Dolly Madison Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1966

162 N.L.R.B. 48 (N.L.R.B. 1966)

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for Region 12, after being duly signed by an authorized
representative of said Company, shall be posted immediately upon receipt thereof,
and be maintained for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to insure that such notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Company has taken to com-
ply herewith.24 _
IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges
violations of the Act not heretofore remedied in this Recommended Order.
24 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director for Region 12, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request bargain collectively with Citrus, Cannery, Food
Processing and Allied Workers, Drivers, Warehousemen and Helpers Local
Union No. 173, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive bargaining representative
of our nonsupervisory production and maintenance employees at Bradenton
and Sarasota, Florida.
WE WILL NOT, by a refusal to bargain with said Union or in any like or
related manner, restrain, or coerce our employees in the exercise of their
rights to organize; to form, join, or assist a labor organization; to bargain
collectively through a bargaining agent chosen by themselves; to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection; or to refrain from any such activities.
BRADENTON COCA-COLA BOTTLING COMPANY, ALSO DOING BUSI-
NESS AS SARASOTA COCA-COLA BOTTLING COMPANY OF SARA-
SOTA, FLORIDA,
Employer.
Dated------------------- By -------------------------------------------
(Representative), (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone
228-7711.
Woodlawn' Farm Dairy Co., division of Dolly Madison Foods, Inc.
and Leonard A. McClain
Local 869, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Leonard A.
McClain . Cases 4-CA-3704 and 4-CB-1166. December 13, 1966
DECISION AND ORDER
On June 13, 1966, Trial Examiner Henry S. Sahm issued his Deci-
sion in the above-entitled consolidated proceeding, recommending
that the complaint be dismissed in its entirety, as set forth in the
162 NLRB No. 1.
WOODLAWN FARM DAIRY CO. 49
attached Trial Examiner 's Decision . Thereafter , the General Counsel
and Leonard A. McClain , the Charging Party, filed exceptions to the
Trial Examiner 's Decision , and the General Counsel filed a brief in
support of exceptions . The Respondent Employer filed a brief in
support of the Trial Examiner 's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
menlber panel [Chairman McCulloch and Members Brown and
Zagoria].
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 entire
record in this proceeding , including the Trial Examiner 's Decision,
the exceptions , and the briefs , and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner only insofar
as they are consistent with the Decision herein.
1. The complaint alleges that the Respondent Employer violated
Section 8 ( a) (1) and ( 3) of the Act and that Respondent Local 869
violated Section 8(b) (1) (A ) and (2 ) by maintaining and enforcing
article 11 of their collective -bargaining agreement , entitled "Senior-
ity in Consolidations ," which provides as follows :
When two or more branches or plants of the Employer are con-
solidated , the seniority list of both branches or plants so con-
solidated shall be combined by departments and made operative
as if they were one, and the seniority of both groups shall be
dovetailed . When the Employer acquires a branch or plant, or
any part thereof and consolidates it with his own, the seniority
of the employees so acquired who are members of Local 869 shall
be dovetailed with the seniority of other members of that Local
and the seniority of all other members shall follow that of the
members of Local 869 who were employees prior to the date of
acquisition. When the business so consolidated has non-union
employees , but they apply for membership in the Union, their
applications shall be accepted by the Union.
The Trial Examiner, dismissing the complaint on grounds discussed
below, did not decide the legality of this provision.,
The second sentence of this article , applicable when the Employer
acquires new branches or plants and consolidates them with his own,
in essence divides the employees of such new branches or plants into
two groups , depending on whether or not they are members . of Local
869; and provides that the seniority of those who are Local 869
i To the extent that the Trial Examiner's Decision can be construed as recommending
that this issue be deferred to arbitration, such recommendation is hereby rejected.
264-047-67-vol. 162-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members shall be dovetailed with that of previously employed Local
869 members, but that the seniority of those who are not Local 869
members shall be subordinated to that of the Local 869 members and
shall not be dovetailed. This sentence, on its face, affords preferen-
tial treatment to employees of new branches or plants who are Local
869 members and discriminates against those who are not, in the
matter of seniority. We conclude, therefore, that by maintