Dairylea Cooperative Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1975

219 N.L.R.B. 656 (N.L.R.B. 1975)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dairylea Cooperative Inc. and Richard W. Rosen and
Milk Drivers & Dairy Employees , Local 338, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Party to
the Contract.
Milk Drivers & Dairy Employees , Local 338, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Rich-
ard W . Rosen . Cases 2-CA-12850 and 2-CB-5271
July 29, 1975
DECISION AND ORDER
further hearing with respect to certain specified mat-
ters and for further consideration and issuance of a
decision by Administrative Law Judge Goerlich.
However, by order dated January 16, 1975, the case
was returned to the Board upon the basis of a further
stipulation and agreement of the parties waiving con-
sideration by the Administrative Law Judge. There-
after, the General Counsel and Respondent Union
filed additional briefs with the Board.
The Board has considered the entire record in this
case, including the parties' briefs, and makes the fol-
lowing findings and conclusions:
Upon charges filed on January 9, 1973,' by Rich-
ard W. Rosen, an individual, the Regional Director
for Region 2 of the National Labor Relations Board,
acting on behalf of the General Counsel of the
Board, issued a consolidated complaint on Septem-
ber 19, 1973, amended on September 26, alleging,
inter aka, that the Respondent Company, Dairylea
Cooperative Inc., violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (29
U.S.C. Sec. 151, et seq.), and the Respondent Union,
Milk Drivers & Dairy Employees, Local 338, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, violated
Section 8(b)(2) and (1)(A) of the Act.2 The Respon-
dents filed answers to the complaint in which they
admitted certain allegations of the complaint and de-
nied others, including all those charging them with
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Ad-
ministrative Law Judge Lowell Goerlich on Novem-
ber 26 and 27, 1973, and on February 21, 1974. At
the hearing certain exhibits were placed in evidence,
but no witnesses testified.
However, the General Counsel and Respondents
entered into a stipulation, placed into evidence as an
exhibit, in which they agreed to certain amendments
to the complaint and to Respondents' answers, and
in which they agreed upon certain facts relevant to
the issues in this proceeding. They also waived, by
way of a record stipulation, findings of fact, conclu-
sions of law, and issuance of a decision by the Ad-
ministrative Law Judge, and agreed to submit the
case directly to the Board. By order dated March 22,
1974, this proceeding was transferred to the Board.
Thereafter, the General Counsel and Respondent
Union filed briefs with the Board. By order dated
August 30, 1974, the Board remanded the case for
1 An amended charge was filed in Case 2 -CB-5271 on September 11,
1973
2 The Parties in Interest are listed in Appendix A attached hereto have recognized the Union as representing units of
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY AND PARTIES
IN INTEREST
The Respondent Company has been at times ma-
terial a-corporation organized under the laws of the
State of New York engaged, inter alia, in the sale and
distribution of milk with places of business at various
locations in that State and in the States of New Jer-
sey and Pennsylvania. During recent annual periods
typical of its business, the Company has grossed an-
nual revenues in excess of $500,000 in the State of
New York, of which in excess of $50,000 was re-
ceived from customers located outside the State. Also
during such period, it purchased goods and materials
valued in excess of $50,000, directly from firms locat-
ed outside the State of New York, which were fur-
nished to the Company within that State. According-
ly, we find that the Respondent Company is engaged
in commerce within the meaning of Section (2), (6),
and (7) of the Act and that it will effectuate the poli-
cies of the Act to assert jurisdiction in this proceed-
ing.
The Parties in Interest, like Respondent Company,
are engaged at various locations in the State of New
York in the sale and distribution of milk and related
products. The record shows that each of the Parties
in Interest is engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies
of the Act to assert jurisdiction with respect to their
operations.
11. THE LABOR ORGANIZATION
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent Company and Parties in Interest
219 NLRB No. 107
DAIRYLEA COOPERATIVE, INC.
essentially all their milk processing and distribution
employees and have entered into collective-bargain-
ing agreements covering such units of their employ-
ees.' These agreements provide in part that union
stewards be selected by the Union and that each
steward must be an employee of the location at
which he is a steward. The contracts further provide
that:
The steward shall be considered the Senior em-
ployee in the craft in which he is employed . . . .
It is in effect conceded by the Union that this clause
gives the steward, regardless of his length of service,
top seniority not only with respect to layoff and re-
call, but also with respect to all contractual benefits
where seniority is a consideration. Thus, under these
contracts the steward is, among other things, given
preference in the assignment of overtime, in the se-
lection of vacation period, and in the assignment of
driver routes and other positions, with the preference
extending to the selection of shift, hours, and day off.
On or about December 13, 1972, Howard Rosen-
grandt, a route driver, was appointed a steward at
Respondent Company's Nanuet, New York, facility
which has, since around 1954, been covered by the
Union's metropolitan area bargaining agreement. On
December 27, Respondent Company posted at the
Nanuet facility a notice of bid for wholesale route 10.
