoonover said that he would call her back. Fail-
ing to hear from him, Pittner again called
Schoonover . According to Pittner , " I asked him if
he had heard anything whether I'd lose my seniority
and if they had a right to do this , and he said yes,
they had the right to do it."
In the meantime , and during the months which
followed , a number of discussions took place
between representatives of the Respondent Com-
pany and the Respondent Union concerning the
matter of Pittner 's seniority.' In latter March 1967,
having received no final answer concerning the
question of her seniority, Pittner wrote a letter to
the Washington , D.C., office of the International
Brotherhood of Teamsters , apprising it of the situa-
tion and of her seniority problem . On March 31,
1967, the International Union transmitted this
'Wilson , also a vice president , first came with the Company in March
1966
letter to Wallace Federman , secretary-treasurer of
Local 579, and requested that he conduct an in-
vestigation of the matter . Federman delegated this
function to Business Representative Schoonover.
Schoonover , who had previously discussed the
question of Pittner 's seniority with Wilson , testified
that upon receipt of the International 's letter he
requested the Company to write a letter giving its
position on Pittner 's seniority . Wilson thereupon
sent Schoonover a letter , dated April 18, 1967,
which stated as follows:
Dear Mr . Schoonover:
This letter is to clarify our position concerning
Lillian Pittner 's past and present employment.
During the month of November , 1966, the
position which Lillian Pittner had at that time
was eliminated . Her duties at that time were
entirely of the clerical nature and she was not
doing any production work at that time. En-
closed is a list of duties which she outlined in a
letter which she sent to Mr . Karnes, the pres-
ident of Beatrice Foods , and I think as you
will note , her duties were, as stated previously,
primarily of the clerical nature . I frankly can-
not tell you what her official title was at that
time, but I do know that going back several
years, she was given the title of "floor lady"
and she was also actively engaged in produc-
tion work.
At the time her job was eliminated , we offered
her a position in our office staff but after two
hours in this position, she indicated she could
not do the work and would not be able to han-
dle her new job. Therefore, we offered her a
position in the plant, and as I stated to her at
that time , as far as the company was con-
cerned , she would maintain her present hourly
rate which, incidentally , is much higher than
we would normally pay for the position she
would have in the plant and we also would be
willing to maintain her seniority going back to
the original date she was hired, but it was also
pointed out to her that the decision concerning
the seniority and the hourly rate would be en-
tirely up to the union and that this was out of
our jurisdiction as the employer.
We hope the above information will help clari-
fy our position in regards to Lillian Pittner.
[/s/ Earl S. Wilson]
On or about April 20 , 1967, Pittner was sum-
moned into Wilson 's office for a discussion with
' General Manager Wilson testified that approximately 10 such discus-
sions were held between November 1966 and the middle of May 1967.
ADAMS CORP., KORN KURLS DIVISION
Wilson and Schoonover. Pittner, who impressed me
as a credible witness , gave the following account of
this conversation:10
When I got into Mr. Wilson 's office and I had
been ill , so Mr . Wilson asked me how I was
feeling now and I says , " Much better, thank
you." And he offered me a chair . Before I
could even get sat down in the chair, Mr.
Schoonover, he says, "Are you trying to bump
Darleen Simonds?" And I said , no, I wasn't try-
ing to bump Darleen Simonds.
And he says, why did I write to Washington,
then? He had a letter in his hand , what the
letter contained I don 't know but he had a
letter in his hand. And then he says, "Are you
trying to bump Darleen Simonds?" Again. And
I said, "No," I said, "I wouldn't bump her if
you paid me double the money now to take her
job."-
And he says, "Why [didn't]" you join the
Union?" And I said, "Because I was told by
three key men in the shop that I couldn't and
shouldn 't join the Union."
And then he says why didn't I come to him
with that question? And I says, "I never had
any dealings with the ... with a union before,"
and I didn't know that I could bring my
problems to him . And he says, well, I could
have.
