Darigold Dairy Products Co.

National Labor Relations Board - Board Decisions

Dec 22, 1971

194 N.L.R.B. 701 (N.L.R.B. 1971)

DARIGOLD DAIRY PRODUCTS CO. 701
Consolidated Dairy Products Company, d/b/a Dari-
gold Dairy Products Company and Teamsters
General Local, 174, affiliated with the, International,
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (Consolidated
Dairy Products Company) and Robert H. Sisson.
Cases 19-CA-5211 and 19-CB-1671
Sisson at the top of said list. In such latter event,
Robert H. Sisson is to be offered employment at such
time as a vacancy may occur in the bargaining unit at
Respondent Consolidated which Respondent Team-
sters General Local 174 represents."
2. Substitute the attached notices for the Trial
Examiner's notices.
December 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 15, 1971, Trial Examiner Leo F.
Lightner issued the attached Decision in this proceed-
ing. Thereafter, both Respondents filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and has
decided to affirm the Trial Examiner's rulings,
findings, and conclusions and to adopt his recom-
mended Order, as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent Consolidated
Dairy Products Company, d/b/a Darigold Dairy
Products Company, Seattle, Washington, its officers,
agents, successors, and assigns; and the Respondent
Teamsters General Local 174, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's recommended Order, as
modified.
1. Substitute the following paragraph for para-
graph I, 2(a), of the recommended Order.
"(a) Offer to Robert H. Sisson immediate employ-
ment in the bargaining unit of which Respondent
Teamsters General Local 174 is the representative
without prejudice to seniority and other rights and
privileges he would have enjoyed had he been
employed on March 23, 1971, or, in the event no such
vacancy exists, and no employee has been hired since
March 23, 1971, as a wholesale or interplant driver in
the bargaining unit of which Respondent Teamsters
General Local 174 is the representative, establish a
preferred hiring list and place the name of Robert H.
1 In the absence of exceptions to the rulings, findings, and conclusions
of the Trial Examiner, we adopt them pro forma Both Respondents except
to that part of the Trial Examiner's recommended Order at paragraph I,
2(a), wherein the Trial Examiner ordered Respondent Consolidated to offer
the Charging Party immediate employment in either its ice cream
department or its milk department as a driver or in case there are no
vacancies in either department to establish a preferential hiring list for both
departments and to place the Charging Party's name at the top of the list.
The Respondents contend that in including the milk department in the
recommended Order the Trial Examiner has gone beyond the scope of his
jurisdiction in this case since the milk department drivers of Respondent
Consolidated are covered by a different contract in a separate unit by a
different local, not Respondent Teamsters , which local is not a party to this
proceeding, made no appearance , and received no notice concerning same.
We agree that the milk department should not be included in the
recommended Order and modify the Order accordingly
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in Team-
sters General Local 174, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, by
discriminating against any employee, or applicant
for employment, in regard to his hire or tenure of
employment, or any term or condition of employ-
ment.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of the right to self-
organization, to form labor organizations, to join
or assist the above-named Union or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to
engage in any other concerted activity for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities, except to the extent that such right
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.
WE WILL offer employment to Robert H. Sisson
as a wholesale or interplant driver in the bargain-
ing unit which Teamsters General Local 174,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, represents, without prejudice to
194 NLRB No. 111
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority and other rights and privileges he would
have normally enjoyed whenever a vacancy in that
unit shall occur.
WE WILL jointly and severally with Teamsters
General Local 174, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, make Robert H.
Sisson whole for any loss of pay he may have
suffered as a result of the discrimination against
him by paying him a sum of money equal to that
which he would have earned absent the discrimi-
nation.
CONSOLIDATED DAIRY
PRODUCTS COMPANY,
D/B/A DARIGOLD DAIRY
PRODUCTS COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by, any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Republic Building, 10th Floor, 1511 Third
Avenue, Seattle, Washington 98101, Telephone
206-442-5536.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause, or attempt to cause,
Consolidated Dairy Products Company, d/b/a
Darigold Dairy Products Company, or any other
employer within our jurisdiction, to discriminate
against Robert H. Sisson , or any other employee,
in violation of the proscriptions of Section 8(a)(3)
of the Act.