Seven bids were submitted, including those of Rosen-
grandt and Peter J. Daniels. Rosengrandt was award-
ed the route; however, it is agreed that, but for
Rosengrandt's super seniority as a steward, the route
would have gone to Daniels, who was senior in
length of employment. During the following 9-month
period, Rosengrandt received an income of approxi-
mately $14,000 from his new route; Daniels received
about $12,000 from his old route;4 while the other
bidders all received even less on their routes.
The complaint alleges that Respondent Union, by
maintaining and enforcing the steward's super se-
niority clauses in its contracts with the Parties in In-
terest, violated Section 8(b)(1)(A) and (2) of the Act.
It further alleges that the Respondent Company and
Respondent Union, by maintaining and enforcing
such clause and by applying it in awarding Rosen-
3 There are seven bargaining agreements with the Respondent Union in-
volved in this proceeding They are listed with their signatories in the at-
tached Appendix B
4 The evidence does not specify that Rosengrandt's advantage resulted
from the fact route 10 was inherently more lucrative than Daniels ' old route
But, as Daniels was the more senior employee and as there is no evidence he
was less competent than Rosengrandt , such an explanation for
Rosengrandt's income advantage would seem the most plausible one How-
ever , our decision in this proceeding turns on the seniority preference ac-
corded union stewards in seeking certain employment benefits and not on
whether such benefits once acquired can necessarily be described in some
objective sense as superior to the benefits the steward had but for his senior-
ity preference.
657
grandt route 10, violated, respectively, Section 8(a)(1)
and (3) and 8(b)(1)(A) and (2) of the Act. In support
of these claims, the General Counsel contends that,
as the broad super seniority clause reserves top se-
niority for stewards whom the Union appoints, it
thereby unlawfully encourages union activism and
discriminates with respect to on-the-job benefits,
against employees who in the exercise of their rights
under Section 7 of the Act prefer to refrain from such
activity. The Union claims, however, that as seniority
is a matter of contract-and here ratified by unit em-
ployees-there can be no violation irrespective of the
purpose to be served by the seniority provision. It
also contends there is no basis for finding the alleged
violations "in the absence of a showing of union mo-
tive for the purpose of encouraging or discouraging
union membership."
We agree with the position taken by the General
Counsel. The clause here in question gives union
stewards, only because they are union stewards, pref-
erence in securing a rather wide range of on-the-job
benefits. This fact is not in dispute. Further, there is
nothing a unit employee can do, apart from being
selected a steward, to acquire such preference for
himself. Hfjs actual seniority on the job avails him
nothing against the steward's super seniority. Conse-
quently, as the General Counsel argues, viewed real-
istically the only way a unit employee can gain such
preference to on-the-job benefits is to be a good, en-
thusiastic unionist and thereby through such actions
recommend himself to the union hierarchy for ap-
pointment to the office of steward. But our dissenting
colleague claims that this conclusion is based on the
unwarranted, unsupported assumption that the
Union rewards "good" members by making them
stewards and ignores merit and ability in selecting
stewards upon whom, he points out, the Union's
"own continued well being and future vitality de-
pend." Of course, we make no assumption that the
Union would appoint stewards without regard to
their capability to do the job, and there is nothing in
what we have said to suggest that we do. Also, the
argument of the dissent seems to imply the obvious
non sequitur that being an enthusiastic unionist is
somehow incompatible with having the merit and
ability to carry out successfully the job of steward. If
we have made an unstated assumption it is that the
Union will select persons for steward who have the
ability to perform the job effectively. But we add that
the ability to perform effectively must include not
only the technical capability, for example, to process
a grievance but also a belief in and support for union
policy and goals. Certainly in an area where "its own
continued well being and future vitality" are at stake
the Union will not turn for help to employees unin-
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terested in its success , much less to those who are
opposed to it. Consequently, if we are to deal with
the real world of real-and we can add rational-
union officers it is obvious that an employee must be
a committed unionist if he is to have a chance to
acquire the broad benefit preference provided by the
super seniority clause. For him to refrain from union
activities-as of course he has a right to do under the
Act-would be to exclude himself from ever obtain-
ing such preference. Furthermore, even if we were to
concede-which we do not-that union activities
play no part in the Union' s selection of its stewards,
they indisputably do play a decisive part in access to
benefits under the clause. Thus, as in the situation
here before us, an employee can be denied by his
employer a job benefit he is otherwise fully entitled
to solely on the ground he is not the union steward;
while another employee receives that benefit he
otherwise would not obtain solely because he is the
union steward. Thus, even accepting the dissent's ar-
gument, participating in union activities-i.e., acting
as a steward, an activity even employees with merit
and ability are free to forego under Section 7-is a
necessary precondition to obtaining the benefit pref-
erence of the disputed clause. Consequently, there
can be no question but that the super seniority clause
ties job rights and benefits to union activities, a de-
pendent relationship essentially at odds with the poli-
cy of the Act, which is to insulate the one from the
other.'
