Local 50, American Bakery, Etc., Union

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 233 (N.L.R.B. 1963)

LOCAL 50, AMERICAN BAKERY, ETC., UNION
APPENDIX
233
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage affiliation with Agricultural Workers Organizing
Committee, AFL-CIO, or any other labor organization, by discharging our em-
ployees, or by discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT interrogate in an unlawful manner our employees concerning
their union affiliation, interests, and activities; threaten them with reprisals be-
cause of union affiliation and activities, or hold out inducements or promise of
benefits if they will withdraw from, or refrain from union affiliation and ac-
tivities; prohibit union activities on our employees' own time; or in any other
manner interfere with, restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations, to join or assist the above-
named Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as authorized by the National Labor Rela-
tions Act.
WE WILL offer George Gonzales immediate and full reinstatement to the po-
sition he formerly held, or its equivalent, without prejudice to seniority or other
rights and privileges, and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him.
V. C. BRITTON CO.,
Employer.
Dated------------------- BS'-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, 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.
Employees may communicate directly with the Board' s Regional Office, 830
Market Street, Room 703, San Francisco, California, 94102, Telephone No. Yukon
6-3500, Extension 3191, if they have any question concerning this notice or compli-
ance with its provisions.
Local 50, American Bakery & Confectionery Workers Union,
AFL-CIO [Ward Baking Company] and Charles Fisher. Case
No. 2-CB-3600. June 27, 1963
DECISION AND ORDER
On March 26, 1963, Trial Examiner Ivar H. Peterson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Union had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from, and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondent and the General
Counsel filed exceptions and supporting brief s.1
'The Respondent's request for oral argument is hereby denied as the record, exceptions,
and briefs adequately present the issues and positions of the parties
143 NLRB No. 41.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner 2
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following amendments :
(1) Paragraph 2(a) of the Recommended Order shall be amended
to read as follows :
Notify Ward Baking Company in writing, and send a copy
thereof to Charles Fisher, that it has withdrawn the objection to
the reinstatement of the said Charles Fisher which was expressed
by the Union beginning November 8, 1962, and that it has no
present objection to his reinstatement.
(2) The paragraph of the notices beginning "WE WILL notify etc."
shall be amended to read :
WE WILL notify Ward Baking Company that we withdraw our
objection to the reinstatement of Charles Fisher, which we ex-
pressed beginning November 8, 1962, and that we presently have
no objection to his reinstatement, and we will serve a copy of
said notice on Charles Fisher.
2 As set forth in the Intermediate Report, the Respondent's bylaws and the constitution
of its International each contain a provision which states "A withdrawal card shall sig-
nify that the member has voluntarily withdrawn from his local's rolls of active members
and has withdrawn from holding or seeking employment within the work or geographic
jurisdiction of this International or his local union." In view of the specific findings of
the Trial Examiner, which we are adopting, that the provision in question was not in the
contract between the Respondent and the Company and, therefore, cannot avail the
Respondent as a defense, we do not reach or pass upon the issue of the legality of such
a provision, if it were a part of the contract.
3 Below the signature line, the penultimate sentence is changed to read: "This notice
must remain posted for 60 consecutive days from the date of positing . . ." instead of
stating "60 consecutive days from the date hereof "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on November 16, 1962 , 1 by Charles Fisher, the General
Counsel of the National Labor Relations Board , by the Regional Director for the
Second Region , issued a complaint on December 28, alleging that Local 50,
American Bakery & Confectionery Workers Union , AFL-CIO, herein called the
Respondent or the Union , had engaged in unfair labor practices within the meaning
1 All dates refer to 1962 , unless otherwise indicated.
LOCAL 50, AMERICAN BAKERY, ETC., UNION 235
of Section 8(b)(1) (A) and (2) of the Act in that it had caused Ward Baking
Company, herein called the Company, to discriminate against Fisher in violation of
Section 8(a) (3) by causing the Company to refuse to reinstate Fisher. In its answer,
the Respondent denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Ivar H. Peterson
in New York, New York, on January 24, 1963. The General Counsel and the
Respondent were represented by counsel and participated in the hearing. Counsel
for each of the parties presented oral argument at the conclusion of the hearing,
and briefs have been received from both, which have been considered?
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Ward Baking Company, a New York corporation with its principal office at
475 Fifth Avenue, New York, New York, is engaged in the production, sale, and
distribution of bakery goods and related products at various plants in New York,
New Jersey, and Maryland, including its Bronx, New York, plant which is involved
in this proceeding. During the past year, which is a representative period, the
Company shipped products valued in excess of $50,000 from its plants to States
other than the State in which the plants are located. I find that the Company is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that it will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 50, American Bakery & Confectionery Workers Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
At issue here is the legality of the Union's action in causing the Company to re-
fuse to reinstate the complainant, Charles Fisher, at the conclusion of a strike, con-
fined to the Company's Bronx plant, which began September 1 and ended Novem-
ber 7. Fisher, who had been employed at the Bronx plant since November 1932,
most recently in the maintenance department, was a member of the Union, joined
the strike, and picketed. On September 22, during the strike, he obtained employ-
ment at the Newark plant of the Company, which is a separate bargaining unit
represented by the Union's sister local, Local 84. On October 29 Fisher requested
and obtained a withdrawal card from the Union. The strike ended on November 7
with the signing of a settlement agreement by which the basic agreement that had
terminated on August 31 was renewed, effective September 1, with modifications.
The following day, November 8, representatives of the management and the Union
met for the purpose of arranging for the recall of employees, which involved prob-
lems of job placement as well as order of recall occasioned by the fact that certain
operations of the Company at the Bronx plant were being curtailed or discontinued.
Since only about 60 out of the approximately 450 employees were to be recalled
immediately, the parties at the November 8 conference used a consolidated plant-
wide seniority list in determining the order of recall. When Fisher's name (35th
on the list) was reached, the Union took the position that he had obtained a "trans-
fer" or withdrawal card and was not entitled to recall. Accordingly, his name was
scratched on the list and he was passed over. Sometime during the week following
November 8, Fisher was informed that he was being laid off from his Job at the
Newark plant. He then went to the Bronx plant to inquire about reinstatement.
John F. McGuire, the personnel manager, who had participated in the November 8
conference, told him that although the Company was willing to put him back to
work in the Bronx plant the Union objected. Within the next few days the Union's
shop steward, Angelo Vangone, and business agent, Jack Killoran, separately told
Personnel Manager McGuire that Fisher was not to be brought back to work because
he had obtained a withdrawal card from the Union.
The complaint alleges that the Respondent caused the Company to discriminate
against Fisher because Fisher "had obtained a withdrawal of membership card from
Respondent" and/or "worked for Ward during the strike." The Respondent, while
not disputing that it objected to Fisher's reinstatement, contends that he quit his
2 BY order dated February 18, 1963, a stipulation of the parties and an attached agree-
ment were received in evidence as Joint Exhibit No 1A.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment at the Bronx plant and , in consequence , lost his seniority and his right
to be reinstated upon termination of the strike . In support of its position, the
Respondent relies upon a provision in the international constitution ( article XIX,
section 1) and in its bylaws (article XIV, section 1) which states: "A withdrawal
card shall signify that the member has voluntarily withdrawn from his local's rolls
of active members and has withdrawn from holding or seeking employment within
the work or geographic jurisdiction of this International or his local union." [Em-
phasis supplied.] Admittedly, this provision had not been incorporated into the
collective-bargaining agreement with the Company, however, the Union argues in
its brief that by custom and practice the withdrawal card provisions quoted above
"had become part of the seniority agreements of the local union in its relations with
the employers with whom it had collective bargaining agreements." In addition,
and apart from its reliance on the withdrawal card provision in its bylaws, the
Respondent urges that Fisher in fact had quit his job at the Bronx plant because he
so informed the Union on October 29 when he obtained his withdrawal card.
Fisher testified that when he was hired by the Newark personnel manager he was
told that the job was temporary and that he would have his job at the Bronx plant
when the strike ended. It is undisputed that Fisher did not, prior to or after the
November 8 meeting, inform the Bronx management that he was quitting his em-
ployment at that plant; indeed , Personnel Manager McGuire testified that he first
learned Fisher was working at the Newark plant during the November 8 conference
when he was so informed by Louis Genuth, secretary-treasurer of the Respondent.
Moreover, McGuire stated that but for the Union's objection Fisher "would have
been advised to report either November 11th or the 18th when the bulk of the other
employees were notified to report." Tim McIntyre, a business agent of the Respond-
ent, testified that Fisher, when he appeared at the Union's offices on October 29 to
secure a withdrawal card, stated to McIntyre that his job at the Newark plant was
permanent and, in response to McIntyre's inquiry whether that meant he had left
his employment at the Bronx plant, answered that it did. McIntyre further testified
that he apprised Secretary-Treasurer Genuth, Shop Steward Vangone, and Business
Agents Killoran and Huller of the substance of his conversation with Fisher, telling
them that Fisher "had told me that he was quitting his job in the Bronx, and that
he had come over to our office for a withdrawal card to Local 84 "
The purport of McIntyre's testimony regarding his conversation with Fisher on
October 29, as summarized above, is that Fisher's statement that he had quit the
Bronx plant, rather than his action in securing a withdrawal card, was the significant
factor motivating the Union's subsequent opposition to his reinstatement However,
at the November 8 conference, which was not attended by McIntyre, Genuth told
Personnel Manager McGuire, when Fisher's name was reached on the seniority list,
according to McGuire's uncontradicted testimony, that Fisher "had taken a transfer
card and . . . was not entitled to recall . . . . . . A few days later, again as testified
by McGuire and not controverted by any witness of the Respondent, both Shop
Steward Vangone and Business Agent Killoran informed McGuire that Fisher was
not to be reinstated because he had taken out a withdrawal card. In these con-
versations with McGuire, the Union's representatives clearly stated that Fisher's
ineligibility for recall stemmed from his having obtained a withdrawal card; they
did not attribute his loss of employment rights to any other independent act or state-
ment on his part. I credit the testimony of Fisher and McGuire and find that Fisher
did not tell McIntyre that he had quit the Bronx plant or that his job at the Newark
plant was permanent; I further find that the Union's representatives told Personnel
Manager McGuire that Fisher was not to be recalled because he had taken out a
withdrawal card from the Union and thus had quit his employment .3
The agreement between the Company and the Respondent, which terminated on
August 31 and was renewed with modifications by the settlement agreement of
3 Fisher testified that he came to the Union's office on October 29 to pay his dues; that
he asked McIntyre when he 'thought the strike might end, to which McIntyre replied, "I
don't know ; maybe never" ; and that he then determined to secure a withdrawal card
McIntyre, on the other hand, testified Fisher told him lie had been sent by a delegate of
Local 84 to obtain a withdrawal card. On this aspect of their conversation I credit
McIntyre and find that Fisher's purpose in visiting the office was to arrange to transfer
his membership to Local 84. Although the record does not disclose whether Local 84 had
a union-shop agreement at the Newark plant, I infer that Fisher, having been employed
there just over 30 days, had been requested to pay dues to Local 84 and, in order to do so
without paying an initiation fee, found it necessary to obtain a withdrawal card from the
Union.
LOCAL 50, AMERICAN BAKERY, ETC., UNION 237
November 7, provided as follows with respect to loss of seniority (paragraph 5(c)
of Joint Exhibit No. 2) :
(c) Seniority rights shall terminate if an employee:
(i) voluntarily quits
(ii) is discharged for just cause
(iii) fails to return to work within seven (7) days notice by registered or certified
mail to his last known address (unless unable to because of illness of
which the company receives written notice). A copy of the company's no-
tice shall be simultaneously served by mail upon the Local Union.
(iv) is laid off for the following period of time: employee with less than 3
years continuous service-60 days.
employees with more than 3 years continuous service and less than 4
years-90 days.
employees with more than 4 years continuous service and less than 5
years-120 days.
employees with more than 5 years continuous service-180 days.
(v) In the event of the permanent shut down of a department of any plant the
employee who is laid off shall retain seniority for a period of one year
for purpose of recall only.
There is nothing in the foregoing contractual provision that can reasonably be said
to have had the effect of terminating Fisher's seniority. He had not voluntarily
quit, had not been discharged for cause, had not failed to return pursuant to notice
of recall, nor had he been in layoff status for the required period. I find, therefore,
in accord with this seniority provision and McGuire's testimony set forth above, that
Fisher had not lost his seniority, was eligible for recall, and would have been recalled
on November 11 or 18, but for the Union's insistence that he was not entitled to rein-
statement. Nor is there support in the record for the contention that the provision in
the Union's bylaws, that by obtaining a withdrawal card a member thereby signifies
that he "has withdrawn from holding or seeking employment within the work or
geographic jurisdiction of . his local union," had become a part of the contract
between the Company and the Union, either by direct incorporation therein or by
custom or practice. Secretary-Treasurer Genuth admitted that the bylaw provision
had not been incorporated into the agreement. Testimony adduced by the Union to
the effect that employees (either of the Company or other employers subject to the
same basic agreement) who had obtained withdrawal cards and were thereafter reem-
ployed, had seniority dating only from the date of rehire, falls far short of establishing
that the act of obtaining a withdrawal card, in and of itself, operated to terminate
such seniority as they had accumulated prior to taking out a withdrawal card.
I find that there was no contractual arrangement between the Company and the
Respondent whereby the issuance of a withdrawal card to an employee, without
more, served to terminate the employment relationship. As to Fisher, I find that the
Respondent caused the Company to refuse to reinstate him because he had obained
a withdrawal card, and that in so doing the Respondent was not acting in compliance
with any contractual provision but in derogation of Fisher's rights under the operative
agreement .4
The refusal of the Company to reinstate Fisher was the direct result of the position
taken by the Respondent's representatives in the November 8 conference with Person-
nel Manager McGuire and in subsequent conversations with him. In thus insisting
that the procurement of a withdrawal card from the Union was the equivalent of a
voluntary quit, a result not sanctioned by the contract but indeed contrary to its provi-
sions governing loss of seniority, the Respondent caused the Company to discriminate
against Fisher. The Respondent's real purpose, I find, was to enforce as a condition
of employment its bylaw provision that by obtaining a withdrawal card a member
withdrew "from holding or seeking employment" within the work or geographic
jurisdiction of the Respondent,5 and thereby to encourage employees to remain active
members of the Union. Accordingly, I find that the Respondent caused the Company
* The complaint further alleged that the Respondent caused Fisher not to be reinstated
because he worked at the Company's Newark plant during the strike. Although the matter
is by no means free from doubt, I am not persuaded that an inference to that effect is
sufficiently supported by the record.
fi Stated otherwise, what the Union's position comes down to is that only active mem-
bers, excluding those who have taken out a withdrawal card, are entitled, under this pro-
vision in its bylaws, to hold or seek employment within the Union's work or geographic
jurisdiction. This, it seems to me , is tantamount to attempting to maintain closed-sliop
conditions.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discriminate against Fisher in violation of Section 8(a)(3) of the Act and that
thereby the Respondent violated Section 8(b) (2) and (1) (A) of the Act 6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Employer described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent caused the Employer herein to refuse to rein-
state its employee, Charles Fisher, in violation of Section 8(a) (3) of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2),
of the Act, it will be recommended that Respondent cease and desist therefrom and
take certain affirmative action to effectuate the policies of the Act. It will be recom-
mended that the Respondent notify the Employer, in writing, and serve a copy upon
Fisher, that it withdraws its objection to the reinstatement of Fisher at the Bronx
plant. It will also be recommended that the Respondent make whole Fisher for any
loss of pay he may have suffered as a result of the discrimination against him, such
backpay liability to terminate 5 days after notification to the Employer that it has
no objection to Fisher's reinstatement. The amount of backpay shall be computed
in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289,
with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Ward Baking Company is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent , Local 50, American Bakery & Confectionery Workers Union,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By causing Ward Baking Company to refuse to reinstate its employee, Charles
Fisher, in violation of Section 8(a)(3) of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A)
and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Local 50,
American Bakery & Confectionery Workers Union, AFL-CIO, its officers, representa-
tives, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Ward Baking Company to discriminate against
its employees in violation of Section 8(a) (3) of the Act, as amended by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) In any like or related manner restraining or coercing employees of Ward
Baking Company in the exercise of rights guaranteed them in Section 7 of the
Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Notify Ward Baking Company, in writing, and send copy thereof to Charles
Fisher, that it has no objection to the reinstatement of the said Charles Fisher
(b) Make whole Charles Fisher for any loss of pay he may have suffered as
a result of the discrimination against him, in the manner set forth in "The Remedy"
section of the Intermediate Report
(c) Post in conspicuous places in its business offices, meeting halls. and all
places where notices to members are customarily posted, copies of the notice
See Brunswick-Balke-Collender Company, 135 NLRB 574; International Union of
Operating Engineers, Local No 1£, AFL-CIO (Engineers Limited and Pacific Pipeline
Construction Company), 135 NLRB 1252.
LOCAL 50, AMERICAN BAKERY, ETC., UNION 239
attached hereto marked "Appendix." 7 Copies of said notice, to be furnished by
the Regional Director for the Second Region, shall, after being duly signed by the
Respondent's authorized representative, be posted immediately upon receipt thereof
and be maintained for 60 consecutive days thereafter. Reasonable steps shall be
taken to insure that such notices are not altered, defaced, or covered by any other
material.
(d) Sign and mail sufficient copies of said notice to the Regional Director for
the Second Region for posting by Ward Baking Company, at all locations where
notices to its employees are customarily posted, if the Company is willing to do so.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Intermediate Report and Recommended Order, what steps it has
taken to comply herewith .8
7In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
8 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 50, AMERICAN BAKERY & CONFECTIONERY
WORKERS UNION, AFL-CIO, AND TO ALL EMPLOYEES OF WARD BAKING COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause Ward Baking Company to discrimi-
nate against its employees in violation of Section 8(a)(3) of the Act, as
amended by the Labor-Management Reporting and Disclosure Act of 1959
WE WILL NOT in any like or related manner restrain or coerce employees
of Ward Baking Company in the exercise of rights guaranteed them in Section 7
of the Act, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL notify Ward Baking Company that we have no objection to the
reinstatement of Charles Fisher, and will serve a copy of said notice on
Charles Fisher.
WE WILL make Charles Fisher whole for any loss of pay he may have suffered
because of our action in causing Ward Baking Company to discriminate against
him.
LOCAL 50, AMERICAN BAKERY & CONFECTIONERY
WORKERS UNION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building , 745 Fifth Avenue, New York, New York, 02108, Telephone
No. Plaza 1-5500, if they have any question concerning this notice or compliance
with its provisions.