Frankline Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 263 (N.L.R.B. 1987)

FRANKLINE, INC.
Frankline , Inc. and United Furniture Workers of
America, Local 282 , AFL-CIO. Case 26-CA-
8863
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 21 December 1981 Administrative Law
Judge J . Pargen Robertson issued the attached de-
cision . The Respondent and the General Counsel
filed exceptions and supporting briefs and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record and the at-
tached decision in light of the exceptions and briefs
and has decided to affirm the judge 's rulings, find-
ings ,1 and conclusions as modified , to modify the
remedy,2 and to adopt the recommended Order as
modified.
The judge held that the Respondent , Frankline,
Inc., violated Section 8(a)(1) and (5)3 of the Na-
tional Labor Relations Act by unilaterally chang-
ing its practice of recognizing stewards designated
by the Charging Party , United Furniture Workers
of America, Local 282 , AFL-CIO (UFWA or
Union), the Union that represents Frankline's pro-
duction and maintenance workers . The judge also
held that Frankline violated Section 8(a)(1) and (5)
of the Act by unilaterally changing its practice of
laying off employees for lack of work and , instead,
discharging them . In addition , the judge held that
Frankline violated Section 8(a)(1) and (3)4 of the
Act by discharging employee Gladys Cook after
refusing to recognize her as a steward because
Frankline believed that if it recognized Cook as a
steward , the superseniority provision of the parties'
expired collective-bargaining agreement would
have prevented Frankline from proceeding with its
planned discharge of Cook . Moreover, the judge
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
$ In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S.C. § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
29 U.S.C. § 158(a)(l) and (5).
4 29 U.S.C § 158(a)(1) and (3).
263
held that the contract clause providing supersenior-
ity for stewards was a term or condition of em-
ployment that survived expiration of the contract.
Frankline excepts to all the foregoing conclusions
of the judge.
In his formulation of a remedy , the judge further
found that if employee Cook, whose position in
Frankline 's upholstery department was eliminated,
has sufficient regular seniority to secure another
position in that department , she is not entitled to
exercise her superseniority as a departmental stew-
ard to obtain a position held by a more senior em-
ployee. The General Counsel excepts to this hold-
ing, as well as to the judge 's conclusion that Frank-
line's decision to eliminate Cook's position was not
discriminatorily motivated and to his finding that
further proceedings are required concerning Cook's
reinstatement and backpay rights.
We address these issues seriatim.
1.
Frankline contends that because employee Cook
was selected as upholstery department steward at a
time when the collective-bargaining agreement had
expired , Frankline was not required to recognize
Cook as steward . The contract expired on 31 De-
cember 1980 . On 9 January 19815 Frankline sent a
letter to the UFWA stating that since the contract
had expired, Frankline could not legally withhold
union dues . The letter added : "In reference to the
grievance and arbitration procedure , Frankline,
Inc., for the time being will continue to follow
Section I, Steps 1, 2, and 3 of Article VIII of the
expired contract ," i.e., steps 1-3 of the grievance
procedure . The UFWA sent Frankline a letter
dated 22 January notifying Frankline that Gladys
Cook had been elected upholstery department
steward. Frankline 's president read the letter on 27
January or 28 January, and a decision was made
not to recognize Cook as steward . This decision
was conveyed to the UFWA in a meeting on 2
February and reiterated in a letter from Frankline
to the UFWA dated 5 February. Frankline stated
that it would continue to recognize as steward the
employee who had been the prior upholstery de-
partment steward.
We agree with the judge that Frankline 's refusal
to recognize Cook as steward violated Section
8(a)(1) and (5), but on the following grounds.
Frankline's employees have a right under Section
76 of the Act to be represented by representatives
of their own choosing , and Frankline has a con-
comitant statutory obligation to recognize the des-
All dates mentioned are in 1981 unless otherwise indicated.
° 29 U.S.C. § 157.
287 NLRB No. 27
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ignated representatives of its employees . Missouri
Portland Cement Co ., 284 NLRB 432 ( 1987); Torin
Corp., 269 NLRB 433 ( 1984); Native Textiles, 246
NLRB 228 ( 1979). Before it may lawfully refuse to
accept a union 's designation of an individual as its
agent , an employer must demonstrate a valid
reason for the refusal , such as "persuasive evidence
that the presence of the particular individual would
create ill will and make good faith bargaining im-
possible." KDEN Broadcasting Co., 225 NLRB 25,
35 (1976). Accord: Sahara Datsun , 278 NLRB 1044
( 1986); Fitzsimons Mfg. Co., 251 NLRB 375 (1980).
Frankline has made no such showing here.? Ac-
cordingly , Frankline 's refusal to recognize the
Union ' s designation of Cook as steward violated
Section 8 (a)(1) and (5). See Native Textiles, supra.8
II.
On 30 January Frankline eliminated Cook's job
and discharged her. We agree with the judge that
Cook's discharge violated Section 8(a)(1) and (3)
because it resulted from Frankline's discriminatory
refusal to recognize her as a steward , an action
which, in Frankline's view, would have precluded
her from being discharged.9
r We agree with the judge , for the reasons stated in his decision, that
Cook was the only steward in the upholstery department and there was
no confusion concerning which employee was upholstery department
steward after Cook's election as steward
8 Although the judge noted that employees have a right to be repre-
sented by their designated representatives , he went on to find a violation
on the basis that Frankline 's change of its practice of recognizing stew-
ards on notice from the Union constituted a unilateral change of a
"working condition subject to mandatory bargaining " We do not
premise our finding of a violation on this basis because the identity of a
party's bargaining representative is not a mandatory subject of bargaining
and, therefore , unlike such subjects , the Respondent was not free either
to "insist on it to impasse or to implement it " Missouri Portland Cement
Co, 284 NLRB 432 An employer 's insistence to impasse on a proposal
regarding employees ' choice of bargaining representative generally vio-
lates Sec 8(a)(5) for the twofold reason that it "settles no term or condi-
tion of employment " and that it "weaken [s] the independence of the 'rep-
resentative' chosen by the employes [sic] " NLRB Y Borg-Warner Corp,
354 U S 342 , 350 (1958) Likewise, an employer could not implement
such a proposal over the union's objection whether the proposal consti-
tuted a change or not As in Missouri Portland, 284 NLRB 432 "[t]he
question of who shall represent bargaining unit employees is not a
subject on which an employer can insist on having its way except
where the presence of the chosen representative would make good-faith
bargaining virtually impossible " As noted, Franklme has not met that
burden here
Because Frankline 's refusal to recognize Cook as steward was motivat-
ed in part by Frankline's desire to avoid giving effect to the supersenior-
ity arrangement by which the employees are guaranteed the presence of
their chosen union representative for on-the -job grievance handling, we
adopt the judge's finding that Frankline also violated Sec 8(a)(3) and (1)
of the Act
9 The judge also found that Frankline violated Sec 8(a)(5) and (1) of
the Act through its discharge of Cook He reasoned that the contract had
established a practice of laying off or transferring employees, rather than
discharging them , when lack of work eliminated their jobs and that
Frankline's discharge of Cook thus represented a unilateral change in
conditions of employment We need not decide whether the judge cor-
rectly read the contract about this matter because we conclude , under the
circumstances here , that finding and remedying an 8(a )(5) violation on
these grounds does not effectuate the purposes of the Act As Franklme
points out in its exceptions , on the third day after Cook ' s discharge,
In formulating a remedy for the unlawful dis-
charge, the judge ruled that if Cook, following the
elimination of her job, had a right under the layoff
provisions of the contract to retain a job in the up-
holstery department through the exercise of her
regular seniority, she was not entitled to use her
superseniority as a departmental steward to obtain
the job of an upholstery department employee who
had more regular seniority than Cook. The General
Counsel excepts, arguing that Cook was entitled to
use her superseniority as a steward to displace a
more senior employee in the upholstery department
without regard to whether Cook's regular seniority
would be sufficient for her to retain employment in
the department . In contrast , Frankline argues that
Cook had no superseniority rights because super-
seniority provisions relate solely to the relationship
between the employer and the Union and, there-
fore, need not be honored by the employer after
contract expiration.
Frankline's contention is without merit. Super-
seniority is a mandatory subject of bargaining.
Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962),
enf. denied on other grounds sub nom . Marine &
Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d
Cir. 1963); Proof Co., 115 NLRB 309 (1956), enfd.
242 F.2d 560 (7th Cir. 1957). An employer whose
employees are represented by a labor organization
generally may not make unilateral changes with re-
spect to mandatory subjects of bargaining. NLRB
v. Katz, 369 U.S. 736 (1962). This principle remains
applicable after contract expiration except for a
few subjects for which there are special reasons
justifying exclusion from this rule. See Indiana &
Michigan Electric Co., 284 NLRB 53 (1987). Super-
seniority is not among the exceptions. Indeed, Beth-
lehem Steel, the seminal decision establishing cer-
tain exceptions in the postcontract-expiration set-
ting to the prohibition against unilateral changes,
also held the unilateral discontinuance of supersen-
iority following contract expiration to violate Sec-
tion 8(a)(5) of the Act." 0
when the Union met with Frankline to grieve the matter and advise it
that the Union read the contract as to preclude discharges for such rea-
sons, Franklme immediately agreed to convert into layoffs the discharges
of Cook and two other employees who had been discharged at the same
time In these circumstances , and because make-whole relief is provided
for Cook as part of our remedy for the 8(a)(3) violation, we dismiss this
8(a)(5) violation and amend the recommended Order accordingly
10 Our dissenting colleague's view that superseniority provisions do
not survive contract expiration is based on his personal view that griev-
ance procedures do not survive contract expiration We reject that view
for the reasons we stated in Indiana & Michigan Electric Co, supra Fur-
ther , we note that even under our colleague's view in that case, an em-
ployer has an obligation at all times to meet and confer with a bargaining
representative about employee grievances Thus, our colleague acknowl-
edges that grievances continue to exist after contract expiration It would
seem that stewards would still be necessary to articulate and process
Continued
FRANKLINE, INC. 265
Regarding the General Counsel 's contention con-
cerning applicability of the superseniority clause to
the situation of employee Cook, the Board ad-
dressed the question of the validity of supersenior-
ity clauses in Gulton Electro-Voice, 266 NLRB 406
(1983) (Gulton 1), enfd. sub nom. Electrical Workers
IUE Local 900 v. NLRB, 727 F.2d 1184 (D.C. Cir.
1984). In that case the Board overruled the holding
of Electrical Workers UE Local 623 (Limpco Mfg.),
230 NLRB 406 (1977), enfd. sub nom . D'Amico v.
NLRB, 582 F.2d 820 (3d Cir. 1978), that a super-
seniority clause could validly apply to a union offi-
cer who was not a steward and did not perform
steward-like functions as long as the officer's re-
sponsibilities had a "direct relationship to the effec-
tive and efficient representation of unit employees."
Instead , the Board reaffirmed the earlier decision in
Dairylea Cooperative, 219 NLRB 656 (1975), enfd.
sub nom. Teamsters Local 338 v. NLRB, 531 F.2d
1162 (2d Cir. 1976), that clauses that provide super-
seniority for stewards limited to layoff and recall
situations are presumptively valid . The Board rea-
soned in Gulton I that superseniority clauses, which
necessarily discriminate in favor of the union offi-
cials to whom they apply and discriminate against
all other unit employees, are nevertheless valid
when they serve to retain on the job union repre-
sentatives responsible for processing grievances.
The Board concluded that s'liperseniority clauses
are justifiable only to the extent that they ensure
that stewards or other union officials having stew-
ard-like functions will be able to maintain an on-
the-job presence.
The teachings of Gulton I were amplified in
Gulton Electro-Voice, 276 NLRB 1043 (1985)
(Gulton II). There the Board concluded that a chief
steward could not properly exercise her supersen-
iority rights to avoid being bumped to a lower job
classification . The Board reasoned that because the
chief steward 's responsibilities were plantwide, she
did not need to retain any particular job to perform
effectively her plantwide grievance-handling duties.
The Board contrasted that case to a situation in
which a steward served only the employees in one
those grievances after contract expiration even if, as in our colleague's
scheme of things, no formal grievance procedure remained in effect. Ac-
cordingly, contrary to the conclusion our colleague reaches in this case,
supersenionty for stewards in such circumstances still would be justified
by their role in grievance processing and on-the-job contract administra-
tion.
We also disagree with our dissenting colleague 's additional rationale
that superseniority fails to survive contract expiration because it is a pro-
vision governing the employer-union relationship . As noted above, super-
seniority is a matter related to "wages , hours, and others terms and con-
ditions of employment" under Sec . 8(d) of the Act and, therefore, is a
mandatory subject of bargaining . As a provision governing seniority, it
affects employees ' rights concerning layoffs and recalls . Thus, supersen-
iority provisions clearly affect the employer-employee relationship and
not just the employer -union relationship
zone of a plant or the employees on a particular
shift. In those circumstances , the Board indicated
that the steward could properly exercise her super-
seniority rights when necessary to retain a job in
the zone or on the shift that she served.
It is clear from the holdings of Gulton I and
Gulton II that maintaining stewards on the job so
they may perform their functions as stewards is the
only permissible basis for superseniority. Accord-
ingly , we conclude in this case that the judge was
correct in holding that Cook is not entitled to exer-
cise her superseniority as upholstery department
steward to displace a more senior employee if
Cook's regular seniority is sufficient for her to
retain a position in the upholstery department.) i
As the judge correctly concluded that the record
in this case does not provide a sufficient basis from
which to determine whether Cook is entitled to
retain a position in the upholstery department on
the basis of her regular seniority or whether in
order to retain a position in the upholstery depart-
ment Cook must invoke her superseniority, the res-
olution of this issue is left to the compliance por-
tion of the proceedings.
ORDER
The National Labor Relations Board orders that
the Respondent , Frankline , Inc., Hernando , Missis-
sippi, its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with United Furniture
Workers of America, Local 282, AFL-CIO, as the
exclusive bargaining representative of its employees
in the unit described below by refusing to recog-
nize shop stewards designated by the Union:
All production and maintenance employees, in-
cluding employees employed in the frame, up-
holstery, packing and shipping , maintenance
and cleanup , cutting, sewing, tufting , and re-
ceiving departments and truck driver , exclud-
ing all office clerical employees, watchmen, as-
sistant foremen , foremen , foreladies , guards
and supervisors as defined in the National
Labor Relations Act.
11 We overrule Textron. Inc., 252 NLRB 1005 ( 1980), and Parker Han-
nifin Corp., 231 NLRB 884 ( 1977), to the extent that they permit the use
of supersemority when it is not necessary to maintain a steward on the
job in the department or other segment of the work force that the stew-
ard serves In our view these cases were implicitly overruled by the rea-
soning of Gulton I and Gulton II. Two similar cases relied on by the
General Counsel , Hospital Service Plan of New Jersey, 227 NLRB 585
(1976), and Stage Employees IATSE Local 780 (McGregor- Werner), 227
NLRB 558 (1976 ), were overruled by our intervening decision in Gulton
II.
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Discharging its employees because its em-
ployees are elected to union steward positions.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize shop stewards designated by the
Union.
(b) Offer Gladys Marie Cook immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
her, in the manner set forth in the remedy section
of the decision.
(c) Remove from its files any reference to the
unlawful discharge and notify Gladys Marie Cook
in writing that this has been done and that the dis-
charge will not be used against her in any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Hernando, Mississippi facility
copies of the attached notice marked "Appen-
dix."' 2 Copies of the notice, on forms provided by
the Regional Director for Region 26, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, concurring in part and dis-
senting in part.
I agree with my colleagues, for the reasons
stated by them, that the judge correctly concluded
that the Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to recognize stewards
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
designated by the bargaining representative of its
employees. I also agreed with their finding, at In.
9, that the 8(a)(5) violation found by the judge re-
garding the Respondent's job action against Gladys
Cook should be dismissed. I disagree with their
finding that superseniority survives contract expira-
tion . Nonetheless, I would find, ag do my col-
leagues, that the Respondent violated Section
8(a)(3) and (1) of the Act when it refused to recog-
nize Cook as steward because it believed that appli-
cation of the superseniority provision in the parties'
expired contract would have required it to alter its
plan to terminate Cook on the legitimate elimina-
tion of her position.
The credited facts follow. On 9 January 1981'
the Respondent notified the Union in writing that it
could no longer legally withhold union dues, but
would adhere to the first three steps of the griev-
ance procedure.2 By letter dated 22 January, the
Union notified the Respondent that Gladys Cook
had been elected upholstery department steward.
The Respondent had previously decided to elimi-
nate Cook's position for legitimate business reasons.
On reading the Union's letter on 27 or 28 January,
the Respondent decided not to recognize Cook as
steward. The Respondent made this decision to
avoid extending to Cook rights expressed in the su-
perseniority clause of the expired contract-rights
which the Respondent felt would force it to lay off
or transfer Cook rather than terminate her as
planned . On 30 January Cook and two other em-
ployees were notified by the Respondent that their
jobs had been eliminated and that they were termi-
nated for lack of work.
On 2 February the Respondent and the Union
met. Cook was also present. The Respondent in-
formed the Union of its decision not to recognize
Cook as steward. The Union persuaded the Re-
spondent to reverse its decision to terminate Cook
and the other employees and to treat them as lay-
offs. On 5 February the Respondent and the Union
again met with Cook. The Respondent presented
Cook a letter offering what the letter alleged to be
any of several jobs to which she was entitled, i.e.,
those jobs that were being performed by less senior
employees. Also on 5 February, the Respondent re-
iterated in a letter to the Union its intention not to
recognize Cook as steward.
Concerning the superseniority clause , I find, con-
trary to my colleagues, that it does not survive
I All dates are in 1981 unless otherwise indicated
2 The Respondent later made it clear that it would not adhere to the
arbitration provision of the expired contract
FRANKLINE, INC.
contract expiration. In Bay Area Sealers, 3 the Board
stated:
Although an employer's contractual obliga-
tions cease with the expiration of the contract,
those terms and conditions established by the
contract and governing the employer-employ-
ee, as opposed to the employer -union, relation-
ship survive the contract and present the em-
ployer with a continuing obligation to apply
those terms and conditions unless the employer
gives timely notice of its intention to modify a
condition of employment and the union fails to
timely request bargaining , or impasse is
reached during bargaining over the proposed
change. [251 NLRB at 90.]
As I noted in my partial dissent in Indiana &
Michigan Electric Co.,4 the Board, consistent with
the distinction drawn in Bay Area Sealers, has held
that there is no general statutory postexpiration
duty to follow contract procedures ordering the
employer-union relationship with respect to such
mandatory bargaining subjects as union security,
dues checkoff,5 and arbitration . 6 I also indicated,
for the reasons set forth therein, that I would hold
the same for the contractual grievance process. Be-
cause superseniority is also a provision ordering the
employer-union relationship, I find it, too, expires
with the contract.
In Gulton Electro-Voice7 the Board reiterated the
standard for determining entitlement to supersen-
iority rights. It stated:
We will find unlawful those grants of super-
seniority extending beyond those employees
responsible for grievance processing and on-
the-job contract administration. We will find
lawful only those superseniority provisions
limited to employees who, as agents of the
union, must be on the job to accomplish their
duties directly related to administering the col-
lective-bargaining agreement . [266 NLRB at
409.]