In reaching the above conclusion, we are aware
that it is well established that steward super seniority
limited to layoff and recall is proper even though it,
too, can be described as tying to some extent an on-
the-job benefit to union status. The lawfulness of
such restricted super seniority is, however, based on
the ground that it furthers the effective administra-
tion of bargaining agreements on the plant level by
encouraging the continued presence of the steward
on the job. It thereby not only serves a legitimate
statutory purpose but also redounds in its effects to
the benefit of all unit employees.' Thus, super senior-
ity for layoff and recall has a proper aim and such
discrimination as it may create is simply an inciden-
tal side effect of a more general benefit accorded all
employees. It has not, however, been established in
this case or elsewhere that super seniority going be-
yond layoff and recall serves any aim other than the
5 See Radio Officers' Union of the Commercial Telegraphers Union, AFL
[A H Bull Steamship Co I v N L R B, 347 U S 17 (1954), also Scofield v
NLRB , 394 U S 423 (1969)
6 See Aeronautical Industrial District Lodge 727 v Campbell et al, 337 U S
521 (1949) Though that case did not involve the National Labor Relations
Act, the relevance of the Court's reasoning therein to proceedings under the
Act has been recognized by this Board See , e g, Bethlehem Steel Co (Ship-
building Division), 136 NLRB 1500, 1503 (1962)
impermissible one of giving union stewards special
economic or other on-the-job benefits solely because
of their position in the Union. That is not to say, of
course, that proper justification may not be forth-
coming in some future case involving particular cir-
cumstances calling for steward super seniority with
respect to terms and conditions of employment other
than layoff and recall. Consequently, there is no oc-
casion here for finding super seniority-even that
going beyond layoff and recall-to be per se unlaw-
ful. The issue ultimately is one of justification. How-
ever, in view of the inherent tendency of super se-
niority clauses to discriminate against employees for
union-related reasons, and thereby to restrain and
coerce employees with respect to the exercise of their
rights protected by Section 7 of the Act, we do find
that super seniority clauses which are not on their
face limited to layoff and recall are presumptively
unlawful, and that the burden of rebutting that pre-
sumption (i.e., establishing justification) rests on the
shoulders of the party asserting their legality.
Our dissenting colleague contends, however, that it
is "clearly lawful" for an employer and a union "to
recognize or encourage service as a steward" and "to
achieve that result by means of a seniority system."
He refers to the Campbell case, cited above, to sup-
port his position.' What we believe the dissent is say-
ing here 8 is that an employer and a recognized union
can encourage service as a steward through use of the
seniority system. This we categorically deny and
there is nothing in the Campbell decision, including
the passage quoted in the dissent, to support such a
conclusion.
Campbell was not concerned with the affirmative
use of a seniority system for any purpose whatsoever,
much less the specific one of encouraging employees
to be union stewards. Rather Campbell was con-
cerned with an exception to the seniority rule, an ex-
ception which could be created only through a labor-
management agreement and which was found proper
not because it is permissible for management and la-
7 The dissent also refers to Ford Motor Co v Huffman, 345 U S 330
(1953) In that case the union had negotiated a seniority clause that counted
time in military service towards on-the-job seniority The Court found the
clause lawful against claims that it improperly discriminated against nonvet-
erans and amounted to a lack of fair representation with respect to them In
its decision the Court pointed out that a union does have wide discretion in
negotiating seniority provisions to meet various contingencies But neither
in the examples of various permissible clauses or elsewhere does the Court
suggest that a seniority clause can properly discriminate on the basis of
union membership, office , or activity and no issue involving such discrimi-
nation was before the Court Huffman is not, therefore , relevant to the issues
before us
8 We are a bit puzzled by the use of "recognize" in the foregoing context
Surely an employer can "recognize" union stewards , but we really never
thought about a union 's recognizing its own stewards Yet we can agree that
it is lawful for a union to do so However, no one is concerned here about
recognition of union stewards We are also a bit puzzled by the use of "that
result" because it is really not clear what result "that result" refers to
DAIRYLEA COOPERATIVE, INC. 659
bor to encourage employees to be stewards but be-
cause , as we pointed out above, the exception by
keeping stewards on the job worked to the benefit of
all unit employees and furthered-in our context
here-the collective-bargaining policies of the Act.
In other words, Campbell sanctioned a certain privi-
lege granted stewards because it was necessary for
the proper carrying out of their responsibilities, as
stewards, which in turn were necessary in the appli-
cation of agreements arrived at by collective bargain-
ing. But there is not one word in Campbell about the
legitimacy under any circumstances of giving stew-
ards job benefits denied other employees for the pur-
pose of encouraging employees to become and re-
main stewards.
We have no doubt but that stewards serve a useful
purpose, but we would not describe their work as a
"public service" as does the dissent. We recognize
that the inconvenience and other disadvantages of
being a steward may very well in some situations dis-
courage employees from accepting the position, mak-
ing it more difficult for a union to carry out its col-
lective-bargaining responsibilities. Even so, it
nevertheless remains the union's task to build and
maintain its own organization, and where the imme-
diate problem is simply a matter of encouraging em-
ployees to be stewards a union can alone handle the
situation simply by paying employees or by giving
them other nonjob benefits for work in such a capac-
ity. But there is no necessity or justification in such
circumstances for a labor-management agreement re-
quiring that rank-and-file employees, whether or not
they support the union, subsidize its stewards by sur-
rendering to them certain job benefits or privileges in
return for the steward's union activity.
In any event, there is nothing in the dissent to
cause us to depart from our conclusions above that
the disputed clause is presumptively unlawful and
the burden is on the Union to rebut the presumption.
However, the Union has not alleged, much less es-
tablished, any justification for the broad reach of the
super seniority clause in its various contracts with the
Parties in Interest and the Respondent Company. In
fact, as indicated above, Respondent Union claims
(erroneously we find) that, seniority being a matter
of contract, it needs no justification .9 For reasons set
forth previously, we disagree. Because seniority af-
fects conditions of employment there can be no real
question but that it must conform to the require-
9 The purpose of the remand of this case mentioned above was , inter aha,
to accord Respondent Union or any of the other parties a full opportunity
to establish a proper justification for the super seniority clauses here under
attack . Respondent Union made no attempt whatsoever to produce such
justification but simply reiterated the position it had initially taken that no
justification is necessary . Respondent Company and the Parties in Interest
have taken no position on the legality of the clause.
ments of the Act 10 -irrespective of its source in any
agreement and even irrespective of the consent of
those adversely affected. Consequently, we find that
Respondent Union by maintaining and enforcing the
steward super seniority clauses here in question has
violated Section 8(b)(1)(A) and (2) of the Act, and
that Respondent Company by maintaining and en-
forcing such clause in its contract with said Union
has violated Section 8(a)(1) and (3) of the Act. Fur-
thermore, by according Steward Rosengrandt super
seniority under the disputed clause with respect to
the December 27, 1972, bidding for driver route 10
and thereby awarding that route to Rosengrandt
rather than Peter J. Daniels, who would have been
awarded the route but for Rosengrandt's super se-
niority, Respondent Dairylea discriminated against
Daniels and other employees in violation of Section
8(a)(3) and (1) of the Act, and Respondent Union
thereby violated Section 8(b)(2) and (1)(A).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth above
and occurring in connection with Respondent
Company's operations and those of the Parties in In-
terest have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the sever-
al States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, we shall order that
they cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of
the Act.
We have found that the steward super seniority
clauses here in dispute are unlawful and we shall
therefore order that Respondent Union cease and
desist from maintaining and enforcing such clauses
in its bargaining agreement with Respondent Com-
10 See United Steelworkers of America, and its Local 1070, AFL-CIO (Co-
lumbia Steel & Shafting Company), 171 NLRB 945, 946 (1968). We also find
no merit in Respondent Union 's argument that the clause cannot be found
unlawful unless it is shown that the motive behind the clause was to encour-
age or discourage union membership . The argument suffers on several ac-
counts. First , the discrimination proscribed by the Act is not limited to
encouraging or discouraging union membership . Second , the forbidden mo-
tive or intent can properly be based , contrary also to a statement in the
dissent , on the inherently discriminatory nature of the conduct-i.e , here
the clause-in question where no legitimate purpose appears See Radio
Officers' Union, supra at 41-42, 45, also N L.R.B. v. Erie Resistor Corp., 373
U S. 221, 227-229 (1963) Third, as explained above , the clause also involves
illegal restraint and coercion, a basis of illegality wholly separate from the
issue of discrimination.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany and in its agreements with the Parties in Inter-
est. We shall also order that Respondent Company
cease and desist from maintaining and enforcing
such clause in its bargaining agreement with Respon-
dent Union. We have also found that the unlawful
super seniority clause was so applied as to deny Peter
J. Daniels, on or about January 10, 1973, being
awarded at Respondent Company's Nanuet estab-
lishment driver route 10 which he would have been
awarded but for the illegal discrimination depriving
him of top seniority. Consequently, we shall order
that the Respondents jointly and severally make
Daniel's whole for any loss of earnings he may have
sustained as a result of the discrimination against
him. Backpay shall be computed in the manner es-
tablished by the Board in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest as provided in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Also, in order to remedy fully the effects of the Re-
spondents' unlawful conduct, we shall order that Re-
spondent Company assign Daniels, if he so desires it,
the driver route he would now hold but for the un-
lawful granting of super seniority to union stewards,
and that Respondent Union notify in writing both
Respondent Company and Peter J. Daniels that it
has no objection to assigning Daniels such route. Re-
spondent Company's backpay obligation shall run
from the effective date of the discrimination against
Daniels to the time it makes such offer of a new
route, while Respondent Union's obligation shall run
from such effective date to the date of its notification
to Respondent Company that it has no objection to
such assignment to Daniels. Finally, we shall order
that Respondent Company cease and desist in any
like or related manner from interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed by Section 7 of the Act, and that Respon-
dent Union likewise cease and desist from restraining
or coercing employees it represents exercising those
same rights.
CONCLUSIONS OF LAW
1. Dairylea Cooperative Inc. and the Parties in In-
terest are engaged in commerce within the meaning
of Section 2(6) of the Act.
2. Respondent Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. By maintaining and enforcing a seniority clause
in its collective-bargaining agreements with the Par-
ties in Interest according union stewards super se-
niority for terms and conditions of employment not
limited to layoff and recall, Respondent Union has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of
the Act.
4. By maintaining and enforcing a seniority clause
in their collective-bargaining agreement according
union stewards super seniority for terms and condi-
tions of employment not limited to layoff and recall,
Respondent Company and Respondent Union have
engaged in, and are engaging in, unfair labor practic-
es within the meaning of Section 8(a)(1) and (3) and
8(b)(1)(A) and (2) of the Act, respectively, and by
discriminating against Peter J. Daniels in assigning
super seniority to Union Steward Rosengrandt with
respect to the award of driver route 10, the Respon-
dents engaged in further violations of the foregoing
section of the Act.
5. The foregoing unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent Company, Dairylea Cooperative
Inc., Nanuet, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining and enforcing collective-bargain-
ing provisions with Respondent Union, Milk Drivers
& Dairy Employees, Local 338, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, according union stewards
super seniority with respect to terms and conditions
of employment other than layoff and recall.
(b) Discriminating against Peter J. Daniels or any
other employee in assigning driver routes or any
other term and condition of employment other than
layoff and recall by according top seniority to union
stewards in the assignment of such terms and condi-
tions of employment where union stewards do not in
fact have top seniority in terms of length of employ-
ment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights protected by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Jointly and severally with Respondent Union
make Peter J. Daniels whole for any loss of earnings
he may have suffered as a result of the discrimination
against him, such earnings to be determined in the
manner set forth in the section of the Decision enti-
tled "The Remedy," and offer Peter J. Daniels the
driver route he would now have but for the unlawful
assignment of super seniority to union stewards.
DAIRYLEA COOPERATIVE, INC.
(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 and the route assignment due under the
terms of this Order.
(c) Post at its establishment at Nanuet, New York,
copies of the attached notices marked "Appendix C"
and "Appendix D." 11 Copies of said notices, on
forms provided by the Regional Director for Region
2, after being duly signed respectively by Respondent
Company's and Respondent Union's representatives,
shall be posted by the Respondent Company imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent Company to ensure that such
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
B. Respondent Union, Milk Drivers & Dairy Em-
ployees, Local 338, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving ef-
fect to those clauses in its collective-bargaining
agreements with Respondent Company, Dairylea
Cooperative Inc. and the Parties in Interest named in
Appendix A according union stewards super senior-
ity with respect to terms and conditions of employ-
ment other than layoff and recall.
(b) Causing or attempting to cause Respondent
Company and the aforesaid Parties in Interest to dis-
criminate against employees in violation of Section
8(a)(3) of the Act.
(c) In any like or related manner restraining or
coercing the employees of Respondent Company and
of said Parties in Interest in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Jointly and severally with Respondent Compa-
ny make Peter J. Daniels whole for any loss of earn-
11 In the event that this 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
661
ings he may have suffered by reason of the discrimi-
nation against him, such lost earnings to be de-
termined in the manner set forth in the section of the
Decision entitled "The Remedy."
(b) Notify Respondent Company and Peter J.
Daniels in writing that it has no objection to award-
ing Peter J. Daniels the driver route he would now
have but for the unlawful assignment of super senior-
ity to union stewards.
