General Foods Corp.

National Labor Relations Board - Board Decisions

Apr 3, 1967

163 N.L.R.B. 851 (N.L.R.B. 1967)

MAXWELL, HOUSE
employment, and other conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees em-
ployed at our plant in San Angelo, Texas, exclusive
of office clerical employees, technical and pro-
fessional employees, guards and supervisors as
defined in the Act.
WE WILL offer to the following employees
immediate and full reinstatement and make them
whole for any loss of pay they may have suffered
because of the discrimination against them:
James Dukes Milton Frazier
Clarence Hutton Arthur Chappell
David L. Richardson Robert Rodriguez
Victor Barrera
WE WILL make whole each of the following named
employees for any loss of pay they may have suffered
by reason of the discrimination against them:
Candelario Asebedo Indalecio Herrera, Jr.
Ruben Montez Henry Rodriguez
Gilbert Flores Felix Gonzales
Jesus Herrera Emilio Montez
Gilbert Martinez Wille Zapata
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to join or assist a union , to bargain
collectively through representatives of their own
choosing, and to engage in any other concerted
activities for mutual aid or protection, or to refrain
from any or all such activities.
SAN ANGELO PACKING
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the employees, entitled to
reinstatement, if presently serving in the Armed Forces of
the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6th Floor
Meacham Building, 110 West Fifth Street, Fort Worth,
Texas 76102, Telephone Edison 5-4211, Ext. 2131.
851
Maxwell House Division , General Foods
Corporation and William W. Birch
Allied Food Workers District Union No. 103,
affiliated with Amalgamated Meat Cutters &
Butcher Workmen ' of North America,
AFL-CIO and William W. Birch. Cases
23-CA-2414 and 23-CB-695.
April 3, 1967
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA.
On December 5, 1966, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that the Respondent has not
engaged in any unfair labor practices as alleged in
the complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief. Briefs
were also filed by the Respondent Union and the
Respondent Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
' In view of the disposition of this case, Member Fanning and
Member Zagoria do not deem it necessary to pass upon any
implication in the Trial Examiner's Decision that a breach of the
duty of fair representation, in itself, may constitute a violation of
Section 8 of the Act.
Member Jenkins considers that the Trial Examiner correctly
stated the controlling legal principles herein. Vaca v Sipes, 386
U.S 171; Local Union No. 12, United Rubber, Cork, Linoleum &
Plastics Workers (Business League of Gadsden), 150 NLRB 312,
enfd. 368 F.2d 12 (C.A 5,1966)
295-269 0-69-55 163 NLRB No. 108
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: Upon separate
charges filed on June 9, 1966, by William W. Birch, an
individual, against Respondent Maxwell House Division,
General Foods Corporation (herein called the Employer),
and Respondent Allied Food Workers District Union
No 103, affiliated with Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO (herein
called the Union), and upon an amended charge filed
against Respondent Union on August 3, 1966, a
consolidated complaint was issued on August 8, 1966. The
complaint alleged that Respondent Employer had violated
Section 8(a)(3) and (1) of the National Labor Relations Act
by disqualifying, demoting, and reducing the pay of
employee William W. Birch and assigning him to a more
arduous and less agreeable job because he was not a
member of Respondent Union and that Respondent Union
violated Section 8(b)(2) and (1)(A) of the Act by causing the
Employer to engage in said acts. Each Respondent filed an
answer denying that it had engaged in the unfair labor
practices alleged.
A hearing was held in Houston, Texas, on October 5,
1966. Thereafter a brief was submitted by each of the
parties All briefs have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Employer is a Delaware corporation
maintaining a place of business at Houston, Texas, where
it is engaged in the production of coffee and food products.
During the 12-month period preceding the issuance of the
complaint, which is a representative period, Respondent,
in the course and conduct of its business operations, sold
and shipped coffee and food products valued in excess of
$50,000 from its Houston, Texas, plant directly to points
outside Texas.
Respondents admit and it is found that Respondent
Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
lI THE RESPONDENT LABOR ORGANIZATION
Respondents concede, and it is found , that Respondent
Union is a labor organization within the meaning of Section
2(5) of the Act.