Once a co itract has expired , freeing an employer
from the obligation to adhere to the contractual
grievance procedure, the "responsibility for griev-
ance processing and on-the-job contract administra-
tion" is eliminated . With the elimination of these
3 251 NLRB 89 (1980), enfd as modified on other grounds 665 F.2d
970 (9th Cir. 1982).
4 284 NLRB 53 (1987) 1 do not find superseniority "so intertwined
with substantive employee rights that [it) must be honored even after
contract expiration "
5 Bethlehem Steel Co., 136 NLRB 1500 (1962), enfd in relevant part
320 F.2d 615 (3d Cir. 1963).
6 Hilton-Davis Chemical Co, 185 NLRB 241 (1970).
7 266 NLRB 406 (1983), enfd sub nom . Electrical Workers IUE Local
900 Y. NLRB, 727 F.2d 1184 (D C. Cir 1984).
267
responsibilities the only lawful justification for su-
perseniority, with its inherent tendency to discrimi-
nate against employees for union-related reasons,8
is extinguished . I would not therefore find that su-
perseniority , an outgrowth of the employer-union
relationship related exclusively to the collective-
bargaining relationship , survives contract expira-
tion.9
The Respondent now argues , as I have found,
that superseniority does not survive the contract.
At the time the Respondent was notified of Cook's
selection as steward , however, it apparently
viewed superseniority as viable, and refused to rec-
ognize Cook as steward in order to avoid whatever
impact superseniority might have on its decision to
terminate Cook. I find such conduct , motivated by
a clear intent to thwart what the Respondent then
believed to be Cook's rights as steward, prohibited
by Section 8(a)(3) and (1) of the Act. Just as an
employer action based on an erroneous fear or
belief of an employee's union activity is prohibited
by Section 8(a)(3),10 the Respondent 's erroneous
belief that superseniority applied does not render
its conduct any less culpable under the Act. The
Respondent denied Cook recognition as steward
because it wanted to terminate her and did not
want her rights as steward to alter the course of its
decision. Such motivation , even when pursued on
the basis of faulty information, has a tendency to
discourage employee union involvement and to
interfere with employees in their rights guaranteed
by Section 7 of the Act. Accordingly, I find that
by such action the Respondent violated Section
8(a)(3) and (1) of the Act.11
8 Datrylea Cooperative, 219 NLRB 656, 658 (1975), enfd sub nom.
Teamsters Local 338 v. NLRB, 531 F.2d 1162 (2d Cir 1976)
9 As with the grievance and arbitration provisions , I would find that
an employer may refuse to follow a contractual superseniority provision,
but must bargain with a union about any alternative to be used. See my
partial dissent in Indiana & Michigan Electric Co., supra
I would reverse Bethlehem Steel, supra, to the extent it is inconsistent
with my view that superseniority does not survive contract expiration
10 NLRB P. Link Belt Co , 311 US 584 , 590 (1941 ); Monarch Water
Systems, 271 NLRB 558 fn. 3 (1984).
11 I agree with my colleagues that in the case of a viable supersenior-
ity provision , employees are not entitled to exercise supersemonty to dis-
place a more senior employee if regular seniority is sufficient . I also agree
that the record in this case does not provide sufficient basis to determine
what position , if any, Cook is entitled to, and would leave resolution of
that matter, as well as her attendant right to a make -whole remedy, to
compliance . Finally , I agree with the judge 's recommendation to leave to
compliance the question whether the Respondent 's 5 February offer of
reinstatement to Cook constituted a valid offer and tolled the Respond-
ent's backpay obligation.
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL notify Gladys Marie Cook that we
have removed from our files any reference to her
discharge and that we will not use the discharge
against her in any way.
FRANKLINE, INC.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to recognize or bargain
collectively on request concerning the rates of pay,
wages, hours, and other terms and conditions of
employment with United Furniture Workers of
America, Local 282, AFL-CIO as the exclusive
bargaining representative of the employees in the
following appropriate unit:
All production and maintenance employees, in-
cluding employees employed in the frame, up-
holstery, packing and shipping, maintenance
and cleanup, cutting, sewing, tufting, and re-
ceiving departments and truck driver, exclud-
ing all office clerical employees, watchmen, as-
sistant foremen, foremen, foreladies, guards
and supervisors as defined in the National
Labor Relations Act.
WE WILL NOT refuse to recognize shop stewards
designated by the Union.
WE WILL NOT discharge employees because of
their election to the position of union shop stew-
ard.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize shop stewards designated by
the Union.
WE WILL offer Gladys Marie Cook immediate
and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
Melvin Ford, Esq. and Margaret Theiner, Esq., for the
General Counsel.
Stephen H. Biller, Esq., for the Respondent.
Robert Spann, for the Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard on October 13 and 14, 1981, in
Memphis, Tennessee. The charge was filed on February
3, 1981, and amended on March 12, 1981. The complaint,
which issued on March 18, 1981, alleges that Respondent
violated Section 8(a)(1), (3), and (5) of the Act by laying
off its employee Gladys Marie Cook because of her elec-
tion as union steward in Respondent's upholstery depart-
ment . The complaint also alleges that Respondent violat-
ed Section 8(a)(1), (3), and (5) of the Act by refusing to
recognize and deal with employee Gladys Marie Cook as
the union steward of the employees in the upholstery de-
partment.
On the entire record, my observation of the witnesses,
and after due consideration of briefs filed by the General
Counsel and Respondent, I make the following
1. FINDINGS'
Respondent is engaged in the manufacture of uphol-
stery furniture at its Hernando, Mississippi facility. The
complaint alleges and Respondent admits that its produc-
tion and maintenance employees are represented by the
Charging Party (the Union). However, no collective-bar-
gaining agreement existed between the Union and Re-
spondent during the period from December 31, 1980, to
February 9, 1981. The old contract expired on December
31, 1980, and negotiations on the new contract were not
concluded until February 9, 1981, when that contract
went into effect.
By letter dated January 9, 1981, Respondent notified
the Union, inter alia , that it would continue to follow
steps 1 , 2, and 3 of the expired contract's grievance and
arbitration procedure provisions. Respondent's letter did
not include an indication that it would continue to
follow the arbitration procedure provisions in the ex-
pired contract.2
I Respondent admitted the commerce allegations in the complaint On
the basis of the allegations and admissions , I find that Respondent is, and
has been , at all times material , an employer engaged in commerce within
the meaning of Sec 2 (6) and (7) of the Act Respondent also admitted,
and I find , that the Charging Party is a labor organization within the
meaning of Sec 2(5) of the Act
2 In its answer to the complaint Respondent in par 21 admitted notify-
ing the Union in January 1981 that it would not be bound by the arbitra-
tion provisions of the expired contract
FRANKLINE, INC.
At some point shortly before January 22 , 1981, Gladys
Marie Cook was elected steward for the upholstery de-
partment employees . By letter dated January 22, 1981,
the Union notified Respondent of Cook's election. Re-
spondent 's president , Alvin J. Franklin , admitted that he
read the Union 's January 22 letter3 on January 27 or 28.
The expired collective-bargaining agreement contained
a "super seniority" clause which provided:
It is agreed that the chief steward and not more
than one steward in each department designated in
writing by the Local Union shall be the last laid off
and the first to be recalled only during their term of
office, provided they have the skill and abilities to
perform the work that is available in their respec-
tive departments.
However, on January 30, 1981, Respondent notified
Gladys Marie Cook and two other employees that their
jobs had been eliminated and that they were terminated.
Respondent 's officials admitted during the hearing that
Respondent refused to recognize Cook as the upholstery
department steward . The General Counsel contends that
those actions-the refusal of Respondent to recognize
Cook and her discharge-constitute violations of the
Act.
II. CONCLUSIONS
A. Allegation that Respondent Refused to Recognize
Cook as Steward
The evidence is undisputed that Respondent refused to
recognize Gladys Marie Cook as upholstery department
steward after receiving notice of her election. That fact
was admitted by Respondent's principal officials. Re-
spondent's president , Alvin Franklin, admitted' that he
read a January 22, 1981 letter from the Union about Jan-
uary 27 or 28.4 That letter read:
Mr. Alvin Franklin, President
Frankline, Inc.
P. O. Box 446
Hernando, MS 39632
Dear Mr. Franklin:
This letter is to notify you that Gladys Marie
Cook has been elected Steward in the . Upholstery
Department at your Frankline Plant.
If you have any questions concerning this matter,
please advise.
Sincerely,
/s/Willie Rudd
a In its brief Respondent relies on an assertion by Chief Steward Bur-
dett in her pretrial affidavit in arguing that Cook was not elected until
the week of January 29 , 1981, and that the Union 's letter was actually
mailed later but predated. The record does not support that argument
Although some confusion does exist, the evidence is substantial that Cook
was elected steward before January 22, 1981, and I so find
4 Union Vice President Spann testified that Respondent Vice President
Caldwell asked him about Gladys Cook 's election as steward around Jan-
uary 21 , 1981. Although I credit Spann 's testimony and find his testimony
reveals that Respondent knew of Cook 's election around January 21, that
determination is not crucial to my ultimate findings here.
Willie Rudd , President
UFWA Local 282, AFL-CIO
269
Franklin , along with Vice President in Charge of Pro-
duction Manley Caldwell and Personnel Manager Hou-
seal, admitted that the decision was made that Respond-
ent would not recognize Cook as steward . According to
the testimony of those officials, that decision was never
changed-from January 27 or 28, when Franklin read
the Union's letter, Respondent continued to refuse to
recognize Cook as steward.
When asked why Respondent refused to recognize
Cook, Franklin and Caldwell responded that they felt (1)
Respondent had no contractual obligation to recognize
Cook following the December 31, 1980 expiration of the
contract with the Union; and (2) since the expired con-
tract required that only the steward should be recog-
nized in each department,5 they elected to continue to
recognize Willie Rayborn,6 the upholstery employee
who served as steward until Cook was elected.'
1. The two stewards dilemma
Concerning this issue , I notice that the Union 's Janu-
ary 22 letter (see above) was drafted in the manner the
Union had regularly used in notifying Respondent of the
election of stewards . For example , on July 27, 1979, the
Union , by letter to Franklin from Local 282 President
Willie Rudd , states:
This letter is to notify you that Willie Rayborn has
been elected Steward in the Upholstery Line De-
partment at your Frankline Plant.
On June 9, 1978 , Rudd wrote Franklin:
This letter is to notify you that L. B. Robertson has
been elected Steward at your Hernando plant.
Additionally, in the Union's January 22, 1981 letter re-
garding the election of Cook, Respondent was asked to
advise the Union if they had any questions . Nothing was
said to the Union in that regard until after the Union
grieved Cook 's discharge on February 2, 1981. If Re-
spondent was actually concerned with whether Cook,
the former Steward Willie Rayborn, or both, were being
designated upholstery department steward (s), it could
8 In addition to the provision of the expired contract cited above, that
contract contains other applicable provisions including.
ARTICLE IV, Section 3 . The Company agrees to recognize the
stewards and the right of the Union to select any of its members to
act as stewards
ARTICLE IX, Section 13 . The Union shall furnish the Company
with the names of the department Shop Stewards , the Chief Stew-
ard, and all members of the Grievance Committee within thirty (30)
days from the execution of this Agreement , and shall promptly
notify the Company of any change therein.
Respondent contended that the Union's January 22 letter was unclear
since it did not reflect that former Steward Willie Rayborn was being re-
placed by Cook
° However , in a letter dated February 5, 1981, from President Franklin
to Union President Rudd , only the expiration of the contract was ad-
vanced in support of Respondent 's refusal to recognize Cook as steward.
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have simply called Union President Willie Rudd8 and
asked that question. It did not do so.9
Finally, on February 2, 1981, after Respondent told
the Union during a meeting regarding Cook' s termina-
tion that Respondent would continue to regard Willie
Rayborn as upholstery steward, Union Vice President
Robert Spann told Manley Caldwell, and subsequently
wrote Respondent, that Cook, not Rayborn, was the up-
holstery steward. Caldwell continued to refuse to recog-
nize Cook. As shown above, Respondent advised the
Union by the February 5 letter that it would not recog-
nize Cook.' o
In disagreement with Respondent, I find the evidence
shows that no confusion existed as to which employee
was being designated as upholstery steward following
Cook's election to that post.
2. The expired contract problem
Concerning the first of Respondent's alleged grounds
for refusing to recognize Cook, supra, that point does
not withstand scrutiny. Respondent gave no explanation
about why the expiration of the contract justified its rec-
ognition of Willie Rayborn, but did not justify the recog-
nition of another upholstery employee. Respondent ad-
mittedly continued to recognize stewards. On February
5, 1981, it notified the Union that it would continue to
recognize those persons who were serving as stewards
when the old contract expired. No reason was given in
8 During this period of time Respondent and the Union were engaged
in extensive contract negotiations Nevertheless, according to the record
evidence, Respondent said nothing to the Union about its alleged confu-
sion as to which upholstery employee was to serve as steward
9 Vice President Caldwell testified that he was informed by Personnel
Manager Houseal that Chief Steward Clara Burdett told Houseal that the
Union planned to use two stewards-presumably Cook and Rayborn-in
upholstery Clara Burdett denied that she ever made such a statement to
Houseal or any official of Respondent Although Houseal testified, he
was not asked and did not corroborate Caldwell's testimony in that
regard Caldwell also testified that subsequent to February 2, 1981, Bur-
dett told him that she was mistaken when she said the Union would use
two stewards in upholstery Again, Burdett denied that such a statement
was made, and Caldwell was not corroborated by Houseal who was al-
legedly present during that conversation I credit Burdett's denials I was
impressed with her demeanor On the other hand, I find that I am unable
to credit the testimony of Caldwell to the extent it conflicts with other
credited evidence On several occasions Caldwell's testimony conflicted
with that of several other witnesses including witnesses of Respondent
For example, I note a critical incident resulted in Caldwell's testimony
conflicting with other witnesses including Wesley Houseal According to
Caldwell, he told Cook and Robert Spann, on February 2, 1981, that
rather than continue to treat Cook as discharged, "we would treat these
employees which would be treating them as a layoff, that we would offer
them a job." Both Cook and Spann denied that Caldwell made that state-
ment Additionally, Personnel Manager Houseal recalled that it was not
until after the February 2 meeting with Cook and Spann when Caldwell
told him that they would treat Cook as a layoff
Additionally, I find unpersuasive Caldwell's contention that Willie
Rayborn continued to serve as steward following Cook's election Al-
though, according to Caldwell, employee Martha Vaughn appeared with
Rayborn in a meeting she had with management on January 23, Chief
Steward Burdett was unaware of any instance of Rayborn serving as
steward after Cook's election and before her termination Moreover, even
if Rayborn accompanied employee Vaughn to the January 23 meeting,
that fact would not justify Respondent's refusal to recognize Cook fol-
lowing notice from the Union
11 Caldwell admitted calling Willie Rayborn into his office where he
asked Rayborn if he was steward Although Rayborn admitted learning
that he was no longer steward Caldwell told Rayborn that he would
continue to recognize Rayborn
the letter or on the record about why Respondent could
not recognize newly appointed stewards. i i
Vice President Caldwell's testimony does reveal what
appears more in line with the true reason why Respond-
ent refused to recognize Cook. Caldwell testified that it
was during a meeting he had with Alvin Franklin and
Wesley Houseal, around January 28, regarding the elimi-
nation of jobs including the job of Gladys Cook that the
question arose regarding Cook's position as steward.
Caldwell testified that he recognized that if Cook was
steward, she would have super seniority and, since the
plan was to eliminate her position, other arrangements
would have to be made in recognition of her supersen-
iority Caldwell, Houseal, and Franklin decided at that
point to refuse to recognize Cook. That testimony and
the entire record make it apparent, and I find, that Re-
spondent decided to refuse to recognize Cook as steward
in order to avoid extending to Cook the rights expressed
in the contract's superseniority clause. Caldwell's testi-
mony reveals that he felt the superseniority provisions
would force Respondent to make other arrangements
about Cook's planned termination.
B. Termination of Gladys Cook
On January 30, 1981, Respondent notified three em-
ployees, including Gladys Cook, that their jobs had been
eliminated and that they were being terminated.
Respondent's evidence regarding the elimination of
jobs it not disputed. According to the evidence, the final
decision was made in late January to eliminate four jobs
for business considerations. 12 During January, Respond-
ent learned that orders stemming from the Dallas and
Atlanta markets were slow. Respondent surveyed its op-
erations and decided on the job eliminations. Gladys
Cook's job was that of an "in-line" inspector. Cook in-
spected furniture during the production process. Howev-
er, Respondent allegedly determined that the final or
"end-line" inspector involved some duplication of Cook's
work. It ultimately determined that the function of "in-
line" and "end-line" could be consolidated into the job
of final (end-line) inspector. On that basis, around Janu-
ary 28, Respondent decided to eliminate the "in- line" in-
spector job and transfer the entire function to the final
inspector position. Respondent has continued since Janu-
ary 30, when its decision went into effect, to operate an
"in-line" inspector. Therefore, I find nothing illegal in
Respondent's action of eliminating the job formerly held
by Cook.' 3
1 i The continuation of the status quo following contract expiration
would involve continuation of the established practice of recognizing
newly elected stewards and not the establishment of a new practice per-
mitting Respondent to reject or delay such recognition
12 The fourth job was eliminated on February 2, 1981
13 The General Counsel pointed to various alleged conflicts in the tes-
timony of the three managing agents of Respondent and to an alleged ab-
sence of documented evidence in arguing that Respondent failed to justi-
fy its decision to eliminate Cook's Job Although conflicts in testimony
reflect on the credibility of Respondent's witnesses, I have found no con-
flicts that would justify my discrediting the evidence supporting Re-
spondent's business justification As to the General Counsel's argument
that documentation is lacking, I note that Respondent's answer placed the
General Counsel on notice regarding its decision to eliminate jobs From
Continued
FRANKLINE, INC 271
However, the question remains whether Respondent
was justified in discharging Cook even though her job
was eliminated.
Cook testified that she was told of her discharge by
Wesley Houseal . Cook asked for her chief steward, Clara
Burdett . During the conversation among Houseal, Cook,
and Burdett , Burdett asked Houseal , " . what do you
mean terminating [Cook] for lack of work. Why don't
you lay her off for lack of work." Later during that con-
versation Cook asked, "Why don't you let me do some-
thing else , Wes, nothing else, let me sweep the floor
... " Cook testified that Houseal responded that she
was being terminated for lack of work. 14
The expired collective -bargaining agreement provided
in its management -rights clause that Respondent may dis-
charge employees "for proper cause, or to transfer or to
lay off employees because of lack of work." As shown
above, that contract also contained a super seniority
clause.
Respondent offered evidence regarding only one other
job elimination prior to January 30 Manley Caldwell tes-
tified that the job formerly held by employee Mary
Chambers was eliminated on August 8, 1980, following
Chambers ' resignation . Therefore, until January 30, 1981,
there was no precedent for Respondent discharging em-
ployees because of the elimination of the jobs.