(c) Post at its office and meeting halls used by or
frequented by its members and employees it repre-
sents at Respondent Company's Nanuet facility cop-
ies of the attached notices marked "Appendix C"
and "Appendix D." 12 Copies of said notices, on
forms provided by the Regional Director for Region
2, shall be posted by Respondent Union after being
duly signed by Respondent Company's and Respon-
dent Union's representatives, respectively, immedi-
ately upon receipt thereof. Post also at its offices and
meeting halls and all other places where notices are
posted for its members and employees it represents,
who are employees of the aforesaid Parties in Inter-
est, copies of the attached notice marked "Appendix
E." 13 Copies of said notices, on forms provided by
the Regional Director, after being duly signed by Re-
spondent Union's representative, shall be posted im-
mediately upon receipt thereof. All the foregoing no-
tices shall be maintained by Respondent Union for
60 consecutive days after posting in conspicuous
places where notices to the above-described members
and employees are customarily posted. Reasonable
steps shall be taken by Respondent Union to insure
that the notices are not altered, defaced, or covered
by any other material.
(d) Mail to the Regional Director of Region 2
signed copies of attached notice marked "Appendix
E" for posting by the Parties in Interest at their
places of business where their employees are repre-
sented by Respondent Union and in places where
notices to employees are customarily posted, if the
Parties in Interest are willing to do so. Copies of said
notice, on forms provided by the Regional Director,
shall, after being duly signed by representatives of
Respondent Union, be immediately returned to the
Regional Director for such posting.
(e) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps Respondent Union has taken to comply
herewith.
MEMBER FANNING, dissenting:
I cannot accept my colleagues' presumption that a
collective-bargaining agreement distinguishing be-
tween the benefits received by union stewards and
:2 See In 11, supra
^3 See In 11, supra
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees in the unit the steward serves vio-
lates the Act. Since there is no other basis for finding
the violations attributed to the Respondents, I would
dismiss the complaint.
The precise origins and purpose of the agreement
according superior seniority rights to stewards are
unknown. For more than 30 years it was not ques-
tioned; no member of the unit suggested that it be
changed or eliminated; and contracts containing the
agreement were ratified regularly by the bargaining
unit.
Evidence that stewards are selected on any basis
other than ability is lacking and there is nothing to
suggest that selection as a steward is a reward for
supporting the Union. There is no evidence that any
member of the unit has less than an equal opportuni-
ty to be selected as steward, or that there is, or ever
has been, any invidious discrimination in the selec-
tion of stewards.
The only basis for finding the agreement and its
application unlawful is the factually unsupported
conclusion that the agreement marginally encourages
union membership or support. But, to receive the ad-
vantage, the employee must be a steward. He is al-
ready required to be a member under a lawful union-
security clause.
It cannot be asserted-not with that confidence
necessary to find an unfair labor practice-that the
remote and contingent benefits associated with ser-
vice as a steward have any significant impact on a
member's election to support the Union. Although
my colleagues assume that the Union rewards
"good" members by making them stewards, there is
no evidence to support that assumption. Lacking any
evidence, it is unrealistic to assume that the Union
values an easy and self-serving enthusiasm over merit
and ability in selection for a post upon which its own
continued well being and future vitality depend. Nor
is there any evidence that the Union's members be-
lieve, or have any reason to believe, that the Union
will reward "good" members in that manner.
To find a violation of the law when both the ap-
parent purpose and effect of an act are lawful, it is
not enough that there could be some hidden and un-
lawful purpose or possible unlawful effect. That hid-
den purpose must be bared, the likelihood of that
conjectured effect proven. I believe that we can all
agree that it is unjust and unreasonable to clothe out-
wardly lawful conduct with a semblance of illegality
woven wholly from conjecture and supposition.
The only reasonable conclusion to be drawn from
the evidence, or from reasonable inference, is that
the agreement encourages or rewards service as a
steward. That is the apparent and only clear effect of
the agreement. Under familiar principles of law, that
must also be presumed to be the Respondents ' inten-
tion-there is evidence of no other . Yet it is clearly
lawful for an employer and the collective -bargaining
representative of its employees to recognize or en-
courage service as a steward . It is also lawful to
achieve that result by means of a seniority system.
In a case arising from the Selective Training and
Service Act of 1940 , 14 the Supreme Court was asked
to decide whether or not a collective -bargaining
agreement giving union stewards superior rights to
job retention was lawful if it deprived a veteran of his
job. Aeronautical Industrial District Lodge 727 v.
Campbell, 337 U.S. 521 (1949). In concluding that the
agreement did not violate the Selective Service Act,
the Court found its ultimate authority in the practic-
es and traditions of collective bargaining:
One of the safeguards insisted upon by unions
for the effective functioning of collective bar-
gaining is continuity in office for its shop stew-
ards or union chairmen . . . . Because they are
union chairmen they are not regarded as merely
individual members of the union ; they are in a
special position in relation to collective bargain-
ing for the benefit of the whole union. To retain
them as such is not an encroachment on the se-
niority system but a due regard of union inter-
ests which embrace the system of seniority
rights.
These considerations are decisive of the case.
The agreements . . . represent familiar devel-
opments in the process of collective bargaining
which the Selective Service Act presupposes and
in the context of which it must be placed... .