WE WILL notify Consolidated Dairy Products
Company, d/b/a Darigold Dairy Products Com-
pany, that we have no objection to the employ-
ment of Robert H. Sisson as a wholesale or
interplant driver, that we will not cause or attempt
to cause said employer to discriminate against
Robert H. Sisson , or any other employee, because
he is not a member of Local 174, except to the
extent that membership may be required as a
condition of employment under the terms of a
collective-bargaining agreement made as author-
ized in Section 8(a)(3) of the Act.
WE WILL NOT restrain or coerce employees in
the exercise of the rights guaranteed in Section 7 of
said Act.
WE WILL jointly and severally with Consolidat-
ed Dairy Products Company, d/b/a Darigold
Dairy Products Company, make said Robert H.
Sisson whole for any loss he may have suffered as a
result of the discrimination we have caused.
TEAMSTERS GENERAL
LOCAL 174, AFFILIATED
WITH THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Republic Building, 10th Floor, 1511 Third
Avenue, Seattle, Washington 98101, Telephone
206-442-5536.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Seattle , Washington, on August 5, 1971,
on the consolidated complaint of General Counsel, as
amended, and the answers of Consolidated Dairy Products
Company, herein referred to as Respondent Consolidated
or Consolidated, and Teamsters General Local 174,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America , herein
referred to as Respondent Local or the Union.' The
consolidated complaint alleges violations of Section 8(a)(3)
and (1), Section 8(b)(1)(A) and (2), and Section 2(6) and (7)
of the Labor Management Relations Act, 1947, as
amended, (61 Stat. 136; 65 Stat. 601; 73 Stat. 519; 29 U.S.C.
Sec. ' 151 et seq.), herein called the Act. The parties waived
, A charge in Case 19-CA-521 1, against Respondent Consolidated, was
filed on April 6. A charge in Case 19-CB-1671, against Respondent Local,
was filed on April 6 A consolidated complaint was issued on June 23, and
amended during the hearing herein. All dates herein are 1971, unless
otherwise indicated.
DARIGOLD DAIRY PRODUCTS CO.
closing argument and briefs filed by the General Counsel
and Consolidated have been carefully considered.
Upon the entire record,2 and from my observation of the
witnesses I make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT CONSOLIDATED AND
RELATED EMPLOYERS
Respondent Consolidated is a Washington corporation,
with offices and a plant located in Seattle, Washington,
where it is engaged in the processing, sale, and distribution
of milk and dairy products.
Dairy Employers Labor Council is an association of
employers in the dairy industry including,' inter alia,
Respondent Consolidated, and is established and exists,
inter alga, for the purpose of negotiating collective-bargain-
ing agreements with Respondent Local and other labor
organizations on behalf of its employer-members.
During the year immediately prior to the issuance of the
consolidated complaint, a 'representative period, the
employer-members of the Council, in the course and
conduct of their business operations, sold and distributed
products valued in excess of $500,000, of which products
valued in excess of $50,000 were shipped from their plants,
located in the State of Washington, directly to points
outside the State of Washington.
The consolidated complaint alleges, the answers admit,
and I find that the Council, and its employer-members,
including Respondent Consolidated, are each, and at all
times material herein have been, employers engaged in
commerce and in activities affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. RESPONDENT' LOCAL IS A LABOR ORGANIZATION
The consolidated complaint alleges, the answers admit,
and I find that Respondent Local, at all times material, is
and has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings and litigated
at the hearing are: whether Respondent Local, by Leonard
Newsham, its business representative and agent, and by
George Cavano, its secretary-treasurer and agent, on or
about March 19, March 23, and April 8 requested and
demanded that Respondent Consolidated refram from
hiring Robert H. Sisson, because Sisson was not a member
of Respondent Local, and threatened picketing, work
stoppages, and other reprisals, if Sisson was so employed, in
derogation of the provisions of Section 8(b)(2) and Section
8(b)(1)(A) of the Act; and whether Respondent Consolidat-
ed,'by refusing to employ Sisson, because of his nonmem-
bership in Respondent Local, since March 23, in response
to the demand and request of Respondent Local, in that
2 General Counsel filed a motion to correct the transcript No
opposition thereto has been received. The motion is granted, and the
703
regard, has thereby engaged in conduct in derogation of the
provisions of Section 8(a)(3) and (1) of the Act.
Respondent Consolidated, by answer, acknowledges that
Sisson was advised that he was qualified for employment,
but asserts that it was on a temporary basis, allegedly
during the period of incapacitation of two drivers.
Respondent Consolidated admits it did not hire Sisson, but
asserts that this conduct was confined to a period while the
interpretation of the collective-bargaining agreement was
being discussed with Respondent Local, and asserts that
meanwhile the absentees returned, inferentially obviating
the need for Sisson. Both Respondents deny the commis-
sion of any unfair labor practice.
Agency
The consolidated complaint alleges , the answer of
Respondent Local denies, and I find that George Cavano,
secretary-treasurer, and Leonard Newsham, business
representative, respectively, of Respondent Local, at all
times material herein, were and are agents of Respondent
Local.
Background
The facts set forth under this section are undisputed.
Jay Kaintz is wholesale distribution manager of Respon-
dent Consolidated, and during March and April was
responsible for the wholesale workforce relative to the in-
town delivery in Seattle and interplant throughout the State
of Washington. Kaintz related that Respondent has two
divisions, one comprised of wholesale milk and the other
ice cream. Kaintz, in March, and April, and inferentially at
all times thereafter, was directly responsible for the hiring
and firing of truckdrivers. He related that the milk truck
drivers are represented by Local 66, while the ice cream
drivers are represented by Respondent Local.
The delivery of ice cream, by Respondent Consolidated,
is accomplished by a unit comprised of nine drivers and one
supervisor. Eight of the drivers deliver ice cream on
wholesale routes in the city of Seattle. This is accomplished
in 16 foot trucks. The other driver delivers ice cream to
outlying plants of Respondent Consolidated, some of which
are 100 miles distant, in such locations as Bremerton,
Everett, Bellingham, Tacoma, Olympia, Ellensburg, Aber-
deen, Chehalis, and Wenatchee, Washington, and Portland,
Oregon. These deliveries are made in a semi, with two
trailers, comprising a total length of 40 feet. The trips to
Wenatchee and Ellensburg involve crossing mountain
passes, including the Snoqualmie Pass which is over 3,000
feet in elevation, thus requiring the competence essential to
traverse during inclement weather and under adverse
conditions created by heavy snows. Kaintz asserted,
relative to this aspect, that experience was an important
factor, particularly in relation to the large equipment which
is very expensive. The duties of the supervisor of these
drivers include filling in for and driving the route when a
driver is absent.
record is corrected accordingly.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Karatz related that one driver was absent substantially all
of January and a portion of February.3
Inferentially on an unspecified day prior to Sunday,
March 14, Karatz was advised that a wholesale driver,
identified as Jim Baker, had an ailment, which Kaintz was
advised was rheumatism of the stomach, which was
described to Kaintz as a rare illness, which would require
confinement in a hospital for observation for an indefinite
period of time. Baker complained that the stomach pains
affected his legs, thus impeding his ability to accomplish his
assigned duties. Inferentially at approximately the same
time, Kaintz was advised that Ron Alm, the interplant
driver, would be absent for an indefinite period, for an
operative procedure, described to Kaintz as the result of a
pinched nerve in Alm's spinal column, which would require
a substantial period for recuperation. Kaintz was thus
confronted with the probability of incapacitation, and
resultant simultaneous absenteeism of two drivers. As a
result, Kaintz undertook steps leading to the hiring of a new
employee.
Robert Sisson has been driving trucks for approximately
20 years, including driving 16 foot trucks, in the milk
industry on wholesale routes, and the driving of semis and
trailers. He has been in the milk industry for approximately
13 years. Sisson worked for Foremost, a dairy in Seattle,
from 1958 until 1970. In the latter year he entered into
business with a relative in Chicago. When the venture
became a disappointment, he returned to Seattle, in
October, and sought employment again as a driver in the
milk industry. He filed an application on October 15, 1970,
with Respondent Consolidated. The following month he
was retained by Arden's Dairy, where his duties included
the night loading of wholesale trucks and every-other-day
delivery semis. These duties included driving and backing
the trucks into the dock, and, after loading, parking them in
the yard. While Sisson was not engaged in delivery work, as
such, this was full-time employment.
Respondent Consolidated, by reason of its membership
in the Dairy Employers' Labor Council, and Respondent
Local, are parties to a collective-bargaining agreement
covering Respondent Consolidated's ice cream drivers. The
current agreement, by its terms, is effective from April 1,
1970, through March 31, 1972, and its provisions include,
inter alia:
No. 2 -Article II. The employer agrees to notify the
Local Umon of the name or names of persons hired.
Newly hired employees shall be required to report to the
Union before starting work.
No. 3 -Article IX D. The company shall notify the
Union when new or additional employees are needed.
The Union shall have twenty-four (24) hours from
receipt of such notice to nominate applicants for the
job. No applicants shall be preferred or discriminated
against because of their membership or non-member-
ship in the Union.
Events of March 19, 22, and April 8, and other
events related thereto
Kaintz related that during the week which commenced
on Sunday, March 14, he decided to hire a new truckdriver
in the ice cream department by reason of the anticipated
simultaneous absence of Baker and Alm. In accordance
with the provisions of the existing collective-bargaining
agreement, set forth, supra, Respondent Local was notified.
Respondent Local, pursuant to such notification, sent two
applicants, identified as Usmial and Mazzone, who were
interviewed by Lloyd Lund. Lund, who has been employed
by Respondent Consolidated for 30 years, is route
supervisor and supervisor of interplant wholesale. At the
same time, Kaintz telephoned to Sisson and inquired as to
how Sisson liked his job at Arden's. Sisson responded by
indicating that he was interested in driving the interplant
route, which was the job_mentioned by Kaintz.
The following day, Kaintz, in an interview with Sisson,
explained the problem he was having by reason of the
illness of some employees, and advised that he needed
someone who would be dependable and could be counted
on to be there every day. Kaintz advised Sisson that Sisson
would probably be driving the interplant route, because
Sisson was not familiar with ice cream prices and the
wholesale route. At that time, Sisson advised Kaintz that he
would not accept a job of only a few weeks duration,
because he had a job at Arden and "jobs were very hard [to
obtain] and scarce". Kaintz responded that Kaintz was
sticking his neck out, "but I'll keep you until September
then we'll see what happens after that".4
Lund, after interviewing Usmial and Mazzone, deter-
mined that Mazzone had very little experience. The
maximum amount of time he had spent on any related job
was 6 months and his jobsheet reflected only three
equivalent jobs. Accordingly, Lund advised Kaintz that he
believed that Usmial was the better qualified of the two
applicants he had interviewed. Usmial had indicated on his
application that he did not like to drive, inferentially over
the mountain passes, in the snow, and had quit a job
requiring such driving. Such driving is an obvious requisite
of the interplant job. Lund and Kaintz acknowledged that
upon consideration of the background of Sisson, set forth
supra, they determined that Sisson was the best qualified of
the three applicants.5
On Friday, March 19, Kaintz related that it was decided
that Sisson was the best qualified of the applicants and
Sisson was so advised. Kaintz asserted that it was planned
to "blend the job" with the unit supervisor so that Sisson
would or could be used both on the semi and, if needed, on
the wholesale route. Kaintz related that Bud Ellis, whom he
3 It appears to be of no consequence whether a single driver or more
than one driver was involved in these absences However , it does not
appear that more than one drier was absent on any given day
4 Karatz appeared as a witness before Sisson . Kaintz was not recalled
and did not deny this assertion of Sisson , except inferentially The assertion
of Karatz that he advised Sisson that it was a temporary job , in the light of
the entire record, and particularly in view of the development of
unanticipated and unforeseeable events relative to the return of Baker and
Alm, is not credited . Kamtz acknowledged contemplating hiring Sisson full
time
5 It is undisputed that Lund did not interview Sisson but did review his
application, which set forth his experience. In addition , Sisson had
presented a letter of recommendation from the route supervisor at
Foremost , who had written that Foremost had never had "a finer
employee". The particular route supervisor whose signature appeared on
the letter , identified as Harold Nelson, was a personal acquaintance of
Lund, whom Lund respected very highly. Karatz had talked to Foremost,
inferentially to Nelson, to verify Sisson's past experience
DARIGOLD DAIRY PRODUCTS CO.
identified as the business representative of Local 66, was
advised, since Ellis also represented the milk drivers at
Arden, where Sisson was employed.6 Kaintz asserted that
on Friday, March 19, "we thought Mr. Sisson was going to
be the fellow that we hired, and I think the question was
whether everything was O.K. over there [at Arden]".
Kaiiitz advised Sisson that he was to begin work on
Tuesday, March 23, if a replacement at Arden could be
found. Sisson was instructed to advise Arden, that Monday,
March 22, would be his last day. When Sisson so advised
Arden, on Saturday, he was, in turn, advised that Arden
had secured a former employee as his replacement, and that
Saturday would be Sisson's last day, since if Sisson worked
on Monday night, at Arden, he would not be able to
commence work on Tuesday morning for Consolidated.
The same day, Sisson received a telephone call from Andy
Erickson, supervisor of the ice cream department, and the
employees represented by Respondent Local, who inquired
relative to the size of the uniform which Sisson would need,
and who advised Sisson that he was glad to have Sisson join
his workforce.
Kaintz, on March 19, also advised the Union, pursuant to
the provisions of the collective-bargaming agreement, of its
selection of Sisson, a member of Local 66. About 8 a.m., on
March 19, the Union' s business agent , Leonard Newsham,
advised Kamtz that Consolidated could not hire Sisson,
that if they did so the Union would take economic action
by placing pickets at the various plants of Consolidated.
Kaintz responded to Newsham by advising that Kaintz
would advise Kaintz' superior, identified as Mr. Meyers.
Later, the same day, Newsham advised Meyers that
Newsham would send a third applicant. Meyers agreed to
postpone the hiring of Sisson , pending the interview of the
.third applicant, who was supposed to appear on the evening
of March 19, but in fact did not appear until March 23.
Kaintz asserted that Newsham stated the reason the
Union did not want Consolidated to hire Sisson was
"because he [Newsham] wanted one of the people from
Local 174 to have the job".7 Asked if he advised the Union
why he wanted to hire Sisson , Kaintz responded that he did
not get a chance to supply this information. Kaintz advised
Sisson that Sisson's employment would have to await the
interview of the third union referral, then scheduled for
March 19.
Kaintz acknowledged that on Monday, March 22, he
advised Sisson to report for work on Tuesday, March 23,
and that a uniform was made up for Sisson . At the same
time Sisson was notified that he would have to transfer into
Local 174.
Sisson related that, pursuant to the instruction of Kaintz,
Sisson went to Local 174 on Monday, March 22, where an
office employee gave him an application for a transfer,
which he filled out. The employee then advised Sisson that
the application had to be approved by one of the business
agents. Sisson provided her with his telephone number.
These events occurred at approximately 10 a.m.
On the evening of Monday, March 22, Kaintz advised
6 It is reasonable to infer that it was Ellis who arranged for the
replacement of Sisson at Arden's.
7 Newsham did not appear as a witness . This testimony stands
undisputed and is credited.
11 Neither Cavano nor Newsham appeared as witnesses No explanation
705
Sisson that Kaintz was having trouble with the Union
relative to the transfer of Sisson and requested that Sisson
"take it easy" while they resolved the problem "because
there was no problem with the transfer, it was on the
hiring".
Sisson returned to the union office, on March 31, and
talked to Newsham. Sisson explained to Newsham that he
needed a transfer to work at Consolidated. Newsham
responded that, "First I [Sisson] had to have a job". Sisson
responded that he did have a job. Newsham repeated his
statement that Sisson had to have a job. Sisson thanked him
and went to Local 66 and paid his dues. Sisson has not
heard further from Kaintz, Consolidated, or the Union.
Kaintz related that there was a meeting between
Consolidated officials and union representatives in the
office of Cavano on April 8. Those present representing
Consolidated included Les Jenne, labor relations represent-
ative, Gordon Laughlin, economist, and Kaintz. Cavano
and Newsham represented the Union. The purpose of the
meeting was a discussion of Consolidated's decision to hire
Sisson rather than one of the Union's referrals. Kaintz
credibly related that Cavano asserted that if the Company
did hire Sisson no trucks would go out .8
Kaintz related that Baker returned to work on Monday,
March 22. It appears his ailment has not been a hindrance
to his performance of his duties since that time. Two weeks
later, on Monday, April 5, Alm returned to duty. Kaintz
asserted that Alm advised that what had been diagnosed as
a disc problem turned out to require no more than the
removal of a cyst. Kaintz acknowledged that it was the first
of April before he was advised that Alm's condition was not
as serious, in terms of essential period of recuperation, as
initially indicated.
Kaintz acknowledged that no one had been hired, or
transferred, into the delivery unit in the ice cream
department, since March 22. Kaintz acknowledged that
overtime, in the summer, particularly July and August,
normally approximates 5 percent, in the ice cream
department, and in past years, with the exception of 1970,
Consolidated has hired extra help during such periods. This
year the overtime has approximated 10 percent. Kaintz
asserted Sisson would have been employed by Consolidat-
ed, during the period of this excessive overtime, had it not
been for the Union's objection.
While Kaintz denied advising Sisson that the job would
last at least until September, I have credited Sisson's
assertion that he was so advised. Kaintz did relate that he
felt, if they had any break in the weather, that it was
possible that Sisson would be kept on "during the summer".
I find, in the light of this record, that in the parlance of the
parties, in the ice cream business, Labor day, which is
September 6, is considered the end of the summer.
Concluding Findings
I have found that, on March 19, Kaintz advised Sisson to
report for work on Tuesday, March 23, and to advise his
was made of the failure of the Union to call them. While Kaintz related
that at the time of prior vacancies employees were transferred from Local
66 to Respondent Union, it is unclear in the record whether this fact was
mentioned on April 8.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then employer, Arden, accordingly, so Arden could make
arrangements for a replacement. At the same time Kaintz
advised Bud Ellis, business representative of Local 66, who
represented the milk drivers at both Arden and Consolidat-
ed, of the decision Kaintz had made relative to Sisson, so
that Ellis could assist Arden in the obtaining of a
replacement for Sisson. These facts, together with the
forthwith obtaining of a uniform for Sisson, reflect the
importance Kaintz attached to the prompt execution of his
decision to hire Sisson. In view of the anticipated
hospitalization of both Baker and Alm such precipitate
haste is understandable.
Only the threat of Newsham to picket Consolidated,
because Newsham wanted a member of Local 174 to have
the job, prevented employment of Sisson. I find Respon-
dent Consolidated knew that membership in the Union was
not available to Sisson on the same terms and conditions
available to other members, and knew that Sisson was
denied membership for reasons other than the failure to
tender periodic dues and initiation fees uniformly required.
The effort of Sisson to obtain the requisite transfer from
Local 66 to Local 174, on March 22, and again on March
31, met with the advice of Newsham that Sisson first had to
have a job, which is otherwise translated to mean that
Newsham and Cavano did not approve of the selection, by
Consolidated, of anyone who was not already a member of
Local 174. The meeting of April 8, and the threat of
Cavano, at that time, to picket all of the plants of
Consolidated, if Sisson was hired, merely added emphasis
to preceding events. The statements of Cavano, made on
April 8, as well as the statements of Newsham, on March
19, to Kaintz and others, were clearly the reasons for the
failure of Consolidated to consider the employment of
Sisson thereafter. In other words, the Union caused
Consolidated to discriminate against Sisson, who was
refused membership in Respondent Local for reasons other
than a failure to tender dues and initiation fees. This
conduct is precisely what Section 8(b)(2) proscribes.
The contention of Consolidated, in its brief, that its
failure to hire Sisson was due to a dispute arising over the
application of the collective-bargaining agreement is
without substance and without merit. The same conclusion
applies to Consolidated's contention that the unexpected
return of Alm, on April 5, modified its discriminatory
conduct, which had occurred on March 19 and March 22.
The assertion that Sisson was not hired during the summer
because "the hearing in the, present case was set" is patently
frivolous, and in willful disregard of the threats of Cavano
and Newsham. Newsham's threat was the sole reason for
the failure of Consolidated to employ Sisson on March 23.
Consolidated had complied with the provisions of article
II of the collective-bargaining agreement by notifying the
Union, on March 19, of its anticipated employment of
Sisson. Similarly, Consolidated complied with the require-
ments of article IX.D. when, during the week of March 14,
9 Reinforcing Iron Workers, Local Union No. 426, International
Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(Tryco Steel Corp), 192 NLRB No 1, General Teamsters Local 439,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, (Los Angeles-Seattle Motor Express, Inc), 172 NLRB
No. 231, Rust Engineering Company, 183 NLRB No 76, enfd. 445 F.2d 172
(C.A 6) (July 15, 1971), Local Union No 2, of the United Association of
it advised the Union to nominate applicants. Nothing in the
cited articles required Consolidated to confine its selection
to individuals nominated by the Union. The contract
provisions do not equate a hiring hall. What the Union
sought to accomplish, in fact, is in direct conflict with the
last portion of the last article which provides: No
applicants shall be preferred or discriminated against
because of their membership or nonmembership in the
Union. I find accordingly.
There are numerous Board decisions, with court
approval, which find that the conduct of the Union herein,
in insisting that Consolidated employ one of its members, is
violative of the provisions of Section 8(b)(2) and (1)(A) of
the Act. Section 8(a)(3) proscribes discriminating to
encourage membership in any labor organization, particu-
larly where an employer has reasonable grounds for
believing that membership in a union was denied for
reasons other than failure of an employee to tender periodic
dues and initiation fees uniformly required as a condition
of acquiring or attaining membership. It follows that
Consolidated's failure to employ Sisson was discriminatori-
ly motivated and violative of the provisions of Section
8(a)(3) and (1) of the Act .9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operations of
Consolidated set forth in section I, above, having a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent Teamsters General Local
174, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, has engaged in certain unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) of the Act,
and having found that Respondent Consolidated Dairy
Products Company has engaged in certain unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act, I will recommend that each cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent Consolidated advised
Robert H. Sisson that he would be employed commencing
March 23 for a period extending at least until September, at
which time Kaintz would see "what happens after that". I
am unable to translate this into a firm assurance of
employment after September 6. The purpose of the Act is
not to inflict a penalty, but rather to seek to restore, or
establish, the status quo ante. Accordingly, I recommend
Journeymen and Apprentices of the Plumbing and,Pipefitting Industry of the
United States and Canada, AFL-CIO, (Astrove Plumbing & Heating Corp),
152 NLRB 1093, enfd. 360 F.2d 428 (C.A. 2); Local Union No 55, and
Carpenters District Council of Denver and Vicinity (Professional and Business
Men's Life Insurance Company), 108 NLRB 363, 371-373, enfd. 218 F.2d
226 (C A 10); Denver Building and Construction Trades Council (Henry
Shore), 90 NLRB 1768, enfd. 192 F.2d 577 (C.A. 10).
DARIGOLD DAIRY PRODUCTS CO.
that Respondent Consolidated offer Robert H. Sisson
employment as a wholesale or interplant driver, in either
the ice cream department or the milk department, subject,
nevertheless, to the following conditions. At the time of
hearing, on August 5, it appeared undisputed that the
normal complement of drivers in the ice cream department
unit was comprised of nine individuals and one supervisor,
both prior to March 14 and on and after April 5, i.e.
following the return of Baker and Alm, however, Kaintz
acknowledged Sisson would have been employed during
the summer absent the objection to his employment by the
Union. I do not find credible the implication of Kaintz that
if Sisson had been permitted to commence working on
March 23, he would not have been retained until
September. The purpose of this recommendation is to
afford Sisson with placement in the event there has been a
vacancy in the complement of drivers, in either department,
at any time prior to the effective date of this recommenda-
tion.
In the alternative, in the event there have been no
vacancies, in terms of essential driver personnel, in either
department, it is recommended that Respondent Consoh-
dated be required to establish a preferred hiring list, and
place the name of Robert H. Sisson at the top of such list,
for the purpose of offering employment to him whenever
such a vacancy may occur, in either department, and to
continue Sisson on such a list until such time as a vacancy
does occur in the ice cream department, even if Sisson,
meanwhile, is placed in a position in the milk department.
In addition, I will recommend that Respondent Consoli-
dated and Respondent Local, jointly and severally, make
Robert H. Sisson whole for any loss of pay he may have
suffered, from March 23 to and including September 6, by
reason of the discrimination against him, without prejudice
to his right to establish that he would have been retained
beyond September 6, if such be the fact, in a, supplementary
proceeding. Said loss of pay shall be based upon the
earnings Sisson would have earned between the dates
indicated, less net earnings during said period. Said
backpay shall be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. Interest on back pay shall be
computed in the manner set forth in Isis Plumbing and
Heating Co., Inc., 138 NLRB 716.
It is also recommended that Respondent Consolidated be
ordered to make available to the Board, upon request,
payroll and other records to facilitate checking of the
amount of earnings due.
In view of the nature of the unfair labor practices
committed the commission of similar unfair labor practices
may be reasonably anticipated. I shall therefore recom-
mend that Respondent Consolidated and Respondent
Local be ordered to cease and desist from in any like or
related manner infringing upon rights guaranteed to its
employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent Consolidated Dairy Products Company
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations and Recommended Order herein
707
is an employer engaged in commerce and in an industry
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent Teamsters General Local 174 is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminating against Robert H. Sisson, in regard
to his hire and tenure of employment, Respondent
Consolidated 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 Respondent Consolidated to discriminate
against Robert H. Sisson, and by restraining and coercing
Robert H. Sisson in the exercise of rights guaranteed in
Section 7, Respondent Local has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby issue the following
recommended:
ORDER 10
1. Consolidated Dairy Products Company, d/b/a
Dangold Dairy Products Company, its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Encouraging membership in Teamsters General Local
174, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, by discriminating against any employee, or
applicant for employment, in regard to his hire or tenure of
employment, or any term or condition of employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees, in the exercise of the
right to self-organization, to form labor organizations, to
join or assist the above named Union, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other
concerted activity for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right
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 bythe
Labor Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer to Robert H. Sisson immediate employment
without prejudice to seniority and other rights and
privileges he would have enjoyed had he been employed on
March 23, or, in the event no vacancy presently exists, and
no employee has been hired as a wholesale or interplant
driver in either the ice cream department or the milk
department, since March 23, establish a preferred hiring list
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and Order,
and all objections thereto shall be deemed waived for all purposes.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and place the name of Robert H. Sisson at the top of said
list. In such latter event, Robert H. Sisson is to be offered
employment at such time as a vacancy may occur in either
department, subject to a transfer into the ice cream
department, when a vacancy in that department shall
occur.
(b) Respondent Consolidated shall make Robert H.
Sisson whole for any loss of pay he may have suffered by
reason of Respondent's discrimination against him in
accordance with the recommendations set forth in "The
Remedy" herein. Said liability shall be joint and several
with the Respondent Local.
(c) Preserve and make available to the Board or its
agents, upon request, for inspection and reproduction, all
payroll records, Social Security reports, timecards, person-
nel files, and all other records necessary to analyze,
compute, and determine the amount of back pay to which
Robert H. Sisson may be entitled under the terms of this
Trial Examiner's Decision.
(d) Post at its place of business in Seattle, Washington
copies of the notice attached hereto marked "Appendix
A".11 Copies of said notice, on forms to be furnished by the
Regional Director for Region 19, shall, after being duly
signed by an official representative of Consolidated, be
posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall
be taken by Respondent Consolidated to insure that said
notices are not altered, defaced, or covered by any other
material.
II. Teamsters General Local 174, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, its officers,
representatives, successors, and assigns shall:
1. Cease and desist from:
(a) Causing, or attempting to cause, Consolidated Dairy
Products Company, d/b/a Darigold Dairy Products
Company, or any other employer within its jurisdiction, to
discriminate against Robert H. Sisson, or any other
employee, in violation of the proscriptions of Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgement of the United States Court of Appeals
enforcing an order of the National Labor Relations Board".
employees in the exercise of the rights guaranteed in
-Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Notify Consolidated Dairy Products Company, d/b/a
Darigold Dairy Products Company, in writing, that it has
no objection to the employment of Robert H. Sisson, as a
wholesale or interplant driver, that it will not cause or
attempt to cause said employer to discriminate against
Robert H. Sisson, or any other employee, because he is not
a member of Local 174, except to the extent that
membership may be required as a condition of employment
under the terms of a collective-bargaining agreement, made
as authorized in Section 8(a)(3) of the Act.
(b) Jointly and severally with Respondent Consolidated
make whole Robert H. Sisson for any loss he may have
suffered commencing March 23 and ending September 6, as
provided in the remedy herein.
(c) Post at its meeting hall and dispatch office copies of
the notice attached hereto marked "Appendix B".12 Copies
of said notice on forms to be provided by the Regional
Director for Region 19, shall, after being duly signed by its
authorized officer or representative, be posted by it
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including each of the Union's bulletin boards, and all
places where notices to its members are customarily posted.
Reasonable steps shall be taken by the Union to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Furnish signed copies of said "Appendix B" to said
Regional Director for posting at the places where notices of
Respondent Consolidated to its employees are posted, if
said Respondent Consolidated is willing so to do.
III. Each Respondent shall notify the Regional Direc-
tor of Region 19, in writing, within 20 days from the date of
the receipt of this Trial Examiner's Decision what steps
each has taken to comply therewith. It is further
recommended that unless Respondent shall, within 20 days
from the date of the receipt of this Trial Examiner's
Decision, notify said Regional Director, in writing, it will
comply with the foregoing recommended Order 13 the
National Labor Relations Board issue an Order requiring
each Respondent to take the action aforesaid.
12 See In . 11, supra
13 In the event that this recommended Order be adopted by the Board
this provision shall be modified to read "Notify said Regional Director, in
writing, within 20 days from the date of this Order what steps each
Respondent has taken to comply therewith".