Following Cook's discharge, Union Vice President
Robert Spann met with Manley Caldwell and Wesley
Houseal on February 2, 1981, regarding Cook' s termina-
tion. Cook was also present. According to Caldwell, he
decided on the basis of Spann 's protest to reverse his de-
cision to terminate Cook15 and the other employees,
whose jobs had been eliminated . His decision was that
instead of treating those employees as dischargees, he
would treat them as layoffs . In line with Caldwell 's deci-
sion , all of those employees , including Cook, were of-
fered the opportunity to bump into jobs held by less
senior employees.
I find that Gladys Cook was discharged on January
30, 1981 . I also find that the established procedure, as
evidenced by the language of the expired contract, and
by Respondent 's belated recognition that a layoff rather
than a discharge was the proper procedure , would have
necessitated treating Cook as subject to layoff because of
her job elimination. 16
that point the General Counsel could have pursued examination of docu-
ments, if questions existed as to Respondent 's elimination of jobs Against
that background , I will not draw adverse inferences against Respondent
because of any failure to support testimony with documented evidence
14 I credit Cook's testimony regarding her termination Cook im-
pressed me as a candid witness On the basis of my impression of her de-
meanor , and the record as a whole, I fully credit her testimony
15 Respondent does not contest that Cook was discharged on January
30 However, in a February 3, 1981 letter from Wesley Houseal to Cook,
the January 30 incident was referred to as a layoff That letter informed
Cook that she was eligible for any of several specified jobs that were
being performed by less senior employees
is The expired contract provided that Respondent "shall have the
right to temporarily lay off employees up to one full day without regard
to seniority or stewardship " However , it is clear from the record that
Cook was not being temporarily laid off on January 30 She was dis-
charged Therefore, I find no basis on which Respondent can justify use
of the temporary layoff provision to either excuse its actions or to miti-
gate the remedy recommended below
It is not disputed that had Cook been treated as sub-
ject to layoff on January 30, she would have been eligi-
ble to bump one of the less senior employees in uphol-
stery or in another department . In that regard , Respond-
ent does not contend that any factors existed that would
have prevented Cook from filling one of the jobs held by
a less senior employee on January 30 Indeed, Respond-
ent's February 3 letter to Cook advised her of several
jobs that she was eligible to hold. Respondent also con-
cedes through the testimony of Manley Caldwell that,
but for its refusal to recognize Cook as a steward, it
would have been required to apply the super seniority
provisions on January 30 and transfer Cook to another
job. 17
In light of the above and in view of my finding re-
garding Respondent 's motive in refusing to recognize
Cook as upholstery department steward, I find that she
was discharged as a direct consequence of Respondent's
efforts to avoid recognizing her as steward.
Conclusions
In light of my findings of fact, there remains consider-
ation of whether Respondent violated Section 8(a)(1),
(3), and (5) by refusing to recognize Cook as upholstery
steward and by discharging her on January 30, 1981.
A. The 8(a)(5) contention
Concerning 8(a)(5) allegations , the Board has long
held the general principle that established working con-
ditions may not be unilaterally changed without negotiat-
ing with the employees ' bargaining representative even
though the applicable collective -bargaining agreement
has expired . In considering the question of established
working conditions , it is proper to look to the expired
contract-not for the purpose of considering that con-
tract as a viable extended contract, but for the purpose
of determining the established practice (see, for example,
NLRB v. Burns Security Services, 406 U.S. 272 (1972),
where the Court, in consideration of a successor issue,
discussed an employer 's obligation not to unilaterally
change conditions established by a collective -bargaining
agreement even though the agreement had expired; see
also Wayne's Olive Knoll Farms, 223 NLRB 260 (1976);
Nolde Bros. v. Bakery Workers, 430 U.S. 243 (1977);
Gordon L. Rayner, 251 NLRB 89 (1980). Here, the Union
continued as bargaining representative . The parties con-
tinued to negotiate during January 1981, and a new
agreement was reached on February 9, 1981.
In light of the above , I have considered the language
of the expired contract in reaching my findings. As
found in the previous sections of this decision, Respond-
ent's practice before January 21 , 1981, was to recognize
changes in department stewards on notice from the
Union . Prior to that date , Respondent had consistently
accepted written notice from the Union even though
17 Although the record reveals that Cook should have been treated as
a layoff and permitted to "bump" into a job held by a less senior employ-
ee regardless of her status of steward , the record shows, and I find, that
on January 28 and 30, Vice President Caldwell thought Cook would be
entitled to greater privileges if she had the right to exercise supersenior-
ity (see, below , under The Remedy)
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those notices were similar to the one sent by the Union
regarding Cook's election.
It is well recognized that employees have the right to
representatives (stewards) designated in accord with ac-
cepted practices of the exclusive collective-bargaining
representative. That right constitutes a working condi-
tion subject to mandatory bargaining.18 Therefore,
where, as here, an employer unilaterally changes such
practices, it commits an 8(a)(5) violation. I find that Re-
spondent violated Section 8(a)(5) when it unilaterally
changed its practice during January by refusing to recog-
nize Cook as upholstery steward. Moreover, I find that
that change encompassed not only the upholstery depart-
ment , but the entire bargaining unit, as evidenced by Re-
spondent's February 5, 1981 letter to the Union. That
letter stated in essence that Respondent would not recog-
nize any changes in stewards during the period after Jan-
uary 1, 1981, until a new collective- bargaining agreement
was negotiated.
Additionally, the facts demonstrate that prior to Janu-
ary 30, 1981, it was Respondent's practice, as evidenced
by the management-rights clause of the expired contract,
to discharge employees only for cause and "to transfer
or to lay off employees because of lack of work." It is
axiomatic that matters of discharge and layoff constitute
mandatory subjects of collective bargaining . By unilater-
ally changing that practice and discharging its employees
because of the elimination of their jobs on January 30,
1981, Respondent unilaterally changed an established
working condition in violation of Section 8(a)(5) 19
B. The 8(a)(3) Contention
As shown above, I find that the testimony of Vice
President Caldwell reveals that during a conference
around January 28, 1981, involving Caldwell, President
Alvin Franklin, and Personnel Manager Houseal, the de-
cision was made to refuse to recognize Gladys Cook as
upholstery steward because of the belief that recognition
of Cook would necessitate other arrangements regarding
her termination. Therefore, even though a previous deci-
sion may or may not have been made to terminate Cook,
18 Respondent, in its brief, argues that the functions inherent in the
union steward provisions of the expired collective-bargaining contract,
specifically the supersenionty provisions, are akin to union security and
should be open to unilateral change The record shows, however, that by
its January 9, 1981 letter to the Union, Respondent agreed to the continu-
ation of grievance proceedings to the point of arbitration Stewards serve
a crucial role in those proceedings Therefore, I see nothing herein that
would support a finding-as Respondent argues-that we are dealing
with a uniquely union-related, not employee-related, right The right of
employees to representation by their stewards in grievance proceedings
may not be likened to union security The Board has consistently found
that superseniority provisions should be granted enforcement to the
extent they insure the presence of employee representatives Such rulings
demonstrate that the essence of those provisions is the protection of em-
ployee-not simply union-rights Bay Area Sealers, 251 NLRB 89 (1980),
Nolde Bros v Bakery Workers Local 358, 430 U S 243
19 In reaching the conclusion that Respondent violated Sec 8(a)(5) by
dishcharging Cook and two other employees on January 30, 1 find that
Respondent's motive is irrelevant I find that Respondent violated Sec
8(a)(5) even if a determination should be made at some point in these pro-
ceedings that I erred in my finding that Respondent was discriminatorily
motivated in its decision to terminate Cook The fact remains that regard-
less of its motive, Respondent unilaterally changed a recognized working
condition
Respondent thereon made a decision to discriminatorily
deny Cook recognition that would have, according to
Caldwell's belief, necessitated offering Cook transfer or
layoff privileges.