... A labor agreement is a code for the gov-
ernment of an industrial enterprise and, like all
government , ultimately depends for its effective-
ness on the quality of enforcement of its code.
Because a labor agreement assumes the proper
adjustment of grievances at their source, the
union chairmen play a very important role in the
whole process of collective bargaining . There-
fore it is deemed highly desirable that union
chairmen have the authority and skill which are
derived from continuity in office . A provision
for the retention of union chairmen beyond the
routine requirements of seniority is not at all un-
common and surely ought not be deemed arbi-
trary or discriminatory. [337 U.S. 521, 527-528.]
It is unrealistic , at least it is odd, to accord less
weight to the practices of collective bargaining under
the statute Congress designed to encourage it than in
14 So far as is relevant here, the Selective Service Act protects the seniority
rights of veterans upon their return after leaving their jobs to enter military
service.
DAIRYLEA COOPERATIVE, INC. 663
determining a similar issue under the Selective Ser-
vice Act.
A provision encouraging service as a steward
"surely ought not to be deemed arbitrary or discrimi-
natory." That in the one case the loss of a steward
would have resulted from a literal construction of
"seniority" and an act of Congress-though the same
might be said here-and not at the steward's choice
is unimportant. A unit without a steward is nonethe-
less without a steward. That is a fact, and debating
etiology is not likely to change it.
Establishing seniority on the basis of service on
behalf of the unit-as recognition rather than en-
couragement-has also been sanctioned by the Su-
preme Court, and its exercise need not be limited to
job retention.
Seniority rules governing promotions, transfers,
layoffs and similar matters may, in the first in-
stance, revolve around length of competent ser-
vice. Variations acceptable in the discretion of
bargaining representatives, however, may well
include differences based upon . . . time or la-
bor devoted to related public service, whether
civil or military, voluntary or involuntary. [Ford
Motor Co. v. Huffman, 345 U.S. 331, 338-339.]
That service as a steward is "public service" in the
context of the National Labor Relations Act is unde-
niable. Should doubt nonetheless exist, it should be
exorcised by Campbell, supra. And it is difficult to
discover "service" which can be related more directly
to the interests of a bargaining unit than as steward
in the selfsame unit.
The National Labor Relations Act expresses a
public policy encouraging and fostering collective
bargaining and, as part of that policy, comprehends
encouraging or recognizing service as a steward.
"Nothing in the National Labor Relations Act, as
amended, so limits the vision and action of a bar-
gaining representative that it must disregard public
policy.... " Huffman, supra at 342 . I see no reason
why our vision should be more limited.
As there is no evidence of any discrimination in
the selection of stewards, and no basis for concluding
that measuring seniority, in the first instance, by ser-
vice to the unit as steward violates the Act as a mat-
ter of law-precedent and logic both pointing in
quite the opposite direction-there is a clear failure
of proof of any violation of the Act.
I would dismiss the complaint.
APPENDIX A
Borden's Inc ., 11 Brown House Road, Stamford,
Conn. 06902
Crowley's Milk Company, Inc., 88 Millwood
Road, Millwood, New York 10546
Dairymen's League Cooperative Assn., Inc., Nan-
uet, New York 10954
Dellwood Dairy Co., Inc., 170 Saw Mill River
Road, Yonkers, New York 10701
Dellwood Dairy Co., Inc., 177 Lake Street, White
Plains, N.Y. 10708
Eastchester Dairy, 210 Marbledale Road, Tuck-
hoe, N.Y. 10707
Maplegrove Dairy, 60 West Main St., Nyack, N.Y.
10960
Kuritzky's Dairy, Inc., Route 202, Peekskill, N.Y.
10566
Smith's Dairy, Inc., 4 Winchester St., White Plains,
N. Y. 10708
Sunnybrae Farms, 37 Grove St., Mount Vernon,
N.Y. 10550
L. H. Brooks, P.O. Box 244, Millwood, N.Y.
10546
Fitchett Brenner, Inc., Box 1089, Poughkeepsie,
N.Y. 12601
Fitchett Emmandine Dairy, Inc., 152 W. Main St.,
Wappinger Falls, N.Y. 12590
Dairylea, P.O. Box 3353, Poughkeepsie, N.Y.
12603
Dairylea Cooperative Inc., Box 89 Goshen, N.Y.
10954
Crowley's Milk Co., Inc., 145 Conklin Avenue,
Binghamton, N.Y. 13903
Crowley's Milk Co., Inc., LaFargeville, N.Y. 13656
APPENDIX B
The seven union bargaining agreements involved
in this proceeding are:
1. The Metropolitan Milk Industry Agreement be-
tween the Union and Dairylea Cooperative Inc., the
Respondent, and the following parties in interest:
Borden's Inc.
Crowley's Milk Company Inc.
Dellwood Dairy Co. Inc., Yonkers, N.Y.
Dellwood Dairy Co. Inc., White Plains, N.Y.
Eastchester Dairy
Maple Grove Dairy
Kuritzky's Dairy Inc.
Smith's Dairy Inc.
Sunnybrae Farms
L. H. Brooks
2. The Mid-Hudson Milk Industry Agreement be-
tween the Union and
Fitchett Brothers
Fitchett Emmandine Dairy, Inc.
Fitchett Brenner, Inc.
Dairylea, Poughkeepsie
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. An agreement between the Union and Dairylea,
Goshen.
4. An agreement between the Union and Delton
Foods, Inc.
5. An agreement between the Union and Dairylea
Cooperative Inc., Binghamton.
6. An agreement between the Union and
Crowley's Milk Co., Binghamton.
7. An agreement between the Union and
Crowley's Milk Co., LaFargeville.
The Metropolitan, Mid-Hudson, and Dairylea
Goshen agreements carried 1973 termination or au-
tomatic renewal dates; those for Dairylea, Bingham-
ton, and Crowley's were 1974; and those for Del-
town, 1976. However, it is stipulated that renewal
agreements for those contracts expiring in 1973 had
been entered into and at all times material the clause
in dispute in this case maintained in full force and
effect.
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain and enforce any agree-
ment with Milk Drivers & Dairy Employees, Lo-
cal 338, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers
of America, giving union stewards top seniority
no matter what their length of employment with
respect to their selection for and the assignment
to them of contract benefits or other terms and
conditions of employment except for layoff and
recall.
WE WILL NOT discriminate against Peter J.
Daniels or any other employee by assigning a
driver route or any other term and condition of
employment other than layoff and recall to a
union steward on the basis of seniority when
such union steward does not in fact have top
seniority in terms of length of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights protected by Section 7
of the Act.
WE WILL jointly and severally with the Union
pay Peter J. Daniels any earnings he lost as a
result of awarding driver routes to union stew-
ards rather than to Daniels, when he had actual
top seniority in terms of length of service, and
WE WILL offer Peter J. Daniels the driver route he
would now have but for the unlawful assign-
ment of top seniority to union stewards.
DAIRYLEA COOPERATIVE INC.
APPENDIX D
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain and enforce any agree-
ment with Dairylea Cooperative Inc., Nanuet,
New York, giving our stewards or other repre-
sentatives top seniority no matter what their
length of employment, with respect to their se-
lection for, and assignment of, contract benefits
or other terms and conditions of employment
except for layoff and recall.
WE WILL NOT cause or seek to cause Dairylea
Cooperative Inc. to discriminate against Peter J.
Daniels, or any other employee, by assigning
driver routes or any other term and condition of
employment other than layoff and recall to a
union steward on the basis of seniority when
such steward does not in fact have top seniority
in terms of length of employment.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights protected by Section 7 of the Act.
WE WILL jointly and severally with Dairylea
Cooperative Inc. pay Peter J. Daniels any earn-
ings he lost as a result of awarding driver routes
to union stewards rather than to Daniels when
he had actual top seniority in terms of length of
service and we will notify Dairylea Cooperative
Inc. and Peter J. Daniels that we have no objec-
tion to its awarding Daniels the driver route he
would now have but for the unlawful assign-
ment of top seniority to union stewards.
MILK DRIVERS & DAIRY EMPLOYEES, LOCAL
338, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA
APPENDIX E
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To employees of Borden's Inc ., Crowley's Milk Com-
pany, Inc., Dairymen's League Cooperative Assn.,
Inc., Dellwood Dairy Co., Inc. (Yonkers), Dellwood
Dairy Co., Inc. (White Plains), Eastchester Dairy,
DAIRYLEA COOPERATIVE, INC.
Maplegrove Dairy, Kuritzky's Dairy, Inc., Smith's
Dairy, Inc., Sunnybrae Farms, L. H. Brooks, Fitch-
ett Brenner, Inc., Fitchett Emmandine Dairy, Inc.,
Dairylea, Dairylea Cooperative Inc., Crowley's Milk
Co., Inc. (Binghamton), Crowley's Milk Co., Inc.
(LaFargeville).
WE WILL NOT maintain and enforce any agree-
ment with your employer giving our stewards or
other representatives top seniority no matter
what their length of employment with respect to
their selection for, and assignment to them of,
contract benefits or other terms and conditions
of employment except for layoff and recall.
WE WILL NOT cause or seek to cause your em-
665
ployer to discriminate against any of its employ-
ees by assigning any term and condition of em-
ployment other than layoff and recall to a union
steward on the basis of seniority when such
steward does not in fact have top seniority in
terms of length of employment.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights protected by Section 7 of the Act.
MILK DRIVERS & DAIRY EMPLOYEES, LOCAL
338, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA