Fairmont Foods Company

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 915 (N.L.R.B. 1979)

FAIRMONT FOODS COMPANY
Fairmont Foods Company and International Union of
Operating Engineers, Local Union No. 34, AFL-
CIO and Milk Drivers and Dairy Employees Union,
Local No. 471, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Party to the Contract. Case 18-
CA-5635
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELI.()
On July 16, 1979, Administrative Law Judge Wil-
liam F. Jacobs issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We find no merit to Respondent's sole exception
that the Administrative Law Judge's recommended
remedy penalizes Respondent by requiring it to make
contributions for certain employees into the Operat-
ing Engineer Local 34 pension fund, inasmuch as it
already has made similar contributions into the
Teamsters Local 471 pension fund, which it claims
may result in these employees receiving windfall pen-
sion benefits. Respondent does not dispute the finding
that by unlawfully recognizing Teamsters Local 461
as the collective-bargaining representative of its
maintenance engineer employees and by making pay-
ments for these employees into the Local 471 pension
fund Respondent has acted in derogation of the rights
of these employees and of their lawful collective-bar-
gaining representative, Operating Engineers Local 34.
By ordering Respondent to reimburse Local 34 for
the loss of all pension-plan payments incurred as a
result of Respondent's unlawful withdrawal of recog-
nition, the Administrative Law Judge has done no
more than construct a remedy which attempts to re-
store the status quo ante with respect to the employees
involved herein.
Payments into pension plans do not necessarily
t The Administrative Law Judge inadvertently stated at one point in his
Decision that Respondent hired Richardson. The record shows that Richard-
son was never hired by Respondent.
benefit the employee on whose behalf the contribu-
tions were made. The actual receipt of any benefit
under a pension plan typically is contingent on vest-
ing requirements and proportional to the period of
coverage under the plan, so that any benefit resulting
from coverage under the alternate plan is entirely
speculative. 2 Given the uncertainty over whether Re-
spondent's unilateral payments into the Teamsters
Local 471 pension plan will result in benefits to the
covered employees at some future time, we find that
such payments do not warrant deductions from
amounts otherwise due the Operating Engineers Lo-
cal 34 pension plan.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Fairmont Foods Company,
Minneapolis, Minnesota, its officers, agents, succes-
sors, and assigns, shall take the action set frth in the
said recommended Order.
2 See Inrernaional Association of Machinists and Aerospace 4 orkers, San
Francisco Lodge No 68, AFL-CIO (Wesi Winds,. Inc). 227 NLRB 1522,
1525 26 1977). where the Board, in a related situation. adopted the follow-
ing language:
Given the impossibility of predicting future events and even noting em-
ployeel Kling's apparent intention not to change employment. his mere
potential for retirement benefits and yet unvested participation in the
Stationary Engineers pension plan should not warrant a deduction of
the type claimed.
In reaching this conclusion. we note that no parts has alleged that Team-
sters Local 471. party to the contract, or its applicable pension fund, which
apparently has received alternate pension payments on behalf of certain
maintenance engineers, is responsible for the reimbursement of these pay-
ments.
DECISION
STATEMENT OF IHE CASE
WILIIAM F. JAcOBs, Administrative Law Judge: This
case was heard before me on October 2 and 3. 1978 at
Minneapolis. Minnesota. The charge was filed on Decem-
ber 6, 1977, by International Union of Operating Engineers.
Local Union No. 34, AFL CIO, herein called Local 34.
The complaint issued August 30, 1978. alleging that Fair-
mont Foods Company, herein called Respondent, violated
Section 8(a)( I), (2), (3). and (5) of the National Labor Rela-
tions Act, as amended. More particularly, the complaint
alleges that Respondent violated Section 8(a)( ) and (2) by
rendering unlawful aid, assistance, and support to Milk
Drivers and Dairy Employees Union. Local No. 471, affili-
ated with International Brotherhood of Teamsters. Chauf-
feurs, Warehousemen and Helpers of America. herein
called Local 471. in that in approximately August 1977. it
unilaterally terminated its collective-bargaining relation-
ship with Local 34 and extended recognition to Local 471
245 NLRB No. 116
915
I)1(l'ISIONS OF NATIONAL. LABOR RELA IONS BOARD
as the exclusive collective-bargaining representative of its
maintenance engineer employees at a time when Local 471
did not represent an uncoerced majority of said employees
and at a time when said employees were represented by
Local 34; violated Section 8(a)l 1). (2), and (3) by condition-
ing employment at its plant in Woodbury, Minnesota, on
certain individuals having to become members of L.ocall 47 1
and by refusing to employ certain individuals because of
their membership in and support of Local 34: and violated
Section 8(a)(1} and (5) by withdrawing recognition from
Local 34, by refusing to enter into negotiations for a new
collective-bargaining agreement with Local 34 and by en-
gaging in the other acts and conduct described above. Re-
spondent, in its answer, denied the commission of any un-
fair labor practices.
All parties' were represented at the hearing and afforded
full opportunity to be heard and to present evidence and
argument. Respondent filed a brief.
Upon the entire record, my observation of the demeanor
of the witnesses, and after giving due consideration to the
closing arguments of the General Counsel and Respondent
and to Respondent's brief, I make the following:
FINDINGS OF FA(CI
:. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is and has been at
all times material herein engaged in the processing, sale,
and wholesale distribution of milk and other dairy prod-
ucts2 and maintains facilities at various locations in the
State of Minnesota including its principal office in Minne-
apolis. During the year ending December 31. 1977, Respon-
dent, in the course and conduct of its business operations,
processed, sold, and distributed at its Minnesota facilities
products valued in excess of $50,000, of which products
valued in excess of $50,000 were shipped from the said fa-
cilities directly to points located outside the State of Minne-
sota. During the same period Respondent purchased and
caused to be transported and delivered at its Minnesota
facilities, goods and materials valued in excess of' $50,000,
of which goods and materials valued in excess of $50.000
were transported to said facilities directly from points lo-
cated outside the State of Minnesota. The complaint al-
leges, the answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 34 and Local 471 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED tTNFAIR LABOR PRACTICES
A. The Facts
Prior to January 1977,' Respondent operated a milk-pro-
cessing plant on Washington Avenue in the city of Minne-
Lf ocal 471. party to the contract, was not represented.
Commerce allegations were amended at the hearing.
All dates refer to 1977, unless otherwise indicated.
apolis. Its employees were represented for purposes of' col-
lective bargaining by two unions. Teamsters Local 471
represented its 30 or 35 production employees and an equal
number of drivers. The production workers, or inside em-
plovees, received the raw milk, processed it through the
equipment, operated the bottling machines, cleaned the
equipment, loaded trucks, and were otherwise engaged in
general plant production work, Respondent's contract with
Local 471. which was in form a multiemployer agreement,
also provided for Local 471 to represent maintenance engi-
neers at those plants where they were not otherwise repre-
sented. At Respondent's plant, however, the maintenance
engineers were represented by Local 34, the unit consisting
of fibur individuals Chief Engineer Justin and engineers
Posterick. Schulte, and Bourbeau. T'heir duties included op-
eration. maintenance, and repair of the boiler and mainte-
nance and repair of the refrigeration units, bottling ma-
chines, conveyors, and other equipment.
Local 34, as of January 1977, had represented Respon-
dent's maintenance engineers for many years, the most re-
cent labor agreement covering the period June I. 1975.
through May 31, 1977. This contract contains a continu-
ation provision whereby it is to continue in effect from year
to year. unless proper notice be given by either party of its
desire to terminate, change, or amend it. The contract also
contains a union-security clause, a job-description provi-
sion, and a provision that:
The EMPLOYER shall not enter into any Agree-
ment with the Employees coming under the jurisdic-
tion of this Agreement either individually or collec-
tively, which in any' way conflicts with the terms and
provisions of this Agreement.
Thus, through this labor agreement both parties agreed to
maintain Local 34's jurisdiction over engineering mainte-
nance work.
All of Respondent's maintenance engineers were covered
by the contract between Respondent and Local 34. Of par-
ticular importance to some of them was its pension provi-
sion to which Respondent contributed. Thus, Bourbeau, an
employee of the C(ompany for almost 20 years, was a mem-
ber of Local 34 for the same period of time and had a
considerable investment in the pension plan. Posterick, an
employee of Respondent since 1961, likewise had an over-
whelming interest in protecting his investment in Local 34's
pension plan.
In January 1977 the Washington Avenue plant was com-
pletely gutted by fire. The building itself was leveled, al-
though certain pieces of equipment were still salvageable.
After the fire, Plant Manager' Keith Tuttle was immedi-
ately assigned the job of making studies for the Company to
determine what should be done about the situation. Among
the options considered, according to Tuttle, was the possi-
bility of building a new plant on the same site as the old,
building a new plant on some other site yet to be acquired,
purchasing an existing plant no longer in use, purchasing a
going business from a competitor, or simply' going out of
business. To investigate the possibility of rebuilding at the
same site, Tuttle talked with people from construction and
4 In its answer Tuttle was admitted to be plant manager. In his testimony
he testified that his title was dairy division production specialist.
916
FAIRMONT FOODS COMPANY
insurance companies with regard to the feasibility of such a
project. It was determined, however, that the Washington
Avenue property was too small to accomodate the ex-
panded facility which Respondent would require to meet
anticipated needs.
With regard to the option of finding a new site upon
which to build expanded facilities, Tuttle undertook, first of
all, to determine what properties were available in the area
which could possibly serve as building sites for a new plant.
He contacted various business and development agencies.
real estate people, as well as the Minneapolis Chamber of
Commerce, and obtained suggestions from these sources.
Though several properties appeared to have possibilities, he
was most aware of the Pixie-Pak property in Woodbury,
which seemed to have the greatest potential. Though Tuttle
did much of the investigating into the problem of acquiring
a new site and made recommendations to his superiors
based on his findings, he was not personally involved in the
ultimate decision as to what course should be taken. This
decision was made by "top level executives" who did not
testify at the hearing. As to the possibility that Respondent
might go out of the milk processing business, Tuttle testified
that there was some doubt as to the future of the industry
because of the difficulties of obtaining milk so that the
board of directors was "hesitant about committing a sizable
sum of money to this area." However, since Tuttle's "un-
derstanding" of the board of directors' feelings on the sub-
ject is all that appears in the record, and everything done by
Respondent immediately following the fire points to a firm
and definite intention to continue in business, I find, con-
trary to Tuttle's testimony on the subject, that Respondent
at no time seriously considered going out of business but
almost immediately made an affirmative decision to con-
tinue operating its business as normally as possible under
the circumstances and inconveniences resulting from the
fire, utilizing temporary expediences to do so, then continu-
ing its operation in the same or substantially the same man-
ner as it had before, but at a different location. Thus, there
is no evidence that Respondent attempted to find a buyer
for its property, salvageable equipment, trucks, garage, or
going business. Rather, as Tuttle testified, the decision was
made to "operate from day to day until we made a decision
on where we should go." To this end for the next 5 months
Tuttle looked at and made financial analyses of five loca-
tions to determine where the Company would move.
Immediately following the fire, Respondent manifested
its intention to continue in business by maintaining its fleet
of trucks in service and its full complement of drivers on its
payroll in order to continue to distribute its products. It
also made arrangements with other dairies in the area to
process and bottle its milk and other products under its own
labels and the labels of its customers for whom it had been
doing custom bottling. In this way it was able to maintain
its business as a going concern during the period that it was
attempting to acquire new facilities of its own. In order to
assure itself an adequate labor force when its new facilities
were ready, Respondent had these other dairies hire its en-
tire production force to assist them with the overflow of
production which resulted from these dairies producing Re-
spondent's line of products during the period that Respon-
dent was without production facilities of its own. Thus, Re-
spondent's employees continued to remain employed right
up until its own plant was ready to undertake full produc-
tion once again. During this period Respondent's drivers
would load up at the various dairies where its production
employees were temporarily employed and then would dis-
tribute its products to Respondent's customers, just as they
had done before the fire. They continued to work in this
fashion until the new plant was ready. All drivers and in-
side production employees, during this period, maintained
their original seniority dates, and as far as the record re-
veals. apparently remained members of Local 471. When
the new plant eventually began operations the entire com-
plement of production workers was reemployed' with the
workers original seniority rights intact.
While immediately after the fire drivers and production
workers, all members of Local 471. were given work which
reflected Respondent's intention of continuing its business,
the maintenance employees, members of Local 34, were not
given any definite indication that their future fit into Re-
spondent's plans. Immediately after the fire maintenance
employees were assigned to take care of Respondent's
trucks and their refrigerating and heating units, whether
located at Respondent's garage or at other dairies, and to
salvage equipment from the destroyed building. At the time
there were four such employees who succeeded in salvaging
three bottling machines, a paper bottling machine, five stor-
age tanks, and a caser for use at the new plant.
On February 23 Local 34 gave notice to Respondent of
its desire to reopen the contract and to negotiate changes
therein. Though at this time at least three of Respondent's
four' Local 34 maintenance employees were still actively
employed by Respondent, Respondent did not immediately
reply to Local 34's notice to reopen. It was about this time.
also, that Respondent became aware of the possible avail-
ability of the facilities in Woodbury, to which it eventually
moved. According to Tuttle, the owner of the Woodbury
property was in bankruptcy so no decision could be made
concerning its purchase until title to the property could be
cleared. Respondent continued at this time, through Tuttle,
to investigate the various options open to it, discussed in
detail above.
In late March Respondent received word from the Min-
nesota Department of Agriculture that if it decided to re-
build at its Washington Street address, all new construction
or alterations would be subject to new standards. These
new standards required more space between the various
pieces of equipment than had been the case before the fire.
The application of these new standards to the old building
made it impossible to rebuild at the Washington Avenue
facility because there was not enough room. Thus, one op-
tion was removed, and it was clear that if Respondent was
to continue in business in the area it would have to be at
some other site. At about this point in time and very likely
because it was now clear that Respondent would no longer
be operating out of its Washington Avenue facility, Re-
spondent laid off two more of its maintenance people. One
of them, Vincent Bourbeau, was advised at the time by the
chief engineer that he would be advised when to come back
5One employee chose not to return to work for Respondent.
'Tuttle testified, though not consistently on this point, tat one mainte-
nance man was laid off in February. two more in March, and that the chief
engineer left of his own volition in July
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work, after Respondent found a new building. Bourbeau,
an employee with about 20 years seniority and 17 years
invested in the Operating Engineers' pension plan, intended
to return to work for Respondent when called. Jerome
Posterick, the other employee laid off in March, was simi-
larly told by the chief engineer that he would be called back
as soon as Respondent knew what it was going to do.7
Posterick, like Bourbeau, was a long-term employee with a
substantial investment in the Operating Engineers' pension
plan. With the layoffs of Bourbeau and Posterick in late
March, Respondent was left with only one Local 34 mainte-
nance man in its employ, namely the chief engineer, Justin.
On April I, therefore, Respondent felt justified in finally
replying to Zaragoza's request for negotiations which it had
received approximately 5 weeks before. In this letter Tuttle
advised Zaragoza that there was "currently only one em-
ployee doing work in the unit covered by the Collective
Bargaining Agreement between Local No. 34 and the Fair-
mont Foods Company" and that there were "no plans for
the employment of any additional personnel to perform
such work." Tuttle in his April I letter further advised Za-
ragoza that:
A unit consisting of only one employee is inappropri-
ate for the purposes of collective bargaining and ac-
cordingly, please be advised that Fairmont Foods
Company does not plan to enter negotiations for re-
newing the expiring Collective Bargaining Agreement
with Local No. 34.
Since, according to Tuttle's own testimony, he was ac-
tively engaged at this time in searching for a new site for
Respondent's plant while servicing its customers and main-
taining its working force intact, clearly Respondent fully
intended to return to production as soon as it became feasi-
ble, upon establishment of new facilities. Tuttle must have
been cognizant of the fact when he wrote the letter that, as
soon as new production facilities were acquired, there
would be a need for maintenance personnel. Tuttle's state-
ment to Zaragoza to the contrary was, at the very least,
disingenuous.
About 2 weeks to I month after receipt of the April I
letter from Tuttle, Zaragoza telephoned him and spoke with
him concerning the possibility of continuing the contractual
relationship between Respondent and Local 34 for the
maintenance unit. Tuttle, however, told Zaragoza that the
Company was discontinuing operations and would very
likely go out of business. He further advised Zaragoza that
there was, at the time, only one employee doing bargaining-
unit work and there was therefore nothing to bargain
about. According to Zaragoza, his relationship with Tuttle
had historically always been such that he had no reason to
doubt Tuttle's word on the matter. This was the last contact
between the two. Neither Tuttle nor anyone else from man-
agement ever called Zaragoza thereafter to advise him that
Respondent intended to continue operations at a new site.
Despite Tuttle's statement to the contrary, sometime lat-
er Zaragoza heard from some of his members that Respon-
dent intended to continue its operation at a new site. Tuttle
' After his layoff Posterick returned from time to time to advise manage-
ment of his interest in returning to work for Respondent.
testified that it was in late May or early June that Respon-
dent decided that it would stay in business in the Minne-
apolis area, which would mean, since it could not rebuild at
Washington Avenue, that it had decided to continue opera-
tions at a new site. Notwithstanding Tuttle's statement on
the subject, however, I am convinced, as noted above, that
Respondent never seriously considered shutting down its
operations in the Minneapolis area. I reach this conclusion
based on the following considerations: First, immediately
after the fire Respondent did everything possible to con-
tinue in business without interruption, servicing its custom-
ers, and maintaining its work force intact. Second, Tuttle
was immediately instructed to make a thorough investiga-
tion of the various options whereby Respondent would be
enabled to continue its operation. Tuttle undertook to con-
duct these investigations as instructed and thereafter helped
prepare voluminous reports on the subject along with rec-
ommendations. Third, nowhere in the record is there docu-
mentation indicating the slightest inclination to shut down
or sell Respondent's business. Finally, no witness was pro-
duced to testify as to any discussion wherein closing down
the operation was ever given consideration.8 The reason it is
important to note that Respondent never intended to shut
down, but intended all along to continue its operation im-
mediately upon acquiring suitable facilities, is that Tuttle's
letter and statements to the contrary clearly evidence Re-
spondent's desire to mislead Local 34 and thus use the de-
struction of its Washington Avenue facility as an occasion
to rid itself of that labor organization as the representative
of its maintenance employees. Moreover, inasmuch as Re-
spondent was aware from the beginning that it fully in-
tended to continue its operation, the decrease in the number
of employees in the maintenance unit to a single working
employee had no significance, since the condition was
clearly temporary in nature and for that reason could not
be relied upon by Respondent as a basis for refusing to
bargain with Local 34 since there was no real hiatus in
employment of the unit employees as it claims. Crispo Cake
Cone Company, Inc., 190 NLRB 352 (1971): affirmed 464
F.2d 233 (8th Cir. 1972).
After being informed that Respondent intended to con-
tinue operations at another site, Zaragoza visited the Wash-
ington Avenue location. When he arrived Zaragoza found a
number of employees whom he did not recognize crating
the machines for shipment. No one, however, could tell Za-
ragoza where the machines were being shipped.
Meanwhile, Respondent had been negotiating with sev-
eral companies to buy their business and merge it with Re-
spondent's own business while at the same time negotiating
with still other business entities to possibly buy facilities no
longer in use. At the time that Zaragoza visited the Wash-
ington Avenue plant and found the machinery ready for
shipment, Respondent most probably had determined on
the Woodbury site, and was ready to undertake the move.
Justin, the last employed member of Local 34, had in mid-
July quit Respondent's employ, and it was on July 22 that a
recommendation was made to Respondent's board of direc-
tors to proceed with the purchase of the Pixie-Pak site in
Woodbury. It was reported that an option had been taken
I Tuttle merely testified as to his "understanding" as to considerations
given to this matter by unnamed "top executives."
918
FAIRMONT FOODS COMPANY
on the property and board approval was necessary before
the option could be exercised. The board met shortly there-
after, and Tuttle was directed to go ahead with negotiations
to acquire the Woodbury site. Between the last week in July
and the middle of August, Tuttle carried out the board's
directions, proceeding with the necessary steps preliminary
to acquisition. On August 15 Respondent exercised its op-
tion to purchase the Woodbury facility, with the sale to
become effective September I.
Though the sale of the Woodbury property was not to be
finalized until September , Respondent began renovation
and construction work, with the permission of the seller, a
week or so in advance. In preparation for forthcoming pro-
duction, it was also necessary to obtain maintenance help
since, as noted earlier, by this time Respondent no longer
had any maintenance employees actively working. There-
fore, in late August or early September Production Man-
ager Sha9 called Bourbeau and told him that if he wanted to
come back to work for Respondent he would have to join
Local 471 because Mr. Tuttle only wanted one union. Sha
explained that Tuttle wanted all of the engineers to join the
Teamsters. If Bourbeau joined the Teamsters, however, he
would no longer be covered by Local 34's pension plan, in
which Bourbeau had many years invested. For this reason
he felt that he could not go back to work for Respondent as
a Teamster. Bourbeau testified that if Respondent had con-
tinued to recognize Local 34 and to pay into its pension
fund, he would have gone back to work for Respondent,
though he did have some reservations about the longer dis-
tance he would have had to travel. Bourbeau told Sha that
he would think it over. Despite Bourbeau's objection to
having to join Local 471 and losing his pension benefits, he
did not voice his objections to Sha. There was no further
contact between Bourbeau and Sha. Subsequently, Bour-
beau received a letter from Tuttle in which he requested
that Bourbeau advise him whether or not he intended to
return to work for the Company. About October I, Bour-
beau took Tuttle's letter down to Respondent's offices and
spoke to its office manager, Everett Redfield. He wrote
"No" on Tuttle's letter indicating that he did not wish to go
back to work for Respondent and advised Redfield that he
did not want to return because Respondent required him to
join Local 471. As noted above, Bourbeau took this posi-
tion because he had already had 17 years paid into the
pension fund and wanted to get 20. He also objected, to
some degree, to the distance he would have to travel to the
new location, although he testified credibly elsewhere that if
Respondent had continued to recognize Local 34 he would
have gone back to work for Respondent. As it was, Bour-
beau did not accept reemployment with Respondent which
had been conditioned upon his joining Local 471.
About the same time that Sha first contacted Bourbeau
to offer him reemployment on condition that he join Local
471, Charles Bernhagen was working at the Washington
Avenue facility as an employee of Excelo Equipment, reju-
venating Respondent's machinery. He was, at that time,
approached by Sha and Harry Ryan, his assistant, who dis-
cussed with him possible employment with Respondent.
Bernhagen was later actually hired by Tuttle, effective Sep-
9 Also appearing in the record as Shaw.
tember 19. Tuttle had known Bernhagen from working with
him many years before and decided that his 20 years of
experience with Excelo, working on bottling machinery,
would make him a very valuable employee as maintenance
supervisor with Respondent, replacing Justin. When Tuttle
hired Bernhagen it was, according to Bernhagen, part of the
agreement that he would go into Local 471, and this agree-
ment was even to cover the period of time when Bernhagen
was initially employed by Respondent at the Washington
Avenue address. Since Bernhagen was a member of Local
471 anyway, on withdrawal at the time, it was apparently
no great hardship for him, since all he had to do was to
resume his active status in that union.
In early August Jerome Posterick, still on layoff from
Respondent, visited its Washington Avenue plant and
asked Plant Manager Striegel for work. Striegel agreed to
put Posterick back to work but advised him that he would
have to join Local 471, without explaining why this was
necessary. Posterick replied that although he did not like
having to join Local 471 in order to get the job, he would
nevertheless do so. Despite Posterick's discussion with
Striegel, nothing happened for several weeks. Therefore,
Posterick visited the plant for a second time and talked with
Ryan, who advised Posterick that he would try to set up a
meeting between Posterick and Tuttle. About the third
week in August the meeting between Posterick and Tuttle
took place at Respondent's division office. Sha was also
present. At this meeting Tuttle advised Posterick that he
could go back to work and start at the Washington Avenue
location, but in order to do so, Posterick would have to
agree to join Local 471. Posterick agreed. Shortly there-
after, Posterick began work at the old location for I week
on a part-time basis. On September I he began on a full-
time basis. While employed at Washington Avenue, Poste-
rick continued to do salvage work as well as repair work on
machinery and bottling equipment. The salvaged equip-
ment was being sent to the Woodbury plant. Posterick was
actually the first maintenance employee put back to work
after the last man left in July. Posterick worked at Washing-
ton Avenue until November, at which time he was trans-
ferred to Woodbury.
In October William Richardson applied for work as a
maintenance engineer at Respondent's location at Wash-
ington Avenue and spoke with Bernhagen, who had by that
time been hired as the new maintenance supervisor. His
intention was to work at Respondent's new plant at Wood-
bury, and to this end he supplied Bernhagen with a re-
sume.'0 At the time, workers were still engaged in salvage
work. Richardson, at this time employed on another job
which he expected to end soon, advised Bernhagen of his
intention of finding another job to which he could go from
'o The above account is based on the testimony of Richardson whom I
found to be credible. Bernhagen's account differed in certain respects from
that of Richardson. Where their accounts differ, I credit Richardson's be-
cause his memory seemed far more acute than Bernhagen's. The latter, for
example, testified as follows:
Q. Can you remember what was said?
A. No, I don't. not word for word.
Q. Can you remember him asking for employment?
A. Not directly.
Q. Do you remember ever making an offer to him?
A. Not a direct offer.
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there. Bernhagen took Richardson to Respondent's tempo-
rary office where he made a copy of his resume because, as
Bernhagen testified, "We did have an opening. We were
looking for a man." But Bernhagen did not have the final
authority to hire. This decision was Tuttle's. Bernhagen
therefore forwarded Richardson's resume to Tuttle.
In November Richardson was laid off at his other job
and so contacted Bernhagen once again, this time by tele-
phone, concerning obtaining employment with Respondent.
Bernhagen advised Richardson that his resume had been
forwarded to Tuttle and that Tuttle or someone else would
contact him. No one did, however, so Richardson called
Tuttle, and an interview was arranged. Thereafter, Richard-
son met with Tuttle at the latter's office late in November.
During the conversation which ensued Tuttle advised Rich-
ardson that one of the conditions for his obtaining employ-
ment with Respondent was that he would have to join
Teamster's Local 471. Richardson when advised of this told
Tuttle that he would have to give the matter some consider-
ation because he had quite a bit of money tied up in the
Operating Engineers' pension fund." Tuttle supplied Rich-
ardson with an employment application and told him to
take it home with him, fill it out, bring it back, and advise
Tuttle of his feelings about working for Respondent. Rich-
ardson did as Tuttle asked, but during their second conver-
sation he advised Tuttle that he would not be "comfort-
able" with Local 471. Tuttle advised Richardson that until
he made up his mind on the Local 471 issue there was
nothing further to discuss between them. In short, Tuttle
told Richardson that unless he was willing to join Local 471
he would not be hired. Subsequently, Richardson went to
Local 34 and talked to Zaragoza about the situation and
about what Tuttle had said. He then asked Zaragoza to
listen in while he called Tuttle on the telephone. When
Tuttle answered the phone, Richardson asked him what
was happening with the job. Tuttle replied that when Rich-
ardson decided to join Local 471 he could go to work. Rich-
ardson replied that he was not interested in joining the
Teamsters, that he wished to remain in the Operating Engi-
neers. Tuttle replied that it was Richardson's decision to
make, and as long as that was his decision there was noth-
ing more for them to talk about. Tuttle testified: "I never
offered him a job as such because this other question (Rich-
ardson's acceptance of membership in Local 47 1) had never
come up and had never been answered."'"
I" Richardson was a member of Operating Engineers Local 36. However,
money invested in the pension fund of one local of the Operating Engineers
is transferable to another of its locals. It is not, however, transferable from
the Operating Engineers' pension fund to the Teamsters' pension fund.
12 Richardson had already been to his own union, Operating Engineers
Local 36, and had been told by the business agent there that Local 34 would
have jurisdiction over the Woodbury plant.
" The quoted testimony was given the first day of the hearing. The second
day of the hearing Tuttle was recalled to the stand and changed his testi-
mony stating, "Well, after I reviewed his work record which showed ....
Based on that work record, no, we would not have offered a position ....
Because the number of job changes that had taken place over the last eight
or nine years." I accept Tuttle's original testimony as quoted in the text and
reject his reconstructed testimony as appears in this footnote as incredible.
Richardson was clearly rejected because of his refusal to join Local 471. 1
doubt seriously that Tuttle ever gave consideration to Richardson's applica-
tion upon which his previous employment was listed and to which Tuttle
claimed to have objections. Tuttle testified that he could not recall discussing
Sometime later, in December, Richardson visited the
Woodbury plant and talked with Bernhagen who showed
him through the plant. Bernhagen told Richardson that it
was "up in the air whether the Teamsters were going to
represent the engineers and the maintenance people or
whether Local 34 of the Operating Engineers was going to
represent them. ' Nevertheless, Bernhagen offered Richard-
son the job, stating that he could come to work anytime but
that he would have to join Local 471. Once again, Richard-
son replied that he could not afford to lose his pension
rights in the Operating Engineers' plan. For that reason he
wished to remain a member and be represented by that
labor organization.
In November, Bernhagen called Harold Torkelson, an
employee of Cooler Mix Specialities and a member of Local
471, and discussed with him the possibility of his working
for Respondent where Bernhagen was employed at the
time. Bernhagen advised Torkelson that Tuttle and Striegel
would like to discuss the matter with him. Torkelson agreed
and, after first being interviewed by Bernhagen, was then
interviewed by Tuttle. He was hired on December 2 by
Tuttle on Bernhagen's recommendation. He was paid in
accordance with the scale which appears in Local 471's
contract, and dues were deducted from his paycheck. Thus,
through the hiring of Bernhagen, Posterick, Richardson,
and Torkelson, Respondent filled the required complement
of maintenance engineers.
While Respondent, between August and December, was
hiring employees to do the maintenance work, it did noth-
ing concerning contacting Local 34 about this matter. On
October 12 Zaragoza wrote a letter to Tuttle stating that
since Respondent now had two or more engineers working,
it should enter into negotiations with Local 34 toward a
new contract. Zaragoza enclosed a contract proposal. De-
spite the fact that Bernhagen and Posterick were on the
payroll at the time and Respondent was looking for addi-
tional maintenance employees, Tuttle replied to Zaragoza
by letter dated October 19 stating that it only employed one
maintenance employee, and since a one-man unit was inap-
propriate it would not bargain.
Thereafter, Zaragoza contacted Tuttle by telephone and
had several conversations with him.' Initially, Tuttle took
the same position as he had in his letter, namely that the
maintenance crew had but one member in it and Respon-
dent did not have to bargain because a one-man unit is
inappropriate. In the same or a subsequent conversation, in
late October or early November, Tuttle brought up the sub-
ject of Local 34's geographical jurisdiction and stated that
Operating Engineers Local 36 had jurisdiction in Wood-
bury. He noted this fact as further justification for refusing
to recognize Local 34, stating that even if he wanted to
recognize Local 34, he could not do so. Zaragoza argued
Richardson's previous employment with him but admitted that he appeared
to have the background experience to do the job.
t4The charge in the instant proceeding was filed on December 6 and
perhaps gave rise to the statement.
1" Although Zaragoza testified that he had more than one conversation
with Tuttle on a one-to-one basis and a conference call as well, his testimony
makes it appear that everything allegedly said to him by Tuttle occurred
during one conversation. Record documentation and time references, how-
ever, support the conclusion that there were several telephone conversations
with different subjects discussed and different positions taken by Tuttle dur-
ing these various conversations.
920
FAIRMONT FOODS COMPANY
that since Local 34 was following the Company, it would
have jurisdiction, but, in any, case, it would request a release
from Local 36 to overcome the jurisdictional problem. As a
matter of fact, Local 36 did have jurisdiction in Woodbury,.
so after his conversation with Tuttle, Zaragoza contacted
Local 36 and on November 10 obtained written authoriza-
tion from Business Manager Ervin Barrett authorizing Io-
cal 34 to represent Respondent's employees at its Wood-
bury operation. A few days later Zaragoza mailed a copy of
this release to Tuttle. In early December'6 Zaragoza again
contacted Tuttle by telephone and referred to the release,
commenting that it resolved the issue of jurisdiction and
that negotiations concerning the maintenance engineers
should commence. He also informed Tuttle that he under-
stood that Respondent had hired additional engineers plus
an engineer-in-charge.' Tuttle conceded that he had hired
additional maintenance engineers but stated that the issue
was moot because they were members of Local 471, and
therefore Respondent did not have to recognize Local 34 as
their bargaining agent, and had, in fact, already recognized
the Teamsters as their representative. He noted that the
classification of maintenance engineer appeared in the
Teamsters' contract and on this basis could properly recog-
nize that labor organization as the maintenance engineers'
bargaining representative at Woodbury. On December 6
Zaragoza filed the instant charge.
Production began at Woodbury in January 1978. As
noted previously, Local 471 drivers had never been laid off,
while Local 471 production workers who had been tempo-
rarily emloyed at other dairies where Respondent's product
was being bottled between January 1977 and January 1978
were phased into the Woodbury operation in accordance
with seniority. Essentially, the operation at Woodbury was
the same as at Washington Avenue. Respondent was again
engaged in the processing, bottling, and distribution of
dairy products to the same customers that it had serviced
from the Washington Avenue plant. Granted, much of the
materials-handling equipment at Woodbury was brand
new, while only a few pieces of machinery were shipped to
that site from Washington Avenue, nevertheless, except for
the fact that the new equipment was more sophisticated
and more automated, the operation was basically the same
at Woodbury as it had been before the move. Tuttle testi-
fied that maintenance of the new equipment was less de-
manding than maintenance of the old equipment used at
Washington Avenue. Clearly then, any of the maintenance
engineers who were capable of maintaining the old equip-
ment could also do the necessary work maintaining the new
equipment. Though Tuttle testified that Respondent, in hir-
ing or rehiring employees to do the maintenance work at
the new establishment, chose people that he felt had a good
16 Although Zaragoza testified that this conversation occurred in late Octo-
ber or November, it appears more likely that it occurred in early December.
I make such finding based on the fact that in the conversation reference is
made to Respondent's employing more than one maintenance engineer plus
an engineer-in-charge, and Torkelson, the third maintenance engineer hired.
was not hired until December 2. Moreover, Tuttle referred in this conversa-
tion to the fact that Respondent had recognized Local 471 as the represent-
ative of the maintenance engineers, and the charge filed against Respondent
on December 6 alleges such recognition as having occurred on December 2
i The engineer-in-charge is a classification historically covered by lxcal
34's labor agreements with Respondent.
work record with the Company and the capability to han-
dle the maintenance of the new sophisticated equipment
which was being installed, he admitted that his failure to
recall the Local 34 maintenance emploees who had
worked at Washington Avenue to work at the new plant in
Woodbury had nothing to do with their ability to do the
job. Further, employees who testified on the subject agreed
that the work performed at Woodbury was essentially the
same as done at Washington Avenue. Finally, it was admit-
ted by Respondent, through its attorney, that Respondent
wanted ocal 471 employees to do the maintenance work at
Woodbur) rather than Local 34 employees because it was
easier to operate a plant with one union than with two
unions. As the testimony indicates, maintenance employees
who were members of Local 471 at Woodbury could and
did relieve other Local 471 employees doing production
work and could and did unload trucks, whereas in the old
plant Local 34 employees were not permitted to do Local
471 work nor were Local 471 employees permitted to do
Local 34 work. Tuttle testified that the new one-union ar-
rangement permitted much more flexibility, there was less
friction among employees, and it effectively reduced labor
costs. I find, on the basis of Tuttle's own testimony, as well
as that of other witnesses, that Respondent's decision to
recognize Local 471 as the representative of its maintenance
employees was based on its desire to have all its employees
represented by a single union, and that its failure to con-
tinue to employ members of Local 34 and to hire certain
other employees was due primarily, if not exclusively, to the
unwillingness of these individuals to join Local 471, and not
to their inability to perform the duties required of them at
the new plant.
Respondent not only refused to recognize and bargain
with Local 34, and not only recognized, bargained with.
and applied Local 471's contract to the maintenance engi-
neers at Woodbury, but sought to have those employees
join Local 471. Thus, Striegel, Tuttle, and Ryan all talked
to Posterick about his having to join Local 471 and, in fact,
did so several times before the relocation took place. In
October, Tuttle asked Posterick if he had joined Local 471.
Posterick replied negatively, and Tuttle said nothing more
at the time. Shortly thereafter, Ryan told Posterick that it
would be a good idea for Posterick to join Local 471. Poste-
rick did not reply. In November, after Posterick moved to
the Woodbury plant, Tuttle again asked Posterick if he had
joined Local 471. Posterick again told Tuttle that he had
not yet done so because he had been too busy. Tuttle told
him to do so as soon as possible. In late November or early
December while Posterick was on duty. Tuttle once again
approached him and asked him if he had joined Local 471.
When Posterick replied that he had not done so, Tuttle
directed him to put in an application. He added that if he,
Tuttle, could tell Zaragoza that the members of Local 34
were either Teamsters or had applied to become members
of Local 471, he would quit coming around. Once again
Posterick said nothing. Thereafter, after production began,
Striegel, on two or three occasions. asked Posterick if he
had joined Local 471. Posterick advised him that he had
not. Striegel said nothing.
In June or July 1978 Tuttle and Striegel spoke to Poste-
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rick and another employee, a mechanic named Larson,' 8 to
get them once again to join Local 471. Both Posterick and
Larson pointed out that they were too old to get their 10
years into Local 471's pension fund in order to obtain a
vested interest, and, of course, Posterick did not want to
lose his investment in the Operating Engineers' pension
fund. They asked for a meeting to find a solution. Tuttle,
either at this meeting or another one held at about the same
time, told Posterick that he would be talking to Bob Moran,
Local 471's business agent, and would discuss with him the
matter of Posterick's investment in Local 34's pension
plan.'9
One day in July or August 1978 Posterick was told by
Duane Solberg, shop steward for Local 471, and an em-
ployee of Respondent, to go into Striegel's office where
there was going to be a meeting with Moran. When Poste-
rick entered Striegel's office he found Moran seated behind
Striegel's desk. Present also were Moran's assistant (un-
named), Production Supervisor Sha, Solberg, and Larson.
Posterick and Larson explained to Moran that the problem
with the pension plan was the reason why they were reluc-
tant to join Local 471. Moran acknowledged that a problem
existed and told them that he would see what he could do,
and would let them know. He added that if he could not do
anything for them, then he could see no reason to take them
into the union. Sha, the only member of management pre-
sent during the meetings, did not speak. The meeting then
broke up and Posterick never heard from Moran or from
Local 471 again with regard to his having to join the Team-
sters.
B. Position of the Parties
Analysis and Conclusion
Respondent maintains that there was a fire at its Wash-
ington Avenue plant which totally demolished its produc-
tion facilities and that the entire catastrophe was beyond its
control. The record supports Respondent's contention. Re-
spondent further maintains that because of the interference
with its Washington Avenue production facilities, Respon-
dent's production was halted. The record on this score does
not, however, support Respondent. On the contrary, the
record indicates that after the fire Respondent immediately
undertook steps to make certain that production continued.
Thus, it sought and obtained the agreement of certain of its
competitors to permit the processing and bottling of its milk
and milk products at its competitor's plants with little, if
any, interruption to its service to its customers. That service
was continued without interruption and was made possible
by an agreement with these competitors whereby they
agreed to hire Respondent's entire complement of produc-
'' Larson had been a member of the International Association of Machin-
iull.
19 According to Tuttle, he also told Posterick that if there were any prob-
iem with Posterick's Local 34 pension, Respondent "was willing to go any
direction on it"; that Respondent would make the deduction and mail it in
for him; that Respondent would "do it any way we could so it would be
taken care of; that Postenck could remain in Local 34 and the rest of our
employees would be in 471." The record, however, does not indicate that
anything was done with regard to Posterick's Local 34 pension rights despite
Tuttle's alleged promises.
tion workers to make certain that production would not flag
and to make equally certain that the complement of pro-
duction workers would remain intact, so that when Respon-
dent found new facilities to continue production, it could
do so with little if any disruption of production. Similarly.
Respondent maintained its entire complement of truckdriv-
ers on its own payroll to insure distribution of its product.
All production employees and drivers had been members
and were to be continued as members of Local 471, Team-
sters. While all employees who had been members of Local
471 were maintained by Respondent as a productive entity
for future use when new facilities were eventually found,
Respondent took no pains to keep intact its complement of
maintenance engineers, all of whom were members of: and
represented by, Operating Engineers. On the contrary,
though these employees were kept on the payroll temporar-
ily for the purpose of salvaging equipment damaged in the
fire or to service Respondent's trucks temporarily assigned
to pick up its products at its competitors' dairies where they
were being produced, Respondent did not make any effort
to maintain the engineers' unit as an intact body or to ser-
vice its equipment at its future site, but specifically re-
frained from advising those employees and their represent-
ative, Local 34, of its future plans. Clearly, it did so in order
to rid itself of Local 34 as the bargaining representative of
its maintenance engineers. Inasmuch as the record is replete
with evidence that Respondent, at all times, intended to
continue its business and at no time seriously considered
going out of business, it is likewise perfectly clear that Re-
spondent was aware that when it was successfully relocated
it would be in need of maintenance personnel at its new
location. Therefore, the layoff of its maintenance personnel
at Washington Avenue was temporary in nature, the unit
remained intact, there was no hiatus as Respondent con-
tends, and the duty to bargain with the representative of the
employees in that unit,20 Local 34, remained a continuing
obligation."
Since Local 34 remained the bargaining agent of the em-
ployees in the maintenance engineers' unit, it was incum-
bent upon Respondent to bargain with Local 34 concerning
their jobs at the new site. Indeed, Respondent was asked on
several occasions to do so but admittedly refused. This was
clearly in violation of Section 8(a)(5) and (). Jack Lewis
and Joe Levitan db/la California Footwear Companyv, 114
NLRB 765 (1955) affd. as modified, 246 F.2d 886 (9th Cir.
1957). Moreover, when Respondent refused to bargain with
Local 34 concerning the effect of the plant relocation on the
maintenance unit, a presumption arose that if given the
chance a majority of the employees would have accepted
positions at the new plant. California Footwear, supra. This
presumption, applicable to the facts in the instant case, con-
sequently requires a finding that the union which repre-
"2 It follows that if Respondent had a continuing duty to bargain with
Local 34 with regard to the employees in the maintenance unit, no such duty
arose to bargain concerning these same employees with Local 471. as Re-
spondent contends.
21 Crispo Cake Cone Company, Inc., supra, Respondent's reliance on Na-
tional Dairy Products Corporation. Sealresi Southern Dairies Division, 127
NLRB 313 (1960) is misplaced. In that case the unit in question, unlike that
in the instant case, was permanently dissolved.
922
FAIRMONT FOODS COMPANY
sented the employees at the old plant continues to do so at
the new location. 22
Respondent argues that its refusal to bargain concerning
the transfer rights of its employees to the new location was
not born of animus but of purely legitimate economic con-
siderations. Granting, arguendo, that such, in fact. was the
motive, it does not excuse Respondent, for the Board has
stated in situations of this kind that a refusal to allow em-
ployees to transfer to a new location to work under basi-
cally the same working conditions ' as they had at the old
plant constitutes conduct which would appropriately fall
within the ambit of the "inherently destructive of employee
interest" conduct adverted to by the Supreme Court in
N. L. R. B. v. Great Dane Trailers, Inc. 24 A Ilied Mills. Inc., 218
NLRB 281 (1975), affd. 534 F.2d 417 (D.C. Cir. 1976).
Thus, the absence of animus or the presence of economic
motive does not cancel out the violation or immunize Re-
spondent from the consequences of its act. Helrose Bindery.
Inc, supra, Los Angeles Marine Hardware Co., a Division of
Mission Marine Associates, Inc; 235 NLRB 720 (1978).
Consequently, I find that Respondent, by refusing to bar-
gain with Local 34 as the exclusive bargaining representa-
tive of its maintenance engineers, by withdrawing recogni-
tion from Local 34 as representative of said employees, and
by refusing to enter into negotiations with Local 34 for a
new collective-bargaining agreement, violated Section
8(a)(5) and (1) of the Act.
Respondent admits that it recognized Local 471 as the
exclusive bargaining representative of its maintenance engi-
neers at its Woodbury location. However, I have found that
at the time it recognized Local 471 for said purposes Local
34 was, in fact, the lawful exclusive bargaining representa-
tive of said employees. Respondent has therefore rendered
unlawful assistance and support to Local 471 and, by said
action, violated Section 8(a)(2) and (1) of the Act, and I so
find. For clearly, there was no basis for Respondent to ig-
nore the prior existing appropriate unit represented by Lo-
cal 34, which was validly rooted in contract bargaining his-
tory, simply because it was more convenient for
Respondent to deal with one union rather than two. Fraser
& Johnson Company, 189 NLRB 142 (1971), modified 469
F.2d 1259 (9th Cir. 1972); International Paper Company,
150 NLRB 1252 (1965). It follows, then, that when Respon-
dent applied the Local 471 contract and all of its provisions
to the employees in Local 34's maintenance engineers unit,
it unlawfully assisted Local 471 in violation of Section
8(aX2) and (1) of the Act. International Paper Company.
supra.
12 Helrose Bindery, Inc. and Graphic Arts Finishing, Inc., 204 NLRB 499
(1973).
U The facts clearly indicate that although the equipment at the new plant
is somewhat more sophisticated, the operation, organization, supervisory
hierarchy, end product, and number of employees in the unit at the new
plant remain substantially the same as at the old plant. The distance between
the two plants is only about 12 miles. Under these circumstances the opera-
tion at the new plant is merely a continuation of the operation at the old
plant, and Respondent, by its unlawful refusal to bargain concerning the
contemplated move, particularly with respect to the placement of the Wash-
ington Avenue maintenance engineers in positions at its Woodbury location,
precluded any such result and thereby violated the Act. The Cooper Ther-
momnter Conpan,, 160 NLRB 1902 (1966), modified 376 F.2d 684 (2d. Cir.
1967). Tricor Products, Inc and/or C & J Pattern Co., 239 NLRB 65 (1978).
388 U.S. 26 (1967).
Similarly, by withdrawing its recognition from Local 34
and refusing to bargain with it concerning the rights of its
maintenance engineers to transfer. Respondent denied
those employees their right to work, a matter of basic inter-
est and of supreme importance to these workers. The action
of Respondent in cutting off that supremely important em-
ployee right, the right to work, violated Section 8(a)(3) and
(1), and I so find. ooper hermometer, supra, Allied Mills.
Inc.. supra.
With regard to Respondent's acts involving its treatment
of individual employees and prospective employees, I find
that when in late August or early September Sha called
Bourbeau. who was then in layoff status, and conditioned
his recall on his having to give up his membership in Local
34. Bourbeau was faced with the choice of quitting his job
to protect his 17-year investment in the Operating Engi-
neer's pension fund as well as his status in that labor or-
ganization or joining Local 471 and working without the
representation to which he was entitled. Being faced with
this unlawful demand on the part of Respondent, Bourbeau
chose loyalty to his chosen representative. Since Bourbeau's
unfortunate predicament was occasioned by Respondent's
unlawful refusal to recognize and bargain with Local 34.
Bourbeau's legitimate representative. he was clearly con-
structively discharged in violation of Section 8(a)(3) and ( I)
of the Act. Tricor Products, Inc., supra. Respondent's at-
tempt to unlawfully force Bourbeau to make the choice was
independently as well as derivatively violative of Section
8(a)(1), and inasmuch as it assisted Local 471 in disregard
of the rights and wishes of the majority of its maintenance
engineers represented by Local 34, it also violated Section
8(a)(2).
I also find that that when, in early August, Posterick once
again asked Respondent for work and was told by Plant
Manager Striegel that he would put him back to work only
if he joined Local 471, Respondent again violated Section
8(a)(1) and (2) because, by its action, Respondent assisted
Local 471 and also interfered with, restrained, and coerced
employees with respect to their rights to a free and uninhib-
ited selection of their collective-bargaining representative.
Repeated violations occurred when several weeks later
Tuttle made the same conditional offer of employment.
Similarly, after Posterick was recalled to work by Respon-
dent, each time he was unlawfully pressured to join Local
471 there were additional violations of Section 8(a)(1) and
(2).
When in November Richardson applied for employment
with Respondent and was advised by Tuttle that he would
have to join Local 471. Respondent again violated Section
8(a)(2) and (1) for the same reasons enumerated above as
applied to the incidents involving Bourbeau and Posterick.
When shortly thereafter Richardson advised Tuttle that he
would not feel comfortable with Local 471, Tuttle told
Richardson that until he made up his mind on the Local
471 issue there was nothing further to discuss between
them.' Thus, I find that Richardson was denied employ-
ment by Respondent solely because he would not join Local
:' Tuttle subsequently refused, for a second time, to hire Richardson when
for the same reason he told him by telephone that until he agreed to join
Local 471 there was nothing for them to talk about.
923
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
471. By this act Respondent violated Section 8(a)(3) and (I)
because Respondent, in rejecting Richardson's application,
was attempting to enforce the nnion-security provision con-
tained in its agreement with Local 471. which provision did
not comply with the proviso to Section 8(a)(3) inasmuch as
Local 471 was not, at the time, the representative of the
employees in the appropriate unit then represented by Lo-
cal 34. Helrose Bindery, Inc., supra.
To summarize, I have found Respondent in violation of
Section 8(a)(5) and () by refusing to bargain with Local 34
concerning the transfer of its maintenance engineers from
the old plant to the new site, by its withdrawal of recogni-
tion of Local 34 as the collective-bargaining representative
of its maintenance engineers at the new site, by its refusal to
bargain with said labor organization with respect to rates of
pay, wages, hours of employment, and other terms and con-
ditions of employment of said employees at the new site,
and by its refusal to enter into negotiations with said labor
organization for the purpose of negotiating a new collec-
tive-bargaining agreement covering said employees. I have
further found Respondent in violation of Section 8(a)(2)
and (I) of the Act in that it rendered unlawful support and
assistance to Local 471 by recognizing that labor organiza-
tion as the exclusive collective-bargaining representative of
its unit of maintenance engineers at a time when said unit
of employees was lawfully represented by Local 34, by ap-
plying the Local 471 contract including its union-security,
checkoff, and other provisions to the employees in said unit,
and by unlawfully insisting that job applicants and employ-
ees join Local 471 in order to obtain or maintain employ-
ment with Respondent. I have also found that when Re-
spondent refused to bargain with Local 34 concerning that
transfer of its maintenance engineers, it effectively denied
them employment in violation of Section 8(a)(3) and (I) of
the Act. Similarly, I have found Respondent in violation of
Section 8(aX 3) and (1) of the Act when it constructively
discharged Bourbeau by refusing to recall him unless he
first agreed to join Local 471 and refused to hire Richard-
son unless he first agreed to join Local 471. Respondent's
statements to Bourbeau, Richardson, and Posterick that
they would have to join Local 471 in order to obtain or
maintain employment with Respondent and its continued
and repeated unlawful insistence that Posterick join that
labor organization, I have found to be independently viola-
tive of Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent as described in section 1, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (2), (3),
and (5) of the Act, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative
action designed to effectuate the policies of the Act.
With regard to the 8(a)(5) allegations. I shall recommend
that Respondent, upon request. bargain collectively with
Local 34 concerning the effects upon the represented em-
ployees of the plant relocation from Washington Avenue to
Woodbury, particularly the transfer rights of such employ-
ees. and further that Respondent recognize and, upon re-
quest, bargain collectively with Local 34 as the exclusive
bargaining representative of the employees in the unit com-
prised of maintenance engineers, herein found appropriate.
at the Woodbury plant. pursuant to the previous existing
contract at the Washington Avenue location, both as to
wages, hours, and conditions of employment at the Wood-
bury location, as well as toward a new contract covering the
employees in said unit. Moreover, I shall recommend that.
during the period of negotiation toward a new contract.
Respondent be ordered to maintain in effect its collective-
bargaining agreement with Local 34 which was in force at
Respondent's Washington Avenue plant at the time of relo-
cation. 26 unless the parties mutually agree to do otherwise,
and to apply the provisions of said collective-bargaining
agreement to all employees who were members of the bar-
gaining unit at the time of the fire, including the provisions
of said agreement, if any, applicable to laid-off employees.
as well as to all employees in the unit as it exists at the
Woodbury location.
With regard to the 8(a)(2) violations, I shall recommend
that Respondent be ordered to withdraw recognition from
Local 471 as the exclusive collective-bargaining representa-
tive of the employees in the maintenance engineers unit at
its Woodbury plant and to cease and desist from giving
effect to its collective-bargaining agreement to the extent
that it purports to cover employees in said unit.27 I shall
further recommend that Respondent cease and desist from
unlawfully insisting that job applicants or employees join
Local 471 in order to obtain or maintain employment with
Respondent in the maintenance-engineers unit.
With regard to the 8(a)(3) violations, I shall recommend
that Respondent offer the maintenance engineers repre-
sented by Local 34 at Washington Avenue, who were termi-
nated as a result of Respondent's unlawful actions, immedi-
ate reinstatement at the Woodbury plant, in their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges. In addition. I
shall recommend that Respondent be required to make
whole each of the aforementioned employees for backpay
from the date of the discrimination against them2 to the
date that Respondent offers reemployment to them in com-
pliance with the instant decision, with backpay and interest
thereon to be computed in the manner prescribed in F. W.
2The contract in question contained an expiration date of' May 31, 1977.
It contained an automatic year-to-year extension clause which would have
gone into effect had not Local 34 made a timely request for negotiations to
change or amend its provisions.
2 However, nothing in this recommendation shall require Respondent to
vary or abandon any wage, condition of employment, or other benefit which
has been accorded to these employees under the Local 471 agreement, or
prejudice the assertion by these employees of any rights they may have
thereunder. Fraser and Johnston C(ompan. supra.
29 The date Respondent, but for its unfair labor practices, would have
recalled them to work at Woodbury.
924
FAIRMONT FOODS COMPANY
Woolworth Company, 90 NLRB 289 (1950). and Florida
Steel Corporation, 231 NLRB 651 (1977)."29 Inasmuch as
Bourbeau is a member of Local 34 and is included in the
unit represented by that labor organization, the separate
violation of 8(a)(3) in which he was personally involved will
best be remedied by application to him of the above rem-
edy, as is generally applicable to all employees in the unit.
Similarly, with regard to the separate 8(a)(3) violation in-
volving Richardson. I shall recommend that Respondent
offer to him immediate employment as a maintenance engi-
neer or a similar or substantially equivalent position. Like-
wise, I shall recommend that Respondent be required to
make him whole because of the discrimination against him,
with backpay to be computed in the manner described
above. Section 8(a)(1) violations, independent as well as de-
rivative, and all other violations heretofore treated should
be the subject of an appropriate notice, and it is so recom-
mended.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCI.SIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Local 34 and Local 471 are labor organizations within
the meaning of Section 2(5) of the Act.
3. All maintenance engineers employed by Respondent
at its facility formerly located at 3836 Washington Avenue
North, Minneapolis, Minnesota, and subsequently relo-
cated at 1930 Wooddale Drive, Woodbury. Minnesota, ex-
cluding all other employees, office clerical employees, pro-
fessional employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Local 34, at all material times, has been and is now
the exclusive representative of all the employees in the
above-described unit for purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
5. By refusing to bargain collectively with Local 34 as
the exclusive representative of the employees in the above-
described bargaining unit at its Washington Avenue, Min-
neapolis plant, concerning the effects upon such employees
of the removal of the plant and their possible transfer to the
Woodbury, Minnesota, plant; by its withdrawal of recogni-
tion from Local 34; by its refusal to bargain with said labor
organization with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment of the employees in the unit at the Woodbury, Minne-
sota, plant; and by its refusal to enter into negotiations with
said labor organization for the purpose of negotiating a new
collective-bargaining agreement covering said employees,
Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (I1) of
the Act.
6. By rendering unlawful support and assistance to Local
471 by recognizing that labor organization as the exclusive
2See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
bargaining representative of its unit of maintenance engi-
neers at a time when said unit of employees was lawfully
represented by Local 34, by applying the Local 471 labor
agreement including its union-security, checkoff, and other
provisions to the employees in said unit, and by unlawfully
insisting that job applicants and employees join Local 471
in order to obtain or maintain employment with Respon-
dent, Respondent violated Section 8(a)(2) and (1) of the
Act.
7. By refusing to bargain with Local 34 concerning the
transfer of its maintenance engineers, Respondent effec-
tively denied them employment in violation of Section
8(a)(3) and (1) of the Act.
8. By refusing to recall Vincent Bourbeau to work unless
he would first agree to join Local 471, Respondent con-
structively discharged him in violation of Section 8(a)(3)
and (1) of the Act.
9. By refusing to hire William Richardson unless he
would first agree to join Local 471, Respondent violated
Section 8(a)(3) and (1) of the Act.
10. By stating to various prospective employees and em-
ployees that they would have to agree to join or maintain
membership in Local 471 in order to obtain or maintain
employment with Respondent, Respondent violated Sec-
tion 8(a)(1) of the Act.
II11. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDERS
The Respondent, Fairmont Foods Company, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
International Union of Operating Engineers, Local Union
No. 34, AFL-CIO, with regard to the employees in the
appropriate unit which it represents concerning:
i. The transfer of employees from the Washington Ave-
nue, Minneapolis plant to the Woodbury plant;
ii. The rates of pay, wages, hours of employment, and
other terms and conditions of employment at the Wood-
bury plant:
iii. A new collective-bargaining agreement covering said
employees at the Woodbury plant.
(b) Recognizing Milk Drivers and Dairy Employees
Union, Local No. 471, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America as the representative of any of its employees
in the appropriate bargaining unit described above, for the
purpose of dealing with Respondent concerning grievances.
labor disputes, wages, rates of pay, hours of employment,
both until Respondent has complied with the provisions of
this Order requiring it to bargain with International Union
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Operating Engineers, Local Union No. 34, AFL-CIO,
and thereafter, unless and until Teamsters Local No. 471
shall have been certified by the Board as representative of
any such employees.
(c) Giving any force or effect to Respondent's collective-
bargaining agreement with Teamsters Local No. 471, sup-
plements or addenda thereto, covering Respondent's em-
ployees at the Woodbury plant, in the appropriate unit de-
scribed above, or to any modification, extension, or renewal
of such agreement, provided, however, that nothing herein
shall require Respondent to vary or abandon any wage,
hour, seniority, or other substantive benefit accorded by
Respondent to said employees under said agreement, or
prejudice the assertion by said employees of any rights they
may have thereunder.
(d) Giving effect to the checkoff authorizations executed
by employees in the unit described above in favor of Team-
sters Local No. 471.
(e) Encouraging membership in Teamsters Local No.
471, or any other labor organization, or discouraging mem-
bership in Operating Engineers, Local No. 34 or any other
labor organization, by invalidly applying, maintaining, or
enforcing its collective-bargaining agreement with Team-
sters Local No. 471, or applying the union-security provi-
sions of said agreement to the employees in the unit de-
scribed above.
(f) Insisting that job applicants for positions within the
above-described unit and employees already holding such
positions join Teamsters Local No. 471.
(g) Constructively discharging employees in the above-
described unit by giving them the choice of quitting their
jobs or joining Teamsters Local No. 471.
(h) Conditioning the hiring of applicants for employ-
ment within the above-described unit upon their having to
join Teamsters Local No. 471.
(i) Interfering with, restraining, or coercing employees
with respect to their rights to retain Operating Engineers
Local No. 34 as their collective-bargaining representative.
(j) In any other manner interfering with, restraining, or
coercing their employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargaining collectively with Interna-
tional Union of Operating Engineers, Local Union No. 34,
AFL-CIO, with regard to employees in the appropriate
unit which it represents concerning:
i. The transfer of employees from the Washington Ave-
nue, Minneapolis plant to the Woodbury plant.
ii. The rates of pay, wages, hours of employment, and
other terms and conditions of employment at the Wood-
bury plant.
iii. A new collective-bargaining agreement covering said
employees at the Woodbury plant.
(b) Withdraw and withhold all recognition from Team-
sters, Local No. 471 as the collective-bargaining representa-
tive of any of the employees in the above-described appro-
priate unit, both until Respondent has complied with the
provisions of this Order requiring it to bargain with Operat-
ing Engineers Local No. 34, and thereafter, unless and until
the Board shall have certified Teamsters Local No. 471 as
such representative.
(c) Reimburse each of its present and former employees
in the above-described appropriate unit, excepting those
employees who were members of Teamsters Local No. 471
prior to the relocation of the plant to Woodbury, for all
initiation fees, dues, and other monies, if any, exacted pur-
suant to the terms of the union-security provisions of the
collective-bargaining agreement between Respondent and
Teamsters Local No. 471.
(d) Honor, and comply with all the terms and conditions
of, the bargaining agreement between Respondent and Op-
erating Engineers Local No. 34, including payment of all
fringe and pension benefits thereunder, through the present
term of its automatic renewal, and thereafter until agree-
ment is reached on terms of a new contract, or until im-
passe is reached after good-faith bargaining.
(e) Make whole all former and present employees in the
unit described above for any loss of employment, reduction
in wages and benefits, or for failure to make appropriate
pension, health and welfare, and other contributions which
said employees may have suffered as a result of withdrawal
of union recognition and failure to apply said agreement
after the relocation.
(f) Reimburse Operating Engineers Local 34 for the loss
of all health and welfare, pension plan, and other payments
incurred by Local 34 as a result of Respondent's unilateral
and illegal withdrawal of recognition.
(g) Offer Vincent Bourbeau immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for his loss of earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(h) Offer to William Richardson immediate and full em-
ployment in the position which he was discriminatorily de-
nied or, if such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings which he may have sustained as a result of
the discrimination against him in the manner set forth in
the section of this Decision entitled "The Remedy."
(i) Preserve and make available, upon request, to the
Board or its agents, for examination and copying, all pay-
roll records, social-security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay and benefits owing under
the terms of this Order.
(j) Post at its plant in Woodbury, Minnesota, the at-
tached notice marked "Appendix."' Copies of the notice,
on forms provided by the Regional Director for Region 18,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that the no-
' In the event that this Order is enforced b a Judgment of the 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 Na-
tional Labor Relations Board."
926
FAIRMONT FOODS COMPANY
tices are not altered, defaced, or covered by any other mate-
rial.
(k) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain collec-
tively with International Union Of Operating Engi-
neers, Local Union No. 34, AFL-CIO, with regard to
the employees in the appropriate bargaining unit de-
scribed below concerning the transfer of employees
from the Washington Avenue, Minneapolis plant to
the Woodbury plant; the rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment at the Woodbury plant; or a new collective-
bargaining agreement covering said employees at the
Woodbury plant.
WE WILL NOT recognize Teamsters Local No. 471 as
the representative of any of our employees in the ap-
propriate bargaining unit described below, for the pur-
pose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment
both until we have complied with the provisions of this
Order requiring us to bargain with International
Union of Operating Engineers, Local Union No. 34,
AFL-CIO, and thereafter, unless and until Teamsters
Local No. 471 shall have been certified by the Board as
representative of any such employees.
WE WILL NOT give any force or effect to the collec-
tive-bargaining agreement between Teamsters Local
No. 471 and ourselves, supplements or addenda
thereto, covering our employees at the Woodbury
plant, in the appropriate unit described below, or to
any modification, extension, or renewal of such agree-
ment. We are not, however, required to vary or aban-
don any wage, hour, seniority, or other substantive
benefit accorded to said employees under these agree-
ments or prejudice the assertion by said employees of
any rights they may have thereunder.
WE WILL NOT give effect to the checkoff authoriza-
tions executed by employees in the unit described be-
low in favor of Teamsters Local No. 471.
WE WILL NOT encourage membership in Teamsters
Local No. 471, or any other labor organization, or dis-
courage membership in Operating Engineers, Local
No. 34, or any other labor organization, by invalidly
applying, maintaining, or enforcing our collective-bar-
gaining agreement with Teamsters Local No. 471, or
applying the union-security provisions contained
therein to the employees in the unit described below.
WE WILL NOT insist that job applicants for positions
within the unit described below and employees already
holding such positions join Teamsters Local No. 471.
WE WILL NOT constructively discharge our employ-
ees in the unit described below by giving them the
choice of quitting their jobs or joining Local No. 471.
WE WILL NOT condition the hiring of applicants for
employment within the unit described below upon
their having to join Teamsters Local No. 471.
WE WILL NOT interfere with, restrain, or coerce em-
ployees with respect to their rights to retain Operating
Engineers Local No. 34 as their collective-bargaining
representative.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL, upon request, bargain collectively with In-
ternational Union of Operating Engineers, Local
Union No. 34, AFL-CIO, with regard to the employ-
ees in the unit described below concerning the transfer
of employees from the Washington Avenue, Minne-
apolis plant to the Woodbury plant; the rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment at the Woodbury plant; and a
new collective-bargaining agreement covering said em-
ployees at the Woodbury plant.
WE WILL withdraw and withhold all recognition
from Teamsters Local No. 471 as the collective-bar-
gaining representative of any of the employees in the
appropriate unit described below, both until we have
complied with the provisions of the Order of the Na-
tional Labor Relations Board requiring us to bargain
with Operating Engineers Local No. 34, and thereafter,
unless and until the Board shall have certified Team-
sters Local No. 471 as such representative.
WE WILL reimburse each of our present and former
employees in the appropriate unit described below, ex-
cepting those employees who were members of Team-
sters Local No. 471 prior to the relocation to Wood-
bury, for all initiation fees, dues, and other monies, if
any, exacted pursuant to the terms of the union-secu-
rity provision of the collective-bargaining agreement
between Teamsters Local No. 471 and ourselves.
WE WILL honor, and comply with all the terms and
conditions of, the bargaining agreement between Oper-
ating Engineers, Local No. 34, and ourselves, including
payment of all fringe and pension benefits thereunder,
through the present term of its automatic renewal, and
thereafter until agreement is reached on terms of a new
contract, or until impasse is reached after good-faith
bargaining.
WE WILL make whole all former and present em-
ployees in the unit described below for any loss of em-
ployment, reduction in wages and benefits, or for fail-
ure to make appropriate pension, health and welfare,
and other contributions which said employees may
have suffered as a result of our withdrawal of union
recognition and our failure to apply said agreement
after the relocation.
WE WILL reimburse Operating Engineers, Local No.
34 for the loss of all health and welfare, pension plan,
and other payments incurred by Local 34 as a result of
Respondent's unilateral and illegal withdrawal of rec-
ognition.
WE Wll., offer Vincent Bourbeau immediate and full
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for his loss of earnings, plus inter-
est.
WE WILL offer to William Richardson immediate
and full employment in the position which he was dis-
criminatorily denied or, if such position no longer ex-
ists, to a substantially equivalent position, without
prejudice to his seniority or other rights or privileges,
and make him whole for any loss of earnings, plus in-
terest.
All maintenance engineers employed by Respondent at
its facility formerly located at 3836 Washington Avenue
North, Minneapolis, Minnesota, and subsequently relo-
cated at 1930 Wooddale Drive, Woodbury, Minnesota, ex-
cluding all other employees, office clerical employees, pro-
fessional employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
FAIRMONT FOODS COMPANY
928