The reasoning behind Caldwell's action may have been
convoluted. Nevertheless, Caldwell' s admissions clearly
demonstrate that Respondent's action in denying recog-
nition of Cook as steward resulted in it proceeding to the
termination of Cook. The effect was discriminatory
denial of recognition and discharge, action that violated
Section 8(a)(1) and (3) of the Act.20 The effect of illegal
discrimination against an employee because that employ-
ee has become a union steward is patently discouraging
to employee involvement with a union.
CONCLUSIONS OF LAW
1 Frankline, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Furniture Workers of America, Local 282,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent, by refusing to recognize its employee
Gladys Cook as steward for its employees in the uphol-
stery department about January 22, 1981, has engaged in
conduct violative of Section 8(a)(1), (3), and (5) of the
Act. By discharging its employee Gladys Cook about
January 30, 1981, Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act. As
I have found that Respondent unlawfully discharged
Gladys Cook, I shall recommend that Respondent be or-
dered to offer Cook immediate and full reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or other rights and privileges. I shall further
recommend that Respondent be ordered to make Gladys
Cook whole for any loss of earnings she may have suf-
fered as a result of the discrimination against her.21
20 Counsel for the General Counsel contends that Respondent' s animus
against Cook stemmed from the fact that her involvement with the Union
was novel activity by a Caucasian The evidence reflects that Cook, who
wore a union T-shirt to work for the first time on the day of her dis-
charge, was the first white employee elected steward The bargaining
unit is approximately 70 percent black, and all other stewards have been
black I note also that Respondent's witnesses Franklin, Caldwell, and
Houseal are all white In view of my finding above, I find it unnecessary
to decide this issue of motivation However, I credit the factual allega-
tions supporting the General Counsel's argument That evidence was not
rebutted
21 My recommendation includes an offer of reinstatement to Cook
However, I find that during a February 5, 1981 meeting that involved
Personnel Manager Houseal, Cook, and Robert Spann, Cook was pre-
sented with a letter from Respondent dated February 3 By that letter,
Continued
FRANKLINE, INC.
Cook was offered what the letter purported to be any of the several jobs
to which she was entitled-t e , those jobs that were being performed by
less senior employees Cook , as designated upholstery department stew-
ard, was entitled to the benefit of Respondent 's supersenionty practice as
expressed in its expired contract . However , neither that practice nor the
law requires anything more than that seniority required to enable a stew-
ard to continue to be employed or to have preference regarding layoff
and recall in the department, and on the shift , where she is serving as
steward . If, as it appears , Cook was in a position to return to work in
upholstery through use of her regular seniority , it would be improper and
illegal to require anything more She should not be given seniority neces-
sary to bump more senior employees in absence of necessity for such
action . (Darrylea Cooperative , 219 NLRB 656 ( 1975); Allied Supermarkets,
233 NLRB 535 ( 1977)).
However, the record reflects that the issue of Cook 's reinstatement was
not completely litigated . Although Respondent 's February 3 letter to
Cook specifies certain jobs that were purportedly manned by less senior
employees , there was no effort to litigate whether those specified jobs
were the only jobs available on January 30, the date of Cook 's discharge.
Additionally, Cook testified about the reasons why she declined Re-
spondent 's February 5 offer . Concerning the jobs in upholstery, Cook
complained generally that she felt she lacked the ability to perform those
jobs without some training . Obviously , Cook should not be permitted to
pick and choose the choicest job under the terms of this Order without
regard to , or in abuse of, Respondent 's established practice . However,
neither should Respondent be permitted to abuse its position by discri-
minatorily assigning Cook to a job that requires skills beyond her ability
for the purpose of discharging her in the near future . Despite Cook's tes-
timony, I find the evidence is insufficient to resolve whether Cook pos-
sessed the skills to perform any of the offered upholstery jobs Something
more than her opinion is required . Obviously , if it develops that Cook
273
Backpay shall be computed as shown in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as shown in Flor-
ida Steel Corp., 231 NLRB 651 (1977).22
[Recommended Order omitted from publication.]
lacked the ability to perform any of those jobs, an issue will arise as to
her right under supersemonty to bump a senior employee.
Moreover, an issue was raised , but not resolved , regarding the seniority
of Respondent 's remaining inspector , Evelyn Yount . Specifically , a ques-
tion was raised whether Yount resigned her employment at one point and
broke her seniority . As indicated during the hearing, I could not find that
Yount had resigned on the basis of evidence of rumors and opinions. If
Yount did resign , Cook may have been the senior inspector on January
30. The record shows nothing more than opinion evidence on the issue of
Yount's resignation from both sides, opinions that were not shown to be
rooted in competent knowledge of the entire incident-i e., Yount's al-
leged resignation . Of course, if the evidence develops that Yount did not
resign , Cook may nevertheless be entitled to bump into Yount's position
if it is found that Cook lacks the skills and ability to perform any of the
jobs manned by less senior employees.
Unfortunately , the current record makes resolution of the above ques-
tions impossible Therefore, further proceedings may be required to de-
termine the precise nature of Cook's reinstatement and backpay rights.
In making my findings regarding Respondent 's offer to reinstate Cook,
I specifically discredit testimony that Cook was offered reinstatement on
February 2. That testimony was denied by both Cook and Robert Spann
I was impressed by Cook 's and Spann 's demeanor, and I credit their testi-
mony.
22 See generally Isis Plumbing Co., 138 NLRB 716 (1962).