Kitty Clover

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 788 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kitty Clover, Division of Fairmont Foods and Barbara
J. Nicola
Teamsters Local 554 and Barbara J. Nicola. Cases 17-
CA-7639 and 17-CB-1741
September 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEII O
On June 21, 1978, Administrative Law Judge Irwin
Kaplan issued the attached Decision in this proceed-
ing. Thereafter, counsel for the General Counsel 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 briefs
and has decided to affirm the rulings, findings.l and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 the Respondent, Kitty Clover, Division of
Fairmont Foods, Omaha, Nebraska, its officers.
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i The General Counsel has excepted to certain credibility findings made bs
the Administratie Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with repect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91
NL.RB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF IHE CASE
IRWIN KAPLAN, Administrative Law Judge: This consoli-
dated proceeding was heard in Omaha, Nebraska, on Au-
gust 29, 30, and 31, 1977. The charges in Case 17-CB- 1741
were filed by Barbara Nicola, an individual, on April 14,
1977, against Teamsters Local 554 (herein called Respon-
dent Union), amended thereto on April 28, 1977. The
charges in Case 17-CA-7639 were filed by Barbara Nicola
on April 28, 1977, against Kitty Clover, Division of Fair-
mont Foods (herein called Respondent Employer). The
aforesaid charges culminated in a consolidated complaint
dated May 27,. 1977, alleging principally that Respondent
Employer delegated sole authority to Respondent Union to
determine Nicola's seniority status: that said Respondent
Union based Nicola's seniority status on the date she be-
came a member of Respondent Union; that Respondent
Employer acquiesced in the aforesaid determination; and
that Respondent Employer and Respondent Union (collec-
tively herein called Respondents), thereby violated Section
8(a)(3) and (1) and Section 8(b)(2) and (1)(A) of the Na-
tional Labor Relations Act. as amended (herein the Act),
respectively. Respondents filed timely answers denying the
substantive allegations. Further, the parties are in dispute
as to whether Barbara Nicola was a supervisor within the
meaning of' Section 2(11) of the Act at an) time material
herein.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel' and Respondents. I
make the following:
FtNI)INGS Oi. FA('T
i. JURISDI('iION
Respondent Employer is engaged in the manufacture and
sale of snack foods and owns and maintains multistate fa-
cilities, including a plant in Omaha. Nebraska, the facility
involved herein. During the past 12 months Respondent
EImployer in connection with the operation of' its Omaha.
Nebraska. facility purchased goods and materials in excess
of $50,000 directly from points located outside the State of
Nebraska. Respondent Employer admits, and I find, that
the Respondent Employer is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR OR(;ANIZAiiON
It is admitted and I find that the Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
111. IHE Al I.E (EI) LUNFAIR IABOR PRACTICES
A. Background
Respondent Employer has been a party' to a master
agreement with the Central and Southern Conferences of
Teamsters (herein International) for many years covering
multistate locations, including a facility in Omaha. Ne-
braska, the location involved herein. Teamsters Local 204,
a constituent member of the International, serviced the
Omaha employees in separate units of sales employees,
warehousemen and drivers. and production employees and
negotiated addenda to the master agreement for each unit.
Approximately 6 years ago Teamsters Local 204 merged
with Teamsters Local 554 (Respondent Union), the current
collective bargaining representative for all of Respondent
r The General Counsel's unopposed motion to correct the transcript in the
manner set forth in the attachment to his brief marked "Appendix" is hereby
granted.
238 NLRB No. 104
788
KITTY CLOVER, DIVISION OF FAIRMONT FOODS
Employer's represented Omaha employees. Respondent
Employer and Respondent Union commenced negotiating
an addendum to the most recent master agreement in
March or April 1976. For the first time the parties com-
bined the warehouse and drivers unit with the production
and maintenance unit in one agreement (addendum No.
2B) effective by its terms from May I, 1976, through April
30, 1979.2 In order to comply with equal employment op-
portunity regulations the parties changed all previous refer-
ences to the classification "foreman" to "working foreper-
sons." The production unit did not have a classification
"foreman." Barbara Nicola, the Charging Party herein, had
been designated packaging superviosr since May 1967. and
on that basis she had been excluded from the bargaining
unit. The parties in negotiating the most recent addendum
agreed to include the classification "working foreperson" in
the packaging department and cover Nicola in the bargain-
ing unit. Sometime between June and August 1976, Nicola
met with Ralph Saar, business representative of Respon-
dent Union, at the Union office and applied for member-
ship. Saar told Nicola that the parties were adding a new
classification, "foreperson," in the new contract (addendum
No. 2B) which would cover her, and she could not get into
the Union until said contract was signed. Maurice Archer,
Respondent Employer's labor relations manager and chief
negotiator, contacted Respondent Union's Business Repre-
sentative, Saar. shortly before negotiations commenced on
the current addendum to advise that he was going to pro-
pose that the classification "working foreperson" for the
production (packaging) department be added to the bar-
gaining unit. Sometime during the course of approximately
15 bargaining sessions, union steward Bernice Nolan in-
quired regarding the seniority of the "working foreperson"
(Nicola), as this was now a new classification for produc-
tion employees. It was Archer's unopposed position that
seniority would commence at the time the contract (adden-
dum) was ratified. The parties also agreed that all money
items would be retroactive to May 1, 1976, the effective
date of the new contract. In October 1976. Plant Manager
Richard Sawyer, who was not actively involved in negotia-
tions. on learning that the contract (addendum) was rati-
fied, notified Nicola that as of that date she would be work-
ing foreperson and her job would be covered by the
bargaining unit. On or about March 3,1977., Sawyer tele-
phoned Saar and advised him that he was relieving Nicola
from her position as "working foreperson" because she was
no longer communicating with production employees and
was not effective. Either later that day or shortly thereafter,
Sawyer, in the presence of Lonnie Dineen, assistant plant
manager, notified Nicola that she was being relieved of her
position because she missed 6 days of work since January I
and because he believed that Chuck James would do a bet-
ter job. Nicola inquired, about her seniority, to which
Dineen advised that it commence as of October 1, 1976.
Sawyer added that he would like to see Nicola get all her
seniority back, if Saar would go along with it. On March 9,
Nicola filed a grievance objecting to her removal as work-
ing foreperson because of the absences and further protest-
:G.C. Exh. 4.
All dates hereinafter refer to 1977 unless otherwise noted
ing her limited seniority.4 The grievance in pertinent part
reads as follows:
Richard Sawyer told me that he didn't think I could
handle the job anymore, and that he had to have some-
one that would be there everyday.... My main con-
cern is that now they tell me, I no longer have any
seniority after 14 [years,] 10 months of service. All I
have is since October of 1976.
On March 9, after Nicola filed her grievance, she and
Union Stewardess Nolan met with Sawyer and Dineen.
Sawyer apologized for mentioning Nolan's absences as a
reason for her removal, asserting that it has nothing to do
with it, but rather it was because she had problems commu-
nicating with the employees in the packaging department.
Nicola stated that she did not think it was fair to deny her
seniority for the years she served as packaging supervisor.
Sawyer asserted that her grievance should have been di-
rected against the Union and not the Company, because if
Saar agreed to count her years as supervisor toward senior-
ity, he (Sawyer) would be willing to go along with it. On
March I 1, Nicola attended and participated in a meeting of
company and union representatives, including Ralph Saar,
wherein, inter alia, Nicola's grievance was discussed. In the
main, the discussion involved the amount of seniority Ni-
cola possessed. She wanted to know why she was not enti-
tled to all her "years" of service.5 Saar told Nicola that she
lost her seniority because she had been out of the bargain-
ing unit for over I year and then read the provision in the
master agreement to her. The aforementioned provision in
the master agreement between Fairmont Foods Company
and Central Southern Conference of Teamsters reads as fol-
lows :
Section 29.11. An employee who leaves the classifi-
cation of work covered by the master agreement, but
remains in the employ of the Company in some other
capacity, may retain seniority rights upon return to the
original unit providing that he [she] returns within a
period of one (I) year unless otherwise agreed upon be-
tween Local Management and the Local Union. [Em-
phasis supplied.)
The General Counsel asserts that the Respondent Em-
ployer unlawfully delegated to the Respondent Union ex-
clusive control of Nicola's seniority status and unlawfully
advised Nicola of this control by Respondent Union. Fur-
ther, the General Counsel asserts that the Respondent
Union unlawfully based Nicola's seniority status upon the
length of time that she was a member of the Union, and as
a concomitant thereof, Respondent Employer unlawfully
acquiesced therein. Still further, General Counsel asserts
that Respondent Employer unlawfully advised Nicola that
'See G.C. Exh. 3
Nicola commenced working for Respondent Employer in May 1962. The
first 8 years of Nicola's employment were as a general factory worker. There-
after she worked as a floorlady, packer, and in quality control until she was
designated "packaging room supervisor" in May 1967. The jobs which Ni-
cola performed during the first 4 years were encompassed by the bargaining
unit, and she was a member of the Union. She worked in quality control, a
nonunit position, for I year and on March 9, 1966, signed a union with-
drawal card, (See Resp. Union Exh. 1.) In October 1976 as a member of the
bargaining unit once again, she joined the Union.
6 See Resp. Union Exhs. 3 and 4.
789
I:('CISIONS OF NATIONAL LABOR RELATIONS BOARD
her seniority was determined from the date she became a
union member. In sum, the General Counsel asserts that
Respondent Employer and Respondent Ullion violated
Sections 8(a)(3) and (I)and 8(b)(I)(A) and (2)of the Act.
respectively.
B. Nicola/'. Superv\lsor Status
The current collective-bargaining agreement for the unit
involved herein was consummated in and around mid-Oc-
tober 1976 and by its terms is effective from May 1. 1976,
through April 30. 1979. While it is undisputed that Nicola
is covered by, the current contract. the parties are in dis-
agreement as to whether her seniority should commence for
October 1976, as Respondents argue, or May 1, 1976. as
contended by the General Counsel. 'he G(eneral C'ounsel
does not dispute that Nicola was outside the bargaining
unit prior to May 1. 1976, and he is not urging a seniority
credit for that period. According to the General Counsel, as
the contract is retroactive to May 1, 1976. that is the rel-
evant seniority date. While the General Counsel does not
deem it material, he does dispute that Nicola, as packaging
room supervisor, was a supervisor within the me:lning ofl
Section 2(11 1) of the Act. Nicola testified that she was desig-
nated "packaging room supervisor tfrom MaN 1967 to
March 1977. Respondents assert that Nicola. as packaging
room supervisor, was a statutory supervisor until her re-
sponsibilities and duties were reduced in October 1976 and
her classification changed to the newly created production
unit job entitled "working foreperson." The credited and
uncontradicted testimonN discloses that during the course
of negotiations the Company proposed and the l ni on
agreed that Nicola's seniority date owould be the date the
contract was ratified (October 1976) and she was in the
bargaining unit. In the circumstances of this case. I con-
clude, contrary to the General ('ounsel. that a determiina-
tion of Nicola's status as packaging supervisor is material,
for if she was erroneously excluded from the unit. she may
he entitled to a turther seniority credit.'
The record reveals that Nicola was promoted in May
1967 to packaging room supervisor and received an hourly
wage increase of 20 to 25 cents. Immediately prior thereto
she worked in quality control, also in a nonunit capacity.
There were approximately 80 to 90 employees employed in
the Omaha plant, with the largest group, consisting of ap-
proximately 32 in number employed in the packaging room
department, headed by Nicola. The other departments.
such as shipping and receiving and transport drivers, were
headed by working foremen, and unlike Nicola, these indi-
viduals were included expressly by classification in the unit.
On the other hand, Nicola punched a timecard, as did other
production employees, and also received tilme- and-one-halt
pay for overtime work. IFurther. Nicola utilized a seniority
roster in making the work assignments within the packag-
ing department. and it appears that the work involved
therein was essentially nonskilled. She did not have the au-
thority to hire, fire, promote. lay ofil or recall employees, but
it appears that she had the authority to effectively recom-
mend some of' the aforesaid action. Thus Nicola testified
that when she was promoted. Wayne Iawger, plant man-
'See. e.g., l ,dan, orgp, Kwon urAr Diision. 172 NI RH 55s2 55 (1968).
ager at that time, told her "if' anyone was doing, they
weren't doing theirjob or whatever, fbr me to come in and
let him [L awger] know. That's how the letters jwarning no-
tice and reprimands] and everything got wrote up. any rep-
rimand at all." While Nicola testified that she did not write
the reprimands herself' and denied recommending such ac-
tion. I find that her testimonyi in this area was less than
candid and unpersuasive. Thus Shop Stewardess Bernice
Nolan credibly testified that in June. 1976 she observed
Nicola point a finger at former employee Barbara Barrett
and state to Assistant Plant Manager Dineen. "You fire her
right now."[)ineen then grabbed Barrett by the neck and
told her to punch out. Barrett has not returned to work.
According to Nicola, Dineen brought to her attention that
Barrett and another employee were not maintaining pro-
hduction because they were talking too much. lie assertedly
instructed Nicola to tell these employees either to work
thster or he was going to separate them. Barrett assertedly
remarked, "Bullshit." and Nicola thereon reported Barrett's
response to [)ineen. Nicola testified that while she (Nicola)
was talking to Dineen. Barrett came over and said. "You
big tat pollack bitch." Dineen told Barrett to punch out and
go home., assertedly without any reconimendation from Ni-
cola. On the basis of mn observation of Nolan and Nicola,
and consideration of' what is reasonably plausible. I am not
convinced that N icola did nothing other than transmit
l)ineen's remarks to Barrett. As I hase pieviouslx credited
Nolan's testimony regarding this incident, I reject Nicola's
denial that she recommended that any action be taken
against Barrett.
Nolan also witnessed other incidents involving steps
taken by Nicola which led to adverse action or reprimands
against ernployees in the packaging department. Thus Plant
Mianager l.awger issued ,a warning letter to Carmella Fisi-
c.aro conta;ining therein the following:
IThis letter serves as a w arning otf your dismissal due
to insubordination to your supervisor. Barbara Nicola.
I he witness to your insubordination was Bernice No-
lan. our union stewardess, who was standing hby your
machine at the time of' your outburst.
You were sent home today May 23, 1974. at 11:30
a.m. lfor a 3-day period without pay. Should an in-
stance such .Is this occur again, you will be terminated
firomi the emplohiyment of' Kitty C loser lmmeti lre!.
W\I1. I.awger
Plant Manager',
As packaging room supervisor. Nicola reported to either
the plant manager or the assistant plant manager. The rec-
ord discloses, however, that for substantial periods of time.
the Respondent Employer did not employ an assistant
plant manager. In addition, the record discloses that at var-
I Nicola conceded that Nolan wlitnessed the incident Ihus she testified
that "she INolan] heard what was going on out there."
KResp. tnion xh 8.
l0 See Resp t nion I:xh 2 wherein Nicola related still another incident ofi
insubordination. While Nicola concedes the aiccuracv of the contents therein
Irand her signature, she denies authorship (.t the letter and doesn't recall sign-
ing or hlaving read it. She testified that "it I signed it, I didn't know what it
,as all a.bout or alnsthing" Noting that Nicola's lestimony was equivocal, it
lends to support m) pres ious conclusion that she was less than candid in
describing her roll oiv-a oi, the emplosees under her supervision.
790
KITTY (.OV\'ER. IVISION OF FAIRMONTI FOODS
ious times during the course of the year, including a I-
month vacation, former Plant Manager Lawger was away
from the plant. According to Nicola. on such occasions. in
the absence of an assistant plant manager, she reported to
Lawger's secretary. Carol Strickland. However, it appears
that Nicola checked with Strickland only with regard to the
production schedule. Thus Nicola testified that Strickland
was not familiar with the operations of the packaging de-
partment. and on occasions when lawger u':ls awasy frolll
the facility fbr weeks at a time, she (Stickland) did not
spend any of her time in the department. The foregoing
tends to show that for substantial periods of time. Nicola
was the only individual with the familiarity with the opera-
tions and the responsibilities for day-to-day supervision
over the employees in the department. Nicola described her
duties generally as "walkling] up and down and makling}
sure everyone was doing their work and everything wias
running right." Further, the record reveals that she was the
highest paid employee in the dapartment. On the basis of
the entire record. noting particularly that as packaging
room supervisor, employees were required to f'ollow Nico-
la's instructions or face disciplinary action and that Nicola
could effectively recommend such action, I find that she
was a supervisor within the meaning of Section 2(1 I I of the
Act until Octoher 1976. T1 Thus Nicola. as packaging room
supervisor. ssas not erroneously excluded trom the bargain-
ing unit."
(C. . Ilh'ged ,h(h)I(J), t (2). and) 8(a)(3) ( onedt, [
1The General Counsel asserts that the record is replete
with voluminous evidence showing that Respondent Enm-
ployer unlawtsfully delegated to Respondent Union autono-
mous control over Nicola's seniority. IFurther, the General
('ounsel asserts that Respondent Ul1nion used its control un-
lawfull? and discrinminatorilv within the meaning of Section
8(b)12) and (I)(A) b3 predicating its determination on the
length of time Nicola maintained membership in the
Union. Still further, the General Counsel asserts that the
Respondent Employer unlawfully acquiesced in the manner
in which Respondent Union limited Nicola's seniorit3 as set
fiorth hereinaboxve. TIhe General Counsel relies largely on
the Board's decisions in The Cunleo Eal.tcrrt Prc..s of Penn-
/ylrania, Inc., 168 NL.RB 523 (1967): and ldam.s C'orporal-
rio .. squpra, both of which I find are factuall 3 distinguish-
able. Thus in Cunco Eavlern Press, Inc., the union caused
the compan' to place the discriminatees' seniority behind
that of' other employees solely on the basis of their union
membership. In .-Idarz (orp., as previously noted. unlike
the situation herein, the discriminatee had been erroneouslx
excluded from the bargaining unit. In an! event. it was held
therein that the union caused the company to deny the dis-
criminatee the proper seniority credit fbr the additional rea-
son that said discriminatee has not supported the union's
I Nolan credibhl tIestiied that afler October I. I976. Nicola: no longer
gave her time offI if requested. hut directed her to Assistlnt Plant Manager
Dincen. It is 1Is,) noled that w hen Nicol,'s classikticion was changed to
"working lreperson" in ()coher 1976 her health and u.elfre cWerage' was
changed frorl the cornpans (nallnil) plan to, the union plan in ;accordance
with the cntralct fr lunit enipl.sees
I` ( :l'A.,ti v. ( orporation. Aokrn Aurl, Di'i,,.X, .1 lit ,, R. ,,,' X.r , boodv
(Comrepary, 172 NI RtB >5 IL'tOi
organizational efforts. In contrast. the record in the instant
case reveals that Nicola was not denied continued seniority
because she failed to maintain membership or otherwise
support the Union, but rather because of contractual provi-
sions which had eliminated seniority for employees who
performed nonunit work for I year or more under classifi-
cations not covered by the contract." Saar credibl1 testified.
with corroboration from Nolan, that he explained to Nicola
at the grievance meeting on March I I the basis for her loss
of seniority and showed her the applicable provision in the
"Red Book" (master agreement). Noting that I have previ-
ously found Nicola less than candid as a witness. I reject
her denial that the "Red Book" provision wuas discussed or
shown to her.
The Respondent Union argues convincingly that it was
concerned with protection of seniority insofar as it related
to unit work. not union membership. This is evidenced, in-
wer alia, by Nicola's testimony regarding her reapplication
for union membership during the summer of 1976. Thus
Nitola testified that in June 1976 Union Representative
Saar told her that a new classification. "working foreper-
son." sould be included in the next contract and that she
would have that classification. Hlowever, Saar added that
there swas nothing that could be done at that time and she
could not get into the unit or the lnion until the contract
was signed." Nicola conceded that Saar never linked read-
mission to the Union to paynment of dues. In fact. Nicola
admitted that no one fromn the C