. . . then he said, "Are you a salaried em-
ployee?" And I said no . He says, "How come
you was an observer for the Company, then, at
the election?" And I says, "I was asked to go
on that by Mr. Jensen."
And Mr. Schoonover, he says, "How could you
be an observer if you was salaried?" And I says
"I wasn 't salaried." And he said, "Well, they
don't allow people to sit in as an observer.
Only salaried people should be sitting in as an
observer. And he says, "You must have been
salaried."
And at that point Mr. Wilson says, "What does
that mean?" and Mr . Schoonover raised up his
hand like that and just shrugged his shoulders
and didn 't say anything.
Then he says , "I still say, you must have been
salaried ." And I says, "No , I was not salaried."
And he said, "Are you still trying to bump Dar-
leen?" And I said no.
10 Pittner 's narrative version of this conversation is set forth verbatim, ex-
cept that I have omitted an occasional question or colloquy which does not
affect the substance of this testimony In addition to crediting Pittner, it
may be noted that Pittner 's account of this conversation is uncontroverted.
557
And then he says, "Did you punch a
timecard?" And I said , "Yes." Then he said,
"Why are you fighting so hard for your seniori-
ty?" And I said , "Well, I had almost 19 years
in," and I said, "I didn't think that I should
stand a chance of losing it." And he says,
"Well, is that the only reason?"
And I says "No." And I says, "Do you want me
to tell you right in front of Mr. Wilson?" And
he says, "Well, it's all right." So I says then
that the people in the shop were going to ...
when the present contract was up, go for a 20-
year retirement plan. And I says, with my 19
years, I didn't want to lose it because I would
be on that list to retire then. He again asked
me if I was going to bump Darleen, and I said
no.
He asked me why I didn't vote in the election. I
said, I had three people tell me that I could not
vote for the Union, because I was a forelady.
And I said that I didn't, because I was told by
three people that I wasn't supposed to vote,
being a forelady. And he says, why didn't I
come and ask him whether I could vote or not.
Following the above meeting in Wilson's office,
Schoonover reported his interview with Pittner to
Wallace Federman. On April 24, 1967, Federman
wrote a letter to Frank E. Fitzsimmons, president of
the International, which stated as follows:
Dear Sir and Brother:
Mrs. Pittner was performing Clerical Work
at the time the Union organized this Plant.
Clerical Workers were excluded from the Unit
as provided for under the Act. She made no at-
tempt to sign a Union Application or request
that she be in the unit until the Employer later
eliminated her job.
This Employer made a practice of giving ti-
tles and merit increases to many of his Em-
ployees prior to the Plant going Union.
We have attached a copy of a letter from the
Plant Manager , a copy of the results of the
Union Shop Referendum, which shows that
Lillian Pittner did in fact, act as Observer for
the Employer, as late as February 15, 1966,
and signed the result sheet for the Employer.
Considering all the facts, we can only as-
sume Lillian Pittner was not in fact in the Bar-
gaining Unit at any time and made no effort to
become a Union Member until her Employer
eliminated her job.
We appreciate her desire to retain her
" Although this question is stated in the transcript as "why don't you join
the union," I am pursuaded that in fact this question was propounded as
"why didn 't you join the union." As previously indicated , Pittner joined the
Union in January 1967, some 3 months prior to the above conversation.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seniority with the Employer, but in all fairness
to the people who supported the Union and
joined within the required time, we have no
choice but to consider Lillian Pittner a new
Employee in the Bargaining Unit and place her
on the bottom of the Seniority List.
Of course, she retains, her rights for Vaca-
tions and other Fringe Benefits.
I hope this will clear this matter up for you.
If I can be of any further assistance , feel free to
contact me.
[/s/ Wallace R.Federman]
On May 2, 1967, pursuant to advice received
from Fitzsimons, Federman wrote Pittner, enclosing
a copy of his above April 24 letter to Fitzsimmons,
advising that "Mr. Schoonover will be in touch with
the Adams Corporation in the very near future to
see that the Seniority roster is correct in respect to
your position."
It is undisputed that also on May 2, 1967,
Schoonover sent a letter to Wilson which notified
him as follows:
Dear Sir:
This Union takes the position that Lillian
Pittner 's Seniority in the Bargaining Unit must
be the date she actually started work in the
Production Unit. We do not have the exact
date, but it should be in December of 1966.
If you are carrying this employee on the
Roster as of her original hiring date in 1948,
we suggest you indicate that the December,
1966 Date applies for the purpose of lay off
and the old date for vacation purposes.
If you have any further question on this
matter, please contact me.
[/s/ Wallace Federman]
About a week after receipt of the above letter,
Wilson called Pittner into his office and advised her
that she would not be able to retain her original
seniority date of June 11, 1948, because the Union
would not allow it. It is undisputed that at about
this time the Respondent Company changed Pitt-
ner's seniority date from June 11, 1948, to
November 11, 1966 (the date she started on the
wafer line), and that it has remained such ever
since.
E. Conclusions
As noted in the facts set forth in the preceding
section, it is undisputed that the Respondent Em-
ployer changed Pittner's seniority from June 11,
1948, to November 11, 1966, at the behest and in-
sistence of the Respondent Union. The Union's
defense to the allegation that it violated Section
8(b)(1)(A) and (2) of the Act by causing the Com-
pany to take this action is largely predicted upon
the followin, provision in the collective-bargaining
agreement:'
An employee who leaves the classification of
work covered by this Master Agreement, but
remains in the employ of the Company in some
other capacity, may retain seniority rights upon
return to the original unit providing that he
returns within a period of time agreed upon
between Local Management and the Local
Union . In the absence of such express agree-
ment, such employee shall lose all seniority
rights.
Pointing to the above provision, it is the Respon-
dent Union's contention that it was merely enforc-
ing this provision in the contract when it insisted
that Pittner's seniority date be changed to conform
to the date when she began working on the wafer
line. In finding no merit to this contention, the
short answer is that Respondent's argument is
based upon the erroneous premise that Pittner was
not within the bargaining unit of production and
maintenance employees at the time she started
work on the wafer line. As heretofore noted, and
contrary to the position of the Union, I have found
the evidence to establish that Pittner 's position
prior to her transfer to the wafer line was essen-
tially that of a plant clerical and that as such, in
accordance with traditional Board policy, she
properly was within the production and main-
tenance unit at all times material hereto . It must
therefore follow, and I find, that Respondent Union
had no contractual right to demand that Pittner's
seniority status, as previously reflected on the Com-
pany's seniority roster, be reduced in the manner
heretofore indicated. 13
The Union alternatively contends that even
though it may have acted erroneously, it still did
not engage in unfair labor practices because there
is no showing that its action was based on some
consideration related to Pittner 's union sympathies,
activities, or membership. I also reject this conten-
tion , since I am pursuaded that Respondent's action
indeed was predicated upon the fact that Pittner
did not lend her support to the Union during the
earlier stages of her employment , including the or-
ganizational campaign and the union-agreement
election. Thus, when Schoonover finally confronted
Pittner in Wilson's office on April 20, 1967, for the
alleged purpose of investigating the merits of her
" Section 29. C4 of the Master Agreement between Beatrice Foods
Company and the Union.