' The allegations , if proven, would establish unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2) and
8(a)(1) and (3) of the Act Ford Motor Co v Huffman, 345 U S. 330,
337-338, Local Union No 12, United Rubber , Cork, Linoleum &
Plastics Workers , etc , 150 NLRB 312, enfd 368 F 2d 12 (C A 5),
Local 1070, United Brotherhood of Carpenters (Horn Co), 137
NLRB 439
2 No written evidence was adduced to show the exact terms of
the 1962 settlement and Birch testified that although there was
some discussion at that time about the loss of his qualifications as
clerk or as green coffee handler if he went back to general
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case presents the question whether the Union, as
the established collective- bargaining representative, has
breached its obligation fairly to represent a nonunion
employee in processing the grievance of one of its
members and whether, by reason of such breach of its
statutory duty, it has caused the Employer unlawfully to
discriminate against the nonunion employee.' A
determination of the issues presented also involves a
consideration of the current bargaining agreement
between Respondent Employer and Respondent Union
and the application of its terms in the light of a 1962
grievance settlement pertaining to the nonunion employee,
William Wayne Birch.
For several years prior to April 1962, when Respondent
Union became the bargaining representative of
Respondent Employer's employees, employee Birch had
been listed on the Employer's records as permanently
qualified to perform and had performed work in its
Receiving and Shipping Department (herein called the R
and S Department) as a clerk or as a green coffee handler.
As the result of a curtailment of operations in that
department, Birch was transferred in 1962 to work as a
general laborer in the Soluble Packing Department, work
which paid less than the work he had been doing. During
that same year, when the discontinued work was resumed,
Birch was reassigned to the job of green coffee handler
from which he had been demoted. These transfers were on
a seniority basis in accordance with the Employer's
established practice both before and after the advent of
the Union
For reasons unexplained in the record, Birch objected to
his reassignment to the higher paying job and filed a
grievance with the Union, seeking to require the Employer
to transfer him back to the lower paying job of general
laborer. During the third step of the grievance procedure,
about September 1962 , a settlement was reached whereby
Birch was permitted to return to general laborer's work,
but with the understanding that in the future, except for
transfers on a temporary basis to the clerk or green coffee
handler work, any transfer to that higher paying work
would have to be pursuant to bids for the job.-' Since
November 1962, Respondents have had in effect a
disqualification procedure whereby any employee who
turns down, except for medical reasons, a transfer to a
higher paying job for which he is qualified, will lose his
qualification for such job. This was in accordance with the
principle already established in Birch's grievance case.
Respondent continued, however, until May 27, 1966, to
carry Birch on its records as a qualified R and S
Department clerk and green coffee handler. This error was
not discovered by the Union until February 1966, when the
grievance giving rise to the instant case was filed.
laborer's work, he did not agree to any loss of qualifications and
did not recall being informed that any agreement to that effect
was reached However , I am satisfied that the recollections of
Marvin Childers, R and S Department head, and Alex (Pete)
Harrison , the Union's president and business agent , who were
present at the grievance meetings and who testified to the
settlement terms as set forth above , are substantially accurate I
am also satisfied and find , on the basis of Childers' credited
testimony, that he discussed with Birch the full terms of the
settlement agreement on the day of the settlement while Birch
was in his office
MAXWELL HOUSE 853
Birch worked regularly as a general manual laborer in
the Soluble Packing Department between 1962 and 1965,
returning from time to time to the R and S Department as a
relief clerk or green coffee handler on a temporary basis.
In August 1965, a permanent opening developed for the
job of green coffee handler in the R and S Department.
Under the terms of the 1965 to 1967 bargaining agreement
then in effect, unless some employee already permanently
qualified for the vacant job but holding a lower paying job
was available to fill the vacancy by transfer, the job had to.
be posted for bidding and would have to be awarded to the
most senior employee able to qualify. R and S Department
Head Childers, ignoring the 1962 settlement agreement
regarding Birch, awarded the vacant green coffee handler
job to Birch without posting the job. During the following
month, September, a second permanent vacancy
developed for the job of R and S Department clerk and
again Birch was transferred to this job without it being
posted. Except for the 1962 grievance settlement
agreement, Respondents agree that there would be no
question as to the Employer's right and obligation thus to
transfer Birch under the contract.
At the time of the grievance settlement in 1962, Birch
was a member of the Union. He remained a member for
only 1 year, however, and has not since renewed his
membership.
In October 1965, Dave English, a union member and a
former union steward, was transferred from the Rice
Department to a temporary clerk's job in the R and S
Department and was assigned to the second shift. He filed
a grievance with the Union, claiming that he had seniority
over Birch and should be assigned to the first shift on
which Birch was working. Birch did not contest this claim
and accepted assignment to the second shift, with his
foreman's assurance that if it became necessary to curtail
the clerk's work, English would be transferred to the
Towmotor Department or hack to the Rice Department
and Birch would be reassigned to the first shift.
The necessity for such a curtailment occurred in
February 1966, and the Employer at that time transferred
English to the towmotor work and Birch to clerk's work on
the first shift. A grievance was then filed on February 25,
1966, by Alex (Pete) Harrison, then chief steward of the
Union, on behalf of English in which it was claimed that
Birch, a "nonqualified" employee, was performing the
work to which English, a "qualified" employee, was
entitled, in violation of the collective-bargaining
agreement. The grievance was processed through three
steps of the grievance machinery. Respondent Employer
at first took the position that Birch was permanently
qualified for the position and as such was entitled to
perform it in preference to English who had been only
temporarily assigned to the work. Later, when its attention
was called to the 1962 grievance settlement agreement
concerning Birch, and after Harrison wrote the Employer
a letter on May 13, 1966, purporting to summarize what
took place in connection with the 1962 settlement and to
point out the necessary consequences of that settlement,
the Employer changed its position.
Subsequent to the third step in the grievance procedure
and after arbitrators had been selected to settle the
matter, it was agreed by the Union and the Employer that
although the 1962 settlement agreement had not expressly
stated that Birch was disqualified for the R and S
Department clerk and green coffee handler jobs, this was
the inevitable consequence since under the settlement
agreement he could not be assigned to the work on a
permanent basis except by bidding for it. It was further
decided that the clerk's job should be posted for bidding.
This agreement was reached about May 12, but to avoid
arbitration, it was decided to revert the settlement back to
the third step of the grievance procedure which occurred
on April 28.
The Employer then posted the clerk's job for bidding
and a third employee, Jessie Bush, a nonunion employee
who had seniority over both Birch and English, bid for and
was awarded the job. Birch did not bid for the job and
acknowledged that if he had bid, he could not have
prevailed over Bush.
The charge that Birch received discriminatory
treatment in the settlement of the 1966 grievance because
of his lack of union membership is based principally upon
the fact that at one of the grievance meetings, in April or
May, at which only union and employer representatives
were present, references were made by the Union to his
lack of union membership. Although it is undisputed that
Union Respresentative Downer referred to him as a
"scab," the evidence as to the context in which this
statement was made is in conflict. After a careful analysis
of the testimony of Employer Representatives Childers and
Murphy and Union Representatives Harrison and Downer,
I find from those parts of their testimony which I credit
that substantially the following took place: Childers
complained that he did not believe that the Union was
representing Birch properly and fairly and attributed the
Union's attitude toward Birch to his lack of union
membership. Thereupon Downer inquired of another
union representative, Davis, who was present, about
Birch's union status and was informed that Birch was not
a member. Downer then made the statement, "Okay, he's
a scab," adding that if Birch wanted union representation
he could get it by joining the Union. Other union
representatives present laughed when Downer referred to
Birch as a "scab." Downer testified that his statement was
made in jest and Employer Representative Murphy
testified that he took the statement "with a grain of salt."
Both Union Representative Harrison and Employer
Representative Murphy testified that the Union in fact had
frequently taken a position in favor of a nonunion
employee when processing grievances but that no check is
made on whether an employee is a union member when he
files a grievance and that normally management and union
representatives are not conscious of his union status.
There is no reasonable basis in the record for doubting this
testimony. I am persuaded that the references to Birch's
nonunion status at the April or May grievance session
were facetiously made and that his lack of union
membership was not a factor in the determination of the
grievance affecting his job.
I find that a preponderance of the credible evidence
does not sustain the allegation of the complaint that the
Respondent Union caused the Respondent Employer to
discriminate against Birch because he was not a member
of the Union or that the Respondent Employer in fact
discriminated against him for such reason. There is
accordingly issued the following
RECOMMENDED ORDER
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed.