Tid-Bit Products Co.

National Labor Relations Board - Board Decisions

Dec 5, 1977

233 N.L.R.B. 972 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tid-Bit Products Company, Division of Fairmont
Foods Company and Rosemary Bogden
Meat Cutters District Union 427, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO and Rosemary Bogden. Cases 8-CA-
10355 and 8-CB-3150
December 5, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 22, 1977, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions of the Administrative Law
Judge, to modify his remedy so that interest is
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977),2 and to adopt his
recommended Order, as modified.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Tid-Bit Products Company, Division of Fair-
mont Foods Company, Cleveland, Ohio, its officers,
agents, successors, and assigns, and Respondent
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in said
recommended Order, as so modified:
1. Substitute the following for paragraph A, I(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing any employee in the exercise of
rights guaranteed by Section 7 of the Act."
2. Substitute the following for paragraph B, I(d):
"(d) In any other manner restraining or coercing
any employee in the exercise of rights guaranteed by
Section 7 of the Act."
3. Substitute the attached notices for those of the
Administrative Law Judge.
1 Respondent Meat Cutters District Union 427 has excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
233 NLRB No. 150
with respect 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 NLRB 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.
In the section of the Administrative Law Judge's Decision entitled "The
Remedy" he inadvertently found that Bodgen was unlawfully laid off on
January 30, 1976, instead of on the correct date of July 30, 1976, and
ordered that she be made whole from that incorrect date. We hereby correct
such inadvertency by finding that backpay shall accrue from July 30, 1976.
2 See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
3 In his recommended Order, the Administrative Law Judge uses the
narrow cease-and-desist language, "in any like or related manner," rather
than the broad injunctive language, "in any other manner," which the Board
traditionally provides in cases involving serious 8(aX3) discriminatory
conduct. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941); Electrical Fittings Corporation, a subsidiary of I-T-E Imperial
Corporation, 216 NLRB 1076 (1975). Accordingly, we shall modify the
Administrative Law Judge's recommended Order and notices.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in Meat
Cutters District Union 427, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, by posting employees jobs or other-
wise discriminating against them with respect to
their hire or tenure of employment for reasons
prohibited by Section 8(a)(3) of the National
Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed by Section 7 of
the Act.
WE WILL offer to Rosemary Bogden immediate
and full reinstatement to the job of lab tester or, if
that job no longer exists, to a substantially
equivalent position, with the right to claim and be
given the job of lab tester if and when such job
again exists, without prejudice to her seniority or
other rights or privileges, and, jointly and several-
ly with the above-named Union, make Rosemary
Bogden whole for all wages lost as a result of the
discrimination against her, plus interest.
TID-BIT PRODUCTS
COMPANY, DIVISION OF
FAIRMONT FOODS
COMPANY
972
TID-BIT PRODUCTS COMPANY
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Tid-Bit
Products Company, Division of Fairmont Foods
Company, to post employees' jobs or otherwise
discriminate against employees with respect to
their hire or tenure of employment because they
present grievances or engage in other activity
protected by the Act, nor will we threaten
employees with reprisals because they present
grievances or engage in other activities protected
by the National Labor Relations Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights
guaranteed them by the Act.
WE WILL notify Tid-Bit Products Company,
Division of Fairmont Foods Company, in writing,
with a copy to Rosemary Bogden, that we have
no objection to her full reinstatement as lab
tester, or to a substantially equivalent job if the
lab tester job no longer exists. In the latter case,
she will also have the right to the first lab tester
job that is established, if and when it is.
WE WILL, jointly and severally with the above-
named Company, make Rosemary Bogden whole
for all wages lost as a result of the discrimination
against her, plus interest.
MEAT CUTTERS DISTRICT
UNION 427,
AMALGAMATED MEAT
CUTTERS AND BUTCHER
WORKMEN OF NORTH
AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
consolidated proceeding was heard before me at Cleveland,
Ohio, on February 17, 1977, pursuant to charges filed on
August 6, 1976, by Rosemary Bogden and a consolidated
complaint issued on October 29, 1976, and amended at
hearing. The complaint alleges that Meat Cutters District
I The facts set forth herein are based on a synthesis of the credited
aspects of the testimony of all witnesses, the exhibits, and careful
consideration of the logical consistency and inherent probability of the facts
found. Although I may not, in the course of this decision, advert to all of the
record testimony or documentary evidence, it has been carefully weighed
and considered and to the extent that testimony or other evidence not
mentioned herein might appear to contradict the findings of fact, that
evidence has not been disregarded but has been rejected as incredible,
lacking in probative worth, surplusage, or irrelevant.
2 The contractual provisions relating tojob posting are as follows:
Union 427, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, herein called the
Union, caused or attempted to cause Tid-Bit Products
Company, Division of Fairmont Foods Company, herein
called the Employer or the Company, to terminate or lay
off Rosemary Bogden by posting her job of lab tester
because Bogden had engaged in union or other protected
activities. It is further alleged that the Company acquiesced
and posted the job resulting in the layoff of Bogden, and
thereafter refused to reinstate her to the position of lab
tester because of the Union's request and/or because she
engaged in statutorily protected activities. Additionally, it
is alleged that the Company unlawfully threatened Bogden
with discharge, and the Union made unlawful threats and
other statements to Bogden. Accordingly, the complaint
alleges that the Union violated Section 8(b)(XI)(A) and (2)
of the Act, and the Employer violated Section 8(a)(1) and
(3) of the Act.
Upon the entire record, including my observation of the
witnesses as they testified, and after careful consideration
of the posthearing briefs by the parties, I make the
following:
FINDINGs AND CONCLUSIONS
I. THE EMPLOYER'S BUSINESS
The complaint alleges, the Company and the Union
admit, and I find that the Employer maintains its principal
office in Cleveland, Ohio, where it is engaged in the
business of meat processing; that the Employer annually,
in the course and conduct of its business operations, ships
goods valued in excess of $50,000 directly from its
Cleveland, Ohio, facility, to points located outside the State
of Ohio; and that the Employer is, and has been at all times
material to this case, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I1. THE LABOR ORGANIZATION
The complaint alleges, the Company and Union admit,
and I find that the Union is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Factrs
Throughout the sequence of events related herein there
has been a collective-bargaining agreement in effect
between the Company and the Union covering employees,
including Rosemary Bogden, at the Cleveland facility.2
19. All job openings are to be posted for bid for a period of one ( I )
week.
32.21 Shift Transfers. Employees within a classification shall be
permitted to transfer on the basis of their classification seniority to
another shift when a permanent vacancy occurs in that classification on
another shift. An employee desiring a shift transfer must make a written
request when the job is posted for bids. Shift transfers shall be effective
on the Monday following the expiration of the posting period. Shift
(Continued)
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about the first of January 1976,3 a lab tester quit,
leaving Virginia Yenyo as the sole person in that position.
The vacancy was posted for bids and Helen Slivers and
Mary Jane Chanson bid for it. Chanson then withdrew her
name because she did not want to accept a wage reduction
to an apprenticeship rate. Slivers was selected, but after a
few weeks requested a return to her former job because she
could not perform the work required. The request was
granted. Plant Manager Cecil Ricker then called Union
Business Representative Raymond De Santis, and advised
him that the Company did not want to post the job again
because lab tester required skills that he did not believe any
employee currently working had. He then informed De
Santis that he thought Rosemary Bogden, who was the
least senior employee in the plant and was then laid off
from her production job, was qualified and he wanted to
try her in the job. De Santis told Ricker to go ahead and try
Bogden in the job without posting it and if any complaints
came up from other employees about not posting the job
they would handle the problem when it arose.
After securing De Santis' agreement, Ricker had Rose-
mary Bogden report to Ricker's office. Ricker explained to
Bogden that there would be an opening as a lab tester and
the Company would like her to try the job. Bogden asked
him why they were offering the job without it being posted.
Ricker replied that it had been posted in the past, but that
had not worked out, and he had discussed the situation
with De Santis and Chief Steward Belak 4 and reached
agreement that it would not be posted. Ricker explained
that it was felt that Bogden would be capable of handling
the job and the Company would like her to try it if she
would like to. Bogden assented and went to work as a lab
tester on or about January 30. 1 credit Bogden's testimony
that Ricker only told her that she would be working as a
lab tester, and did not tell her that she would also be
performing production work. Furthermore, Ricker did not
tell her that the job might later have to be posted, or inform
her of the conversation between him and De Santis
regarding possible employee complaints. This failure to
irform Bogden of the content of his conversation with De
Santis convinces me that Ricker did not then contemplate
any posting of the job would ever be required while Bogden
occupied it, and further convinces me that De Santis did
not, as he claims he did, either say to Ricker or reach an
agreement with Ricker that the job would have to be
posted if employees complained about it not being posted.5
Bogden proved to be a completely satisfactory lab tester
and worked in the position until she was removed on or
about July 30. Throughout this time all of the work she
performed, with the exception of 2 single days in March or
April when she worked in packing at Ricker's direction,
took place in the lab. There is no competent evidence
whatsoever that any employee complained about the fact
transfers made under this paragraph shall not be made more often than
once every four (4) months.
3 All events related in this decision occurred in 1976 unless it is
specifically stated otherwise.
4 Although I am persuaded from Bogden's superior credibility over that
of Ricker (who impressed me as a rather short-tempered witness given to
argument with counsel, resentful of questions directed at his actions, and
prone to a stated lack of recollection of significant conversations) that she
Bogden was working in the lab. No grievance was ever filed
over her working in the lab or the 2 days she was on the
production floor. On the first of these 2 days that Bogden
was directed to work in packing she went to Ricker and
told him that she did not think she belonged out there
because the production employees would be adverse to her
working there because of her low seniority.6 Ricker
retorted that it was his problem, not hers, and she should
go work on the floor. She did. The second time she worked
on the floor, employees were upset because she was
working in production while production people with more
seniority were laid off. After this episode Ricker told
Bogden that she would not again be put on the floor, and
she was not until after her removal from the lab tester job.
According to Ricker, Chief Steward Belak complained
three or four times between January and July that the
Company should have posted the job. Belak's testimony in
this regard under close questioning by General Counsel is
most revealing. It reads as follows:
Q. (By Mr. Lund) How many times did you tell the
other people that the job should be posted?
A. I probably said it a lot of times.
Q. How many times would you guess?
A. I don't know many.
Q. Over what period of time?
A. Over a long period of time because I believe in
posting jobs.
Q. So you were continually telling them?
A. Not continually, no.
Q. But, you were saying it over and over. How
many times?
A. A few times. I have said the job should be
posted.
Q. But, you don't have any idea how many times
you said it?
A. No.
Q. Could you estimate?
A. You can say a lot.
Q. How many times did you say it?
A. I don't know.
Q. Would you say more than five times?
A. I did not go around every day and say, "Post the
job, post the job."
Q. Between the first of January and July?
A. Maybe two, maybe one. But, I have said it.
Q. Would you say a lot of times are [sic ] only once?
A. Maybe two times at the most. If I said it twice, I
said it.
Q. Do you have any idea when you said it?
A. No, I do not.
Q. Was it in the summer, winter, do you have any
idea?
was told Belak had agreed, it is clear that Belak was not in on the original
discussion between Ricker and De Santis where the agreement was reached.
5 This conclusion is reinforced by De Santis' later testimony that when
Belak told him employees were complaining he merely told her he would
call a meeting and explain the situation to the members. Which he did not
do.
6 All of the events herein occurred in a context of layoffs and lack of
work for employees at various times, resulting in a situation where someone
was on layoff each time Bogden worked in production.
974
TID-BIT PRODUCTS COMPANY
A. No. I know I have mentioned the job should be
posted.
Significantly, the thrust of this testimony by Belak, apart
from the obvious conclusion that she is given to exaggera-
tion, is that her reason for making the alleged "complaints"
is "because I believe in posting jobs," and not because of
any employee unrest over the matter. Therefore, even if I
were to accept her version, she was the complainant, not
the employees. The first, and apparently only, notice of any
complaint that De Santis received was from Belak, a few
days before June 1, when she reported to him that some
employees were complaining that Bogden was working in
the packaging department while packaging department
employees were laid off. 7 Belak never named any specific
employee complaining nor did any other witness. The
Employer's records show that Bogden was laid off
throughout the last 3 weeks in May and the first 3 weeks in
June, therefore I cannot conclude that any employee
complaints were in fact made to Belak during that period
of time about Bogden working. I do conclude that her
report to De Santis was not based on fact and was, at best,
not accurate.
When Belak made her call to De Santis, he was preparing
to go to a convention and told her that he would call a
meeting and explain the situation to the members when he
came back. A general meeting of members was subsequent-
ly held on June 30. De Santis gave a general status report to
the members on union matters, and then opened the
meeting for questions. No one raised the question of
Bogden's seniority, and there is no evidence that the
alleged employee complaints about her working were
discussed. During the meeting, Bogden stated that she
thought she was entitled to a progression raise. De Santis
advised her that if she didn't get it, and thought she was
due one, that she should file a grievance. Bogden then
asked if equalized overtime applied in the lab.8 This
question grew out of a situation in the lab where either
Yenyo or Bogden had to come in at 6:30 a.m. on Monday
to do certain pretesting before plant operations started. On
occasion Bogden worked past 3 p.m., which was the
scheduled quitting time for the lab. Production Manager
Conway told her to leave and that she was not to get
overtime. On the other hand, Yenyo worked until 3:30 p.m.
on the days she came in at 6:30 a.m., and got paid for one-
half overtime. Yenyo has lived with Belak for 12 or 13
years and rides to and from work with her. Belak gets off
work at 3:30 p.m., and the Company allowed Yenyo to
work a one-half hour overtime rather than just sit waiting
for Belak.
I As noted earlier. I find Bogden only worked 2 days on the floor in
March and April.
8 The collective-bargaining agreement provides for overtime equalization
by departments or classifications.
I Bogden was an impressive witness who testified in a straightforward.
careful, and convincing manner with no appearance of concealment or
evasion of the truth. Belak appeared to me as an aggressive person inclined
to get angry and argue on the slightest provocation. Furthermore, her
testimony was laden with exaggeration as indicated in the extract therefrom
recited above. Insofar as De Santis is concerned, my impression of him at
heanng was that of a thoroughly decent person trying to remain above the
conflict created by Belak, while at the same time going as far as he felt he
When Bogden brought up the equalization of overtime
Belak told her to shut her mouth, that Bogden had no right
to open her mouth in the union meeting, and that she had
no right to be in the lab. Bogden responded that that was
not the question and if Belak didn't like her in the lab she
should have done something about it during her probation-
ary period not 5 months later. De Santis spoke up and
agreed that overtime should be equalized.
After the meeting ended, Bogden waited around to talk
to De Santis about her grievance. Belak came up to her and
said, "I'm going to get you for this." Belak conceded telling
Bogden she should not be raising a problem because she
should not be working. She gave conflicting testimony as to
whether or not she gave low seniority as a reason. Belak
denied telling Bogden that she was going to get her, and De
Santis said he did not hear Belak say this but, as set forth
above, testified there was no discussion at the meeting of
Bogden's seniority. I credit Bogden that Belak did tell her
to shut her mouth, that she had no right to open her mouth
at the meeting, and that Bogden had no right to be in the
lab. I further credit Bogden that Belak did say, "I'm going
to get you for this." 9
On July 9, Bogden requested and received a grievance
from Belak which she completed and signed. Belak also
signed it as steward. Bogden then took the grievance to
Ricker who suggested to her that the grievance, which
concerned her claim for a progression raise, be settled
outside the grievance procedure. Bogden expressed an
opinion that it could not be and said she wanted to file the
grievance. Ricker said he would discuss it and Steward
Belak should be present. Belak and Quality Control
Manager Jim Dale joined them.10 During the discussion
Belak opined that she did not think Bogden was entitled to
the increase and a similar grievance by another employee
had not been successful in the past. At the end of this
discussion, Ricker mentioned that he was pretty sure the
lab tester job would have to be posted. When Bogden
asked him the reason, Ricker told her that the Union was
forcing him to post it because of employee complaints.
Following the meeting, Bogden canvassed a number of
employees who worked in production as to whether they
wanted the lab tester job posted. None of them answered
that they did.
On July 14 or 16, Ricker, De Santis, Belak, and Bogden
met to discuss the grievance. According to Bogden, she was
relating her feelings about her entitlement to the progres-
sive raise when Belak screamed at her, "You're a damn liar,
shut up, don't talk like that." Thereupon, Bogden told
Ricker and De Santis that she didn't use that type of
language and didn't think she should be talked to in that
manner. To which Ricker replied, "Oh, Miss Goody
conscientiously could to respect his obligation to support the Union's
position.
'o I am persuaded there was such a meeting on July 9 as Bogden states.
Ricker does not deny the meeting was held and was not asked about it.
Belak's denial that there was any meeting other than the July 14 or 16
meeting, and her claim that De Santis got involved in the first step of
grievance are contrary to De Santis' testimony that Belak had unsuccessful-
ly represented Bogden in the first step prior to his becoming involved in the
process. I further credit Bogden's testimony relative to what happened at the
July 9 meeting because, in my opinion, she was a more credible witness than
either Ricker or Belak throughout her testimony. I conclude that Ricker
earlier asked Bogden to settle the grievance outside the grievance procedure.
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goody doesn't want to be talked to like that." Bogden
testifies further that she then stated that she thought they
were there to discuss the matter as adults, but it seemed
that she was talking with small children, and that at this
juncture De Santis told her that Belak was merely using her
normal way of speaking. De Santis then said he would
check the progressive raise matter out." Ricker spoke up at
this point and said that he and De Santis had discussed the
problem of her job posting and that it would be posted as
soon as possible. According to Bogden, Belak then turned
to her and said, "I never would have done any of this if you
had not said that at the Union meeting," and asked Bogden
if she knew that a layoff over I year meant automatic
termination. Bogden replied that she was not aware of that
and Belak said, "I want you to be."
Ricker testified that July 14 or 16 was the first time De
Santis asked him to post the job, and professed a complete
lack of recollection as to what Belak said to Bogden at the
meeting on July 14 or 16. As to De Santis' request to post,
Ricker claims De Santis called him prior to the meeting,
which was later in the day, and asked the Company to
comply with the contract and post the job. De Santis
testified that Belak did not at any time tell Bogden she was
going to get her, or in any way indicated she was going to
try to influence Bogden's continued employment on the
job. Belak denies calling Bogden a liar at the meeting, or
saying anything to the effect that she was going to get
Bogden, or indicating that she would see that Bogden's job
was posted because of grievance filing.
I credit Rosemary Bogden's version of what transpired at
the July 14 or 16 meeting (1) because she was clearly the
most impressive witness on the matter, both in demeanor
and in detailed testimony; (2) because Ricker's purported
statement to her in which he referred to her as "Miss
Goody Goody" was undenied and consistent with my
observation of him on the stand as a somewhat sarcastic
witness; (3) because I cannot believe Ricker has a complete
lack of recollection regarding Belak's part in the discussion,
keeping in mind Belak's penchant for argument; and (4)
because the bare denials of Belak and De Santis regarding
Belak's statements were general and conclusionary as
opposed to Bogden's specificity.
Within a day or two of the last meeting, the lab tester job
was posted. Mary Jane Chanson bid on it and got it.
Rosemary Bogden was then laid off on July 30 because her
seniority did not entitle her to work in the plant while
others were laid off. Bogden was subsequently recalled to
work in packing in August, and laid off again in October
for lack of work. She was thereafter recalled twice to heavy
jobs which she was physically unable to handle. At the time
of the hearing she had not worked since October 8.
Chanson credibly testified that she was asked by Belak,
prior to the time she placed a bid, if she was going to bid on
the lab tester job, and told her that the job would be at her
regular rate. Belak concedes she knew Chanson would take
the job if she kept her rate. Bogden did not bid on the lab
job. It would have been futile for her to do so in view of
Chanson's superior seniority.
I The grievance was ultimately denied by agreement of the Union that
Bogden was not entitled to the raise. Bogden did, however, receive a raise
when she was recalled from layoffon August 17.
On or about September 21, after Bogden was recalled
from her July 30 layoff, Quality Control Manager Dale was
walking through the packaging room when Bogden called
for a skid, as was the practice. Bogden avers that Dale said,
"She wants a skid ha, she is going to get skidded right [out]
of the door," to a nearby group of other employees as he
passed by. Dale testified that he had no idea who had
called for a skid, but was just joking as he said to the other
employees, "Why don't we just get out of the door?" Later
the same day, Bogden approached Dale and asked him
why he had said that to her. He replied that he was not
aware she was the one calling for the skid and was just
joking with the other girls. I am persuaded that Bogden was
overly sensitive to remarks like that of Dale's, whichever
wording is accurate, after her recent experience of losing
the lab job, and placed a connotation on his statement that
it did not merit. I agree with Dale that it was just a joking
remark not consciously directed at Bogden.
B. Concluding Findings
I find and conclude that the Employer, by its supervisor
and agent James Dale, did not threaten Bogden in
violation of Section 8(aXl) of the Act, and I will
recommend that allegation of the complaint be dismissed.
Although I have no doubt that some employees may
have grumbled in March and/or April when Rosemary
Bogden worked the 2 days in production, there is no
credible evidence that any employee ever protested
because Bogden secured her position as lab tester without
it being posted. So far as the record shows, the only person
who may have complained on this latter score was the
Union's chief steward, Belak. De Santis attached no
particular importance to Belak's unfounded report of
employee unrest in late May, while Bogden was laid off.
This is evidenced by his comment to Belak in late May that
he would explain the situation to members when he
returned from convention, and by the further fact that he
held no meeting of members until June 30, a month later,
at which he did not even mention the subject. I do not
believe that either employee complaints or the alleged prior
agreement between the Union and the Company was the
reason for the posting of Bogden's job.
From the foregoing I draw the inference that the reasons
advanced by the Union and the Employer to justify their
actions are pretexts designed to conceal unfair labor
practices. After carefully balancing the evidence, I am
convinced that the posting of Bogden's job had its genesis
in the June 30 union meeting when she raised the question
of equalization of overtime and her wage rate. Belak's
anger, verbal abuse, and threats to get Bogden were
precipitated by Bogden's statutorily protected activity of
airing her grievances at the union meeting. This is
confirmed by Belak's own words uttered during the June
30 meeting and Belak's remark to Bogden after the July 14
or 16 meeting that she would not have done "any of this" if
Bogden had not made her statements at the union meeting.
This is a clear admission that she had done what she had
earlier threatened on June 30 when she said "I'm going to
976
TID-BIT PRODUCTS COMPANY
get you for this." This, without more, is ample to compel a
conclusion that Belak was in fact the person insisting on
the job posting which clearly would cause Bogden to be
laid off if anyone senior bid, and that her actions were
illegally motivated. Belak took care to assure that Chanson
would bid, and thus cut Bogden off and perfected her
threat to "get" Bogden.
De Santis was aware of Belak's hostility toward Bogden,
took no action to rebuke or restrain her either at the June
30 union meeting or the meeting with Ricker on July 14 or
16 when Belak verbally abused Bogden, and condoned her
words and actions by joining with her to secure the posting
of Bogden's job. Both well knew that this would cause
Bogden to be laid off. Furthermore, Belak's reminder to
Bogden that she would be automatically terminated if she
was laid off long enough clearly reveals the Union's wish to
get rid of Bogden altogether as well as the depth of Belak's
hostility toward Bogden.
Both De Santis and Belak were agents of the Union at all
times material, and any contention that the Union is not
liable for their acts because they may have been acting
outside the scope of their agency at the time is totally
without merit.12
I therefore conclude and find that the Union, by its
agents Lois Belak and Raymond De Santis, attempted to
cause and did cause the Employer to discriminate against
Rosemary Bogden by posting her job for bids, and thereby
violated Section 8(b)(1)(A) and (2) of the Act.
I further find that the Union, by its agent Lois Belak,
violated Section 8(b1( )(A) of the Act, on June 30, by
threatening Rosemary Bogden with reprisals because she
engaged in the protected activity of presenting grievances
at a union meeting, and by restraining and coercing
Rosemary Bogden, on or about July 14 or 16, in the
exercise of her Section 7 rights, by telling her that the
Union had caused her job to be posted because she had
engaged in protected activities at the Union meeting of
June 30.
Bogden credibly testified that she had brought the
problem of equalization of overtime to Ricker's attention
prior to the June 30 union meeting, and that Ricker told
her that he could do whatever he wanted to do with
Bogden and work her overtime or not, as he pleased. This
response by Ricker is consistent with his hostile reaction to
questions posed to him on the witness stand requiring him
to explain his actions. Thereafter, he displayed his hostility
toward Bogden by his intemperate and immature belittle-
ment of her protest when Belak verbally abused her at the
July 14 or 16 meeting. I am persuaded that Ricker was
quite willing to agree to post the lab tester job when De
Santis requested it, because Bogden had the temerity to
question his practices and the posting would rid him of her
even though he concedes her work was entirely satisfactory
and had earlier represented to the Union that he had no
one else in the plant capable of the job.'3
For the foregoing reasons I am convinced that Ricker
was, at least in part, motivated by a desire to rid himself of
an employee who asked him to comply with the contrac-
12 See Highway and Local Motor Freight Enmployees Local Union No. 667,
228 NLRB 398 (1977).
ia How Bogden's replacement, Chanson, who was working in the plant at
tual requirement of overtime equalization. That Bogden's
request was statutorily protected activity is so evident as to
render citations of legal authorities superfluous. When,
therefore, the Union, whom Ricker well knew to be hostile
to Bogden from Belak's comments in his presence which he
conveniently does not recall, requested him to post the job
he gladly complied. This submission to the Union's
unlawful demands is plainly violative of Section 8(a)(3) and
(I) of the Act.
IV. THE REMEDY
Inasmuch as I have found that the Respondent Union
has engaged in unfair labor practices violative of Section
8(b)(IX)(A) and (2) of the Act, and that the Respondent
Employer has engaged in unfair labor practices in violation
of Section 8(aX1) and (3) of the Act, I shall recommend
that each be required to cease and desist from its respective
unfair labor practices and take certain affirmative action
designed to effectuate the policies of the Act.
In accordance with my findings that the Respondent
Employer discriminatorily posted Rosemary Bogden's
position of lab tester, with the clearly foreseeable result
that she would be laid off, in violation of Section 8(aX3)
and (I) of the Act, and that the Respondent Union caused
this discrimination in violation of Section 8(bX2) and
(I)(A) of the Act, I shall recommend that the Respondent
Employer be ordered to reinstate Rosemary Bogden to the
position of lab tester, replacing if necessary any incumbent
in that position other than Virginia Yenyo, or a substantial-
ly equivalent position if that job no longer exists, without
prejudice to her seniority or other rights and privileges. In
addition, I shall recommend that, if the lab tester job
Rosemary Bogden occupied no longer exists, the Respon-
dent Employer be ordered to grant Rosemary Bogden first
preference for a lab tester job, if and when one is again
established. I shall further recommend that the Respondent
Union be ordered to notify the Respondent Employer in
writing, with copy to Rosemary Bogden, that it has no
objection to the full reinstatement of Rosemary Bogden to
the job of lab tester or a substantially equivalent job if the
lab tester position no longer exists. Furthermore, in view of
the fact that Rosemary Bogden would not have been laid
off on January 30, 1976, but for the discrimination against
her, I shall recommend that the Respondent Union and the
Respondent Employer be ordered, jointly and severally, to
make Rosemary Bogden whole for all wages lost by her
from January 30, 1976, until such time as she is offered
unconditional reinstatement in the manner set forth above.
The amount of backpay due Rosemary Bogden shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), together with interest
computed thereon at 6 percent in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
the time Ricker made this representation, suddenly became capable is not
explained in the record.
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent Employer is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By discriminating against Rosemary Bogden as
found above, the Respondent Employer has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By attempting to cause and causing the Respondent
Employer to discriminate against Rosemary Bogden in
violation of Section 8(a)(3) of the Act, the Respondent
Union has engaged in unfair labor practices within the
meaning of Section 8(b)(I)(A) and (2) of the Act.
5. By the statements of its agent Lois Belak on or about
June 30, 1976, and on or about July 14 or 16, 1976, the
Respondent Union restrained and coerced employees in
the exercise of their Section 7 rights and thereby violated
Section 8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record of this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 14
A. The Respondent Employer, Tid-Bit Products Com-
pany, Division of Fairmont Foods Company, Cleveland,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in the Respondent Union
by causing employees' jobs to be posted or otherwise
discriminating against employees with respect to their hire
or tenure of employment in any manner not authorized by
the union membership requirement provisions of Section
8(a)(3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative actions which I find
necessary to effectuate the purposes of the Act:
(a) Reinstate Rosemary Bogden to the position of lab
tester, or to a substantially equivalent position if that job
no longer exists, in which latter case additionally give her
first preference for the job of lab tester, if and when one is
reestablished.
(b) Jointly and severally with the Respondent Union
make Rosemary Bogden whole for all wages lost by her, in
the manner provided in the section above entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examining and copying, all payroll
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
records, social security records, timecards, and other
records relevant to a determination of any right of
reinstatement and amount of backpay due under this
Order.
(d) Post in conspicuous places at the Respondent
Company's place of business in Cleveland, Ohio, including
all places where notices to employees are customarily
posted, copies of the attached notice marked "Appendix
A."'5 Copies of said notice, on forms provided by the
Regional Director for Region 8, after being duly signed by
an authorized representative of the Respondent Company,
shall be posted by it immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in such
conspicuous places. Reasonable steps shall be taken by the
Respondent Company to ensure that the notice is not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
B. The Respondent Union, its officers, agents, and
representatives, shall:
I. Cease and desist from:
(a) Causing or attempting to cause the Respondent
Employer to post the jobs of employees or to otherwise
discriminate against employees with respect to their hire or
tenure of employment in any manner not authorized by the
union membership requirement provisions of Section
8(a)(3) of the Act.
(b) Threatening employees with reprisals because they
present grievances at union meetings.
(c) Telling employees that the Respondent Union has
taken reprisals against them because they had presented
grievances at union meetings.
(d) In any like or related manner restraining or coercing
any employee in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative actions which I find
will effectuate the purposes of the Act:
(a) Jointly and severally with the Respondent Employer
make Rosemary Bogden whole for wages lost as provided
above in the section entitled "The Remedy."
(b) Notify the Respondent Employer in writing, with
copy to Rosemary Bogden, that the Respondent Union has
no objection to the full reinstatement of Rosemary Bogden
to the job of lab tester, or a substantially equivalent
position if that job no longer exists.
(c) Post in conspicuous places, including places where
notices to members are customarily posted, and its usual
membership meeting place, copies of the attached notice
marked "Appendix B." 16 Copies of said notice on forms
provided by the Regional Director for Region 8, after
being signed by a duly authorized representative of the
Respondent Union, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter. Reasonable steps shall be taken by the
is In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
16 See fn. 15, supra.
978
TID-BIT PRODUCTS COMPANY
Respondent Union to ensure that said notice is not altered,
defaced, or covered by any other material.
(d) Forthwith mail copies of said notice marked
"Appendix B" to said Regional Director after the copies
have been signed as provided above for posting by the
Respondent Company, if it so agrees.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
979