Upstate Coca Cola, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 532 (N.L.R.B. 1987)

532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Upstate Coca Cola, Inc. and Bakery, Laundry, Bev-
erage Drivers and Vending` Machine Servicemen
and' Allied Workers of Albany and Vicinity
Local '669, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America
Bakery, Laundry, Beverage Drivers and Vending,
-Machine Servicemen and Allied Workers of
Albany and Vicinity Local 669, affiliated with
the international , Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Richard Lindheimer. Cases 3-
CA-13133 and 3-CB-4858
31 March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 21 October 1986 Administrative Law Judge
Raymond P. Green issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. The Respondent Union filed a letter
opposing the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, brief, and letter
and has decided to affirm the judge's rulings, find-
ings, i and conclusions and to adopt the recom-
mended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
Robert A. Ellison , for the General Counsel.
Joseph H. McClure Jr., Esq., of Atlanta, Georgia, for Re-
spondent.
Dominick Tocci, Esq., of Albany, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Albany, New York, on 3, 4,
and 9 June 1986. The initial charge in this proceeding
was filed by Richard Lindheimer against the Union on 3
February 1986. The charge alleged that since 1 Decem-
ber 1985 the Union has unlawfully altered his seniority
date and has improperly refused'to process a grievance
over this change. Lindheimer amended this charge on 10
March 1980 and the Regional Director issued a com-
plaint against the Union on 11 March 1986.
On 6 March 1980 the Union, no doubt being advised
that a complaint was going to be issued against -it, filed
an unfair labor practice- charge against the Employer in
Case 3-CA-13133. This charge alleges that the Employ-
er discriminated against Lindheimer by changing his se-
niority date. At the same time, the Union averred that it
nevertheless believed that the change in Lindheimer's se-
niority date was proper. In effect, the Union's intention
in filing this charge was to assert (rather cleverly I must
say), that if it is held to have violated the law because of
the alleged change in Lindheimer's seniority, then the
Employer should also be held liable because the Employ-
er and the Union agreed to the change.
As a result of the charge in Case 3-CA-13133 the Re-
gional Director issued , on 27 March 1986, an order con-
solidating cases, and an amended consolidated complaint
against both the Union and the Employer. This amended
consolidated complaint alleges:
(1) The Employer and the Union for many years have
maintained a series of collective-bargaining agreements,
the most recent of which runs from 1 November 1984 to
31 October 1987.
(2) In July 1985 the Employer and the Union made an
oral agreement whereby Lindheimer (who had previous-
ly left the bargaining unit to work as a supervisor) would
be allowed to return to a bargaining unit job with a 1961
seniority date, and/or with protection against any possi-
ble future layoffs.
(3) In reliance on the oral agreement, Lindheimer re-
turned to the bargaining unit in August 1986 as a work-
ing foreman.
(4) In December 1985 the Union by its secretary- treas-
urer, Leo Lester, reneged on the oral agreement de-
scribed in paragraph 2 by insisting that Lindheimer's se-
niority date be 26 August 1985 (i.e., when he returned to
the bargaining unit).
(5) As a result, the Company on 11 December 1985
changed Lindheimer's seniority date to 26 August 1985.
(6) In January 1986 the Union caused the layoff of
Lindheimer by insisting that his seniority date was
August 1985 and by insisting that he should therefore be
laid off before employees hired before August 1985.
(7) In February 1986 the Company acceded to the
Union's demands and laid off Lindheimer.
(8) In December 1985 and February 1986 the Union
refused to process Lindheimer's grievances relating to
the change in his seniority date and his layoff in Febru-
ary 1986.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is agreed and I find that the Employer is engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
283 NLRB No. 77
UPSTATE COCA COLA
It also is agreed and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.'
H. OPERATIVE FACTS
Lindheimer initially began working at the Company
about 1958 or 1959 . He then left for a short time to work
with his brother and returned in 1960. Thereafter, he
continued to work continuously in jobs covered by the
collective-bargaining agreement until July 1984 when he
was asked to become the head of the maintenance de-
partment, a supervisory position . At the time, Lind,
heimer spoke to Bob Herman , another supervisor, who
told him that if he did not like the new job, he could
always return to the bargaining unit within 2 years.
Nothing was said, however , about retaining or losing se-
niority on such a return . After his discussion with
Herman, Lindheimer decided to accept the promotion
and he began working as a supervisor . Simultaneously,
he obtained a withdrawal card from the Union.
For one reason or another , Lindheimer found that he
did not like his, new job and about June 1985 he asked
the Company's director of operations, Walter Munroe, if
he could return to the bargaining unit . Munroe , who had
himself just recently arrived at the, Albany facility, re-
plied that he would check with ' his superiors and get
back to Lindheimer . When Munroe did check, his superi-
ors told him to do ' what he thought best . The next week
Munroe told Lindheimer that he could go,back to a unit
job, whereupon Lindheimer expressed some concern that
if he went back into the bargaining unit , his seniority,
might begin again at zero . Munroe states that he then
contacted Morse who worked in the personnel depart-
ment (in Syracuse) because he did not know what Lind-
heimer's seniority should be if he returned to the bar-
gaining unit .? Morse told ,him that `she would get back to
him, but apparently did not . Because Munroe was not
certain about the interpretation of the contract in con-
nection with , Lindheimer 's seniority question and because
he was desirous of protecting Lindheimer from any pos-
sible seasonal layoff, Munroe arranged for a meeting
with the Union in July 1985,
Before discussing the meeting of July , I note the fol-
lowing relevant provisions of the collective-bargaining
agreement:
(1) Article XI-Seniority
The principle of seniority shall prevail at all times
except as otherwise specified herein . After working
30 days a new employee shall be placed on the ap-
propriate seniority list as of his first day of employ-
ment. When it becomes , necessary to reduce the
working force , the -last man hired shall be laid off
first, and when- the force is again increased, the men
are to be returned to work i nn the reverse order in
' The contract in this case was jointly negotiated by several Teamsters
Union locals with respect to several plants located in different cities The
particular contract with Local 669 covers Coca-Cola employees in
Albany and in Glen Falls, New York.
2 According to Munroe, when he arrived at the Albany plant he re-
ceived his training relative to the collective -bargaining agreement by
being given the union contract and told to read it.
533
which they . are laid off. Seniority shall be broken
only by discharge , voluntary quit, or more than a
two year layoff.
(2) At Article VII, the last paragraph states:
The Company has discretion to select employees
for the position of working foreman . A, working
foreman will be paid $ .40 more per hour than the
rate of his classification.
(3) Article XX Leave of Absence states:
If the Company grants a leave of absence not to
exceed six months, to ' any employee, the Company,
on request of the employee , will furnish such em-
ployee in writing confirmation of such leave of ab-
sence . The employee assumes the responsibility of
requesting such confirmation of leave in writing and
filing same with the Union. The Union shall not be
required to recognize such leave of absence unless
the employee shall file such written confirmation
thereof, with the Union within one week from the
date the same is granted.
Any employee absent without leave for any
reason other than for sickness , or other legitimate
or excusable reason, or any employee absent beyond
the period of approved leave of absence, shall be
considered as having left the employ of the Em-
ployer.
The Company and the Union must jointly agree
upon all leaves of absence prior to being granted.
Prior to leaving, the employee _ must deposit with
the Company monies to covet his pension contribu-
tions for the period of the leave of absences
In early July 1985 a meeting was held to discuss the
return of Lindheimer to the - bargaining unit. In addition
to Lindheimer's presence, the Company was represented
by Walter Munroe and Bob Herman and the Union was
represented by Leo Lester and Irv Wood , its president-4
It was at this meeting, according to the General Counsel,
that the Union and the Company made an agreement
whereby, (1) Lindheimer would go back into the bar-
gaining unit as a working foreman, (2) he would have a
seniority date of'1961 (i.e., his date of hire minus the 13
months that he was a supervisor), and (3) he would be
protected from layoff in the event of possible future lay-
offs. In reviewing this record , and considering all the
evidence in conjunction with the demeanor of the wit-
nesses , I am convinced, contrary to the General Counsel,
that no such agreement was made . Rather, what I think
transpired is set forth below.
There is no doubt that the Company and the Union
recognized that Lindheimer was an extremely valuable
employee who , because of his ability to fix and maintain
a wide variety of machinery, had almost a unique value
to the Company. As such, the Company was anxious not
only to accommodate the wishes of a long-term and
loyal employee, but also was desirous of protecting him
2 There is also at art. XXI a grievance-arbitration clause.
4 Leo Lester is the person in the Union with the highest authority
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from the possibility of being laid off if future layoffs oc-
curred. I also believe that the Union acknowledged
Lindheimer's skills and was likewise desirous of accom-
modating him to the extent possible within the limits of
the collective-bargaining agreement.
I conclude that at the July meeting the Company by
Munroe expressed the desire to protect Lindheimer from
layoffs because Munroe feared that the seniority clause
might very well be interpreted as requiring Lindheimer
to start at zero seniority on his return to the bargaining
unit. I also conclude that Lester, although indicating his
view that Lindheimer would lose his prior seniority, ex-
pressed the opinion that Lindheimer might be afforded
some protection if the Company made him a working
foreman. In this regard, I think that Lester had in mind
the idea that if Lindheimer was designated as a working
foreman, other employees who were hired before his
return to the unit might not attempt to bump him in the
event that regular employees were laid off.5 The evi-
dence shows that Lester said at this meeting that the
Company could make Lindheimer a working foreman so
as to afford him some protection, but that if other em-
ployees were laid off and if they filed grievances alleging
that they had greater seniority than Lindheimer, Lester
would have to take such grievances to the Union's exec-
utive board for consideration. In effect, therefore, I con-
clude that Lester merely suggested that a possible way
to protect Lindheimer from layoff was for the Company
to make him a working foreman. I do not believe that he
agreed Lindheimer could have a 1960 or 1961 seniority
date or that the Union would consent to guarantee Lind-
heimer absolute protection from layoff. Rather, I think
that Lester essentially hoped that a layoff-seniority prob-
lem would simply not arise either because (a) no regular
employees would be laid off in 1985-1986, or (b) if regu-
lar employees were laid off, they would not think to file
grievances because of Lindheimer's working foreman's
position and/or his unique skills. It is clear to me that
Lester expressly reserved the right to process -grievances
in the event that future layoffs occurred and if other em-
ployees did assert they had greater contractual seniority
than Lindheimer.
After Lindheimer returned to the bargaining unit in
early August, the Company and the Union had a meeting
in August to discuss the updating of the seniority list.
When the Company proposed that Lindheimer should be
assigned a seniority date of 1961, Lester objected and
stated that Lindheimer's seniority date should be the date
that he returned to the bargaining unit in August 1985.
Lindheimer's wife also works at the Albany plant. She
is, as far as I can see, an intelligent and determined
woman who is not afraid to assert her "rights." In 1984
she was fired when she became involved in a personality
conflict with the- plant manager . At that time, Lester
processed a grievance- on her behalf and succeeded in
convincing the Company, without going to arbitration,
that Lindheimer should be reinstated with backpay.
6 During the summer the Company hires college students who are laid
off before regular employees are laid off In some years no regular em-
ployees are laid off at all, while in other years some are. In July 1985
there was no way for anyone to predict to what extent, if any, there
would be layoffs of regular employees in the autumn or winter.
During the summer of 1985, Lindheimer's son had a
summer job with the Company. After -he was laid off in
September, the Company needed a replacement and
called the Union to send a man, which it did. When Mrs.
Lindheimer discovered this, she called Lester and ac-
cused him of sending up a crony instead of having her
son recalled for a week so that he would be eligible for
unemployment benefits. Lester hung up on her, and after
she called back and spoke to Wood, Lester went up to
the Company, spoke to Robert Herman, and arranged
for Mrs. Lindheimer's son to be recalled for a week.
On 18 November 1985 the Union held a nomination
meeting for the purpose of selecting candidates for
office. The incumbent officers, Leo Lester and Irv Wood
were nominated for another term. Also nominated was
Tony Jesmaine for secretary-treasurer. Right after the
nominations, Lester and Wood held a party at a nearby
restaurant' where the local's members were invited. Ac-
cording to Mrs. Lindheimer, while at the party she told
Lester that although she was supporting Irv Wood for
reelection, she had not made up her mind between
Lester and Jesmaine. She contends that Lester thereupon
angrily told ' her to leave his party. This is denied by
Lester.
Regarding the relationship between Mrs. Lindheimer
and Lester, Munroe recalled one occasion, sometime in
July 1985, when Lester referred to Mrs. Lindheimer as
"that bitch." Munroe, who overheard this remark, could
not relate the context that this remark was made. Also,
Ken Richardson - (the Company's production manager),
recalled that on one occasion he overheard Lester
remark that if it was not for his wife, Lindheimer would
not have these problems.
At a meeting on 9 December 1985, the Company and
the Union discussed'a new proposed seniority list. When
Lindheimer's name came up, Richardson agreed with the
Union's position that having left the bargaining unit in
1984, Lindheimer had lost his seniority status under the
terms of the contract. Further, he agreed that as neither
shop stewards nor working foremen had contractual su-
perseniority, Lindheimer's seniority began when he re-
turned to the unit in August 1985. Thereafter on 11 De-
cember, a seniority list was posted and on 12 December
Lindheimer presented a grievance to Leo Lester at the
Union's office. This grievance read:
Loss of 25 years seniority. I grieve that employer
lists starting date as of 8/26/85 when starting time
was in fact 6/29/60.
Present at the meeting on 12 December were Leo
Lester, the Lindheimers, and their friend Pat Franklin
who also was a shop steward. The Lindheimers argued
that there had been an agreement back in August be-
tween the Company and the Union whereby Lindheimer
retained most of his seniority. Pat Franklin took up Lind-
heimer's case and said that if there had been an agree-
ment, then the Union should live up to it. Lester denied,
however, that he had ever made such an agreement and
said that the contract was controlling. He said that he
neither could nor would alter the contract for Lind-
heimer's benefit or for the benefit of any other person.
UPSTATE COCA COLA
These positions by the respective parties were repeated
over and over again with greater and greater heat.
On 12 December, Mrs. Lindheimer wrote a letter to
Jesmaine expressing her support for-his candidacy. For
the most part she set forth the situation regarding Lind-
heime3's seniority status from the Lindheimer point of
view. She also expressed the opinion that Lester was not
to - be trusted because he had reneged on the alleged
agreement to allow Lindheimer to return to the bargain-
ing unit while retaining most of his previous seniority.
She gave permission for the letter to circulate as part of
Jesmaine's election campaign. Despite its publication it
did not harm Lester who won on 18 December.
In late December 1985 or early January 1986, a
number of bargaining unit employees were temporarily
laid oil. Thereafter, in January some grievances were
filed alleging that employees with greater seniority than
Lindheimer had been laid off while he remained at work.
These grievances were responded to by Herman, after
consulting Munroe (Munroe was ill). The responses to
the grievances of Conradt and Robbins were (1) the
Union and the Company had agreed to give Lindheimer
a seniority date of August 1961, and (2) they also-agreed
that Lindheimer would be classified as a working -fore-
man. It should be noted that these letters of Herman
were written despite the fact that he was aware that the
Company's position as expressed by his superior, Rich-
ardson, in December 1985 was that Lindheimee s seniori-
ty date was August 1985 and that Lindheimer did not
have any type of superseniority. As stated by Herman,
he and Munroe drafted these replies because they dis-
agreed with the Company's position. I also note that the
response to Robbin's grievance was never sent to the
Union because it was intercepted by Richardson who
countermanded it.
A meeting was held between the Union and the Com-
pany on 28 January 1986. The'spokesman for the Com-
pany was Richardson and the spokesman for the Union
was Lester. The purpose of the meeting was to discuss
the various pending seniority grievances. At this meeting
Lindheimer was told by Richardson that the Company
agreed with the Union's position, Lindheimer was also
told that he was going to be laid off commencing on the
first week of February.
On 30 January 1986 and 3 February 1986 Lindheimer
filed three related grievances concerning his seniority
status and his "layoff." These grievances were denied by
the Company both orally and in writing.
I should note that in actuality Lindheimer was never
really laid off 'because he used some of his accumulated
vacation time for the period that he was scheduled for
layoff. Also the Company, without objection from the
Union, gave work to Lindheimer during, his "layoff"
period as a subcontractor because his skills were needed.
Lindheimer returned to work on I March 1986 and has
worked continuously since that date.
III. DISCUSSION
The General Counsel's theory in this case is based on
a number of factual premises which, in my opinion,
cannot be sustained. As I understand his theory, it is
based on the hypothesis that (1) an agreement was made
535
in July and/or August 1985 whereby the Company and
the Union agreed to allow Lindheimer to return to a bar-
gaining unit job with, the retention -of,almost all the se-
niority that he had earned prior to his promotion to man-
agement and/or with a guarantee of job protection, as a
working foreman; (2) the Union reneged on this alleged
agreement thereby ultimately causing Lindheimer's
layoff in February 1986; and (3) the Union's reneging on
the agreement was motivated by Lester's retaliation
against Mrs. Lindheimer's support of his rival for union
office:
As to motivation, the evidence may show a degree of
hostility between Mrs. Lindheimer and Lester, two
strong-willed individuals. But the facts show that what-
ever differences they may have had, Lester has assisted
either her (when she was fired in 1984), or her son, when
he was laid off in September 1985. The evidence simply
cannot support the claim that Lester "reneged" on an al-
leged agreement in July 1985 concerning Lindheimer's
seniority status because of his wife's intraunion activities,
because it is clear that such a "reneging," if it occurred
at all, occurred before his wife expressed her support for
the rival candidate, Jesmaine.
Further, it is my opinion that Lester never entered
into an agreement whereby Lindheimer would, on his
return to the bargaining unit, retain his old seniority
status minus the 13 months that he spent in management.
Nor do I find that Lester agreed to any kind of arrange-
ment guaranteeing Lindheimer job protection in the
event that layoffs occurred in the future. Rather, I con-
clude that the credible evidence establishes that Lester,
at the July 1985 meeting, merely suggested that if the
Company, as was its contractual right, designated Lind-
heimer as a working foreman, this might give him some
degree of protection because of his special skills. Thus, at
most, it is my opinion that Lester made this suggestion
because he hoped that layoffs of regular, employees
would not occur and that if they did, other employees
might be dissuaded from filing grievances because of
Lindheimer's "special skills." In this regard, it, seems to
me that Lester basically was hoping that the problem
would simply not come up. Moreover, despite making
the working foreman suggestion , Lester protected his
flanks by explicitly reserving the right to take to his ex-
ecutive board any grievances which might arise in the
event layoffs did occur and if employees did claim great-
er seniority than Lindheimer.
The evidence further establishes to my satisfaction that
at the August 1985 meeting Lester specifically took the
position that Lindheimer's seniority status began on the
date that he returned to the bargaining unit. This posi-
tion was ultimately agreed to by the Company's repre-
sentative, Richardson, on 9 December 1985 when the
Union and the Company were in the process of drawing
up a new seniority list.
Having found that there never was any agreement as
alleged by the General Counsel and having found, an ab-
sence of unlawful motivation in connection with the
Union's alleged "reneging," I must conclude that the al-
legations of the complaint have no merit. In my opinion
the existing labor agreement is ambiguous concerning
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
what should happen to a person's seniority when he or
she is promoted to management and thereafter returns to
the bargaining unit. As such, it seems to me that the
Union's interpretation of the contract (to the effect that
such a person starts, over again with zero seniority) is not
unreasonable. It is, at the very least, a contractual inter-
pretation which it could legitimately argue before an ar-
bitrator.
As the question of Lindheimer's seniority status is to
my mind one which solely concerns the interpretation of
the existing contract, it properly was decided during the
grievance meetings established by the contract's griev-
ance procedure. As I am convinced that neither the
Union nor the Company engaged in any acts motivated
by the Lindheimers' protected concerted activity and as
I am equally convinced that the Union's actions were not
arbitrarily, capriciously or invidiously motivated, it is
concluded that the allegations of the amended consoli-
dated complaint should be dismissed.
CONCLUSIONS OF LAW
1. Upstate Coca Cola, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Bakery, Laundry, Beverage Drivers and Vending
Machine Servicemen and Allied Workers of Albany and
Vicinity, Local No. 669, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. Neither the Union nor the Company has violated
the Act in any manner as alleged in the amended consoli-
dated complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
It is recommended that the complaint be dismissed in
its entirety.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended-
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.