"The cases cited and relied upon by the Union in its brief, while cor-
rectly holding that a seniority provision of the type in the instant collective-
bargaining agreement is legally permissible, are otherwise factually distin-
guishable from the instant case and do not apply to the situation involved
herein
ADAMS CORP., KORN KURLS DIVISION 559
seniority claim , it is significant that the entire thrust
of his conversation did not entail a discussion of her
prior employment history or job status, but rather
dealt with matters pertaining to her union member-
ship and activity . As indicated in the conversation
heretofore set forth that such was his prime con-
cern is clearly manifested by his interrogation of
her as to why she had not joined the Union, why
she had not voted in the union shop election, and
why she had acted as company observer in that
election . I think it also curious that Schoonover dis-
played such a keen interest in ascertaining whether
Pittner sought to bump Darlene Simonds, a
question which he repeatedly brought up during the
course of the conversation . Significantly , Simonds
was an ardent supporter of the Union during its or-
ganizational campaign , had obtained authorization
cards for the Union, and had served as a member of
its negotiating committee. 14
If Schoonover's interview of Pittner of April 20 is
not enough , an even clearer manifestation of the
Union's true motive in resolving the Pittner seniori-
ty problem is reflected in Federman's April 24,
1967, letter to Frank Fitzsimmons of the Interna-
tional, previously set forth herein. Thus, failing in
the first instance to make any distinction between a
plant clerical and an office clerical employee, the
letter simply asserts that Pittner was performing of-
fice clerical work at the time the Union organized
the plant and that "clerical workers" are excluded
from the unit.'' The letter thereafter states that
"We can only assume Lilliam Pittner was not in
fact in the bargaining unit at any time ...."
Without citing any objective criteria to support this
conclusion , Federman 's letter stresses only such
matters as Pittner 's failure to sign a union applica-
tion and her failure to make an effort to become a
union member prior to the elimination of her
former ob. Significantly, particular emphasis is put
on the fact, as underlined in the letter , that Pittner
acted as observer for the employer as late as Februa-
ry 15, 1966. Finally, the letter concludes with the
statement that ". . . in all fairness to the people who
supported the Union and joined within the required
time , we have no choice but to consider Lillian
Pittner a new employee in the Bargaining Unit and
place her on the bottom of the seniority list." From
all of the foregoing , I think it clear that the import
of Federman 's letter reflects an attitude of critical
hostility toward Pittner because she, unlike the
majority of the other employees in the unit , did not
give her support to the Union during the various
stages of its organizational activities . Additionally,
due to the emphasis placed upon Pittner's role in
the February 15 election, I can but conclude that
the Union bore a certain resentment against this
employee because she acted as the company ob-
server in that election. Accordingly, and upon the
entire evidence in this case, I am convinced and
find that it was for these reasons that the Union
made its demand upon the Respondent Company to
reduce Pittner's seniority. I therefore find that by
such conduct the Respondent Union violated Sec-
tion 8 (b)(1)(A) and (2) of the Act.'s I further find
that by yielding to the will of the Union, the
Respondent Company violated Section 8(a)(3) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
Respondent's business operations described in sec-
tion I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among
the several States and such of them as have been
found to be unfair labor practices tend to lead to
labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Employer and
the Respondent Union have engaged in certain un-
fair labor practices, I will recommend that they
cease and desist therefrom, and take certain affirm-
ative action designed to effectuate the policies of
the Act.
It shall be recommended that (1) the Respondent
Union notify the Respondent Company, in writing,
with a copy to Lillian Z. Pittner, that the Union has
no objection to restoring the seniority date, to be
effective for all purposes, to June 11, 1948; and (2)
the Respondent Company restore Pittner's seniority
date, to be effective for all purposes, to June 11,
1948.
Upon the foregoing findings of fact and upon the
entire record in this case, I hereby make the follow-
ing:
CONCLUSIONS OF LAW
1. Adams Corporation, Korn Kurls Division, A
Division of Beatrice Foods Company , is an em-
" Schoonover conceded knowing that Simonds was a member of the or-
ganizing committee . While first denying that he received authorization
cards from Simonds , he later testified that he possibly did. That he in fact
did receive cards from this employee is revealed in his prehearing affidavit,
in which he stated " I received some union authorization cards from
Simonds and about six other girls from employees who had turned their
cards in to them for transfer to the Union ." In this affidavit he further
stated , " I know Simonds was active on behalf of the union before it was
certified "
" The unit description , in fact , specifically excludes "office clerical em-
ployees "
16 In view of my finding that the Union 's action in this case was essen-
tially taken as a measure of reprisal against Pittner because she had not
joined or supported the Union at an earlier stage, I do not deem it necessa-
ry to decide whether Miranda Fuel Company, Inc, 140 NLRB 181, cited by
the General Counsel, is applicable to the situation presented in the instant
case.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer within the meaning of Section 2(2) of the
Act.
2. Respondent Union is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By changing the seniority date and dis-
criminating in regard to the terms and conditions of
employment of Lillian Z . Pittner, thereby encourag-
ing membership in Respondent Union, Respondent
Company has engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By causing the Respondent Company to
change the seniority date of Lillian Z. Pittner and
to discriminate against Pittner in violation of Sec-
tion 8(a)(3) of the Act, the Respondent Union has
engaged in , and is engaging in, unfair labor prac-
tices within the meaning of Section 8(b)(2) and
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law , and upon the entire record
in this case , I recommend that:
A. Adams Corporation, Korn Kurls Division, A
Division of Beatrice Foods Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in General
Drivers, Dairy Employees & Helpers Local Union
No. 579 affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, or in any other labor organization
of its employees, by changing the seniority dates of
its employees , or in any other manner discriminat-
ing against any employee in regard to hire or tenure
of employment or any term or condition of employ-
ment, except as authorized by Section 8(a)(3) of
the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(b) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be af-
fected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Restore Lillian Z. Pittner's seniority date on
its seniority roster, to be effective for all purposes,
to June 11, 1948.
(b) Post at its Beloit, Wisconsin, premises, co-
pies of the attached notice marked "Appendix B,"17
and, as soon as forwarded by the Regional Director,
"Appendix C." Copies of said notices, on forms
provided by the Regional Director for Region 30,
after being duly signed by the Respondent Em-
ployer's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 30,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith."'
B. Respondent General Drivers, Dairy Em-
ployees & Helpers Local Union No. 579 affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
its officers , representatives , and agents , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Respondent
Company to discriminate against Lillian Z. Pittner,
or other employees, in violation of Section 8(a)(3)
of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed 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, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Respondent Company, with a copy to
Lillian Z. Pittner, in writing, that it has no objection
to, and will not oppose, the Respondent Company's
restoring Lillian Z . Pittner 's seniority date to cor-
respond to the date of her initial hire, i.e., June 11,
1948.
(b) Post at all of its offices, copies of the at-
tached notice marked "Appendix C."19 Copies of
said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by
the Respondent Union's authorized representative,
shall be posted immediately upon receipt thereof,
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words " a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
11 See fn . 17, supra
ADAMS CORP., KORN KURLS DIVISION 561
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or
covered by any other material.
(c) Forward copies of Appendix C to the Re-
gional Director for posting by the Employer at its
place of business.
(d) Notify the Regional Director for Region 30,
in writing , within 20 days from the receipt of this
Decision! ' what steps have been taken to comply
herewith.20
20 See fn . 18, supra
APPENDIX A
Date: November 1966
Subject: Duties of Lillian Pittner
1. Keep inventory on gloves, hats, tapes,
stickgun, inks, stencil board etc.
2. Keep inventory on uniforms and order
same.
3. Issue uniforms to new employee.
4. Keep index card on employees uniforms. Is-
sued and returned. Send soiled uniforms to
laundry.
5. Take care of modess machine filling and
reordering.
6. Make a production sheet for the day.
Enter morning inventory on production sheet.
Enter orders received daily.
Enter production made in day.
Deduct orders from morning inventory and
production of day to get starting inventory for
following day.
Put orders , production, and orders shipped out
in ledger book, at end of week total and
itemize same and take figure sheet to Mr. Wil-
son, Mr. Billott, Mr. Jensen Mr. Adams Mr.
Aughey and Steve Schaffer.
7. Take Absenteeism through out all shops.
8. Take care of some insurance matters
9. Take care of product sales for the girls.
10. Separate time cards and distribute to dif-
ferent departments
11. Keep up personnell file cards of new em-
ployees.
Date hired Phone number and who to notify in
case of accident etc.
When they quit, are layed off I send notice to
payroll right away.
If the employee is injured I know who to notify
12. Make time cards for employee that payroll
girl has not made up.
13. Make timecard numbers for new employee
and send to payroll and put new number in
time clock rack.
14. Keep the amount of time the girls work on
different snack foods, that pay roll clerk can
charge to different costs, such as Snack chips,
Cornchips, Kornkurls and all the other
products that the company makes
15. take care of all gripes from canteen
machines. When employees lose money I get it
back for them. when canteen is of order I have
it fixed. Alot of the employees depend on this
machine for their dinner.
16. Write Vacation slips for employee and
take to payroll., Keep record of vacation days
for each employee.
17. Sort and distribute checks to each depart-
ment. Pass out checks to plant one employees
18. Answer switchboard at 6:00 A:M for em-
ployees calling in sick or has other excuses. Or-
ders some time come in before the order clerk
arrives and I also take these orders.
19. Keep seniority list so if there is a layoff
they go by that and if a full crew isn't needed
they take the top girls to work. I usually do all
the notifing of girls. If there is no production
for the night girls and they have not been told
the night before not to come I call them and
tell them
20. Issue first aid to employees. If injury is real
bad I issue an order on the Dr. and take em-
ployee to hospital. When I get Back to shop I
make Out accident report and send to Safety
and claims and the other channels. I also han-
dle all compensation checks. I disinfect the
medicine chest periodically and restock sup-
plies
21. Turn cash sales in to billing clerk at end of
month
22. Listen to personell problems of Employees
and if they need the attention of the foreman, I
see that it is taken to him
There is probably more duties that I do but I
think this is a good start
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT encourage membership in
General Drivers, Dairy Employees & Helpers
Local Union No. 579 affiliated with the Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
or in any other labor organization, by changing
the seniority dates of our employees or in any
other manner discriminating against any em-
ployee in regard to hire or tenure or employ-
ment or any term or condition of employment,
except as authorized by Section 8(a)(3) of the
Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
354-128 O-LT - 73 - pt. 1 - 37
562 DECISIONS OF NATIONAL
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our em-
ployees in the exercise of the right guaranteed
in Section 7 of the Act, except in conformity
with the provisions of Section 8(a)(3) of the
Act.
WE WILL restore to Lillian Z. Pittner her
rightful place on our seniority roster. Her
rightful seniority date, to be effective for all
purposes , is June 11 , 1948, the date when she
commenced working for this Company.
All our employees are free to become or remain,
or to refrain from becoming or remaining , members
of the above-named union or any other labor or-
ganization , except to the extent that this right may
be affected by an agreement in conformity with
Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act
of 1959.
ADAMS CORPORATION,
KORN KURLS DIVISION, A
DIVISION OF BEATRICE
FOODS COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, Second Floor Commerce Building, 744
North Fourth Street, Milwaukee , Wisconsin 53203,
Telephone 272-3879.
APPENDIX C
NOTICE TO ALL MEMBERS OF GENERAL DRIVERS,
DAIRY EMPLOYEES & HELPERS LOCAL UNION No.
579 AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify you that:
LABOR RELATIONS BOARD
WE WILL NOT cause or attempt to cause
Adams Corporation, Korn Kurls Division, A
Division of Beatrice Foods Company, to dis-
criminate against Lillian Z. Pittner or other
employees in violation of Section 8(a)(3) of
the Act, as modified by the Labor- Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL notify Adams Corporation, Korn
Kurls Division, A Division of Beatrice Foods
Company, and Lillian Z. Pittner , in writing,
that we have no objection to and will not inter-
fere with the restoration of Lillian Z. Pittner to
her rightful place on the Company's seniority
roster. Her rightful seniority date, to be effec-
tive for all purposes, is June 11, 1948, the day
on which she commenced her job with the
above-named Company.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act, ex-
cept to the extent that such rights may be af-
fected by an agreement requiring membership
in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
GENERAL DRIVERS, DAIRY
EMPLOYEES & HELPERS
LOCAL UNION No. 579
AFFILIATED WITH THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Second Floor Commerce Building, 744
North Fourth Street, Milwaukee, Wisconsin 53203,
Telephone 272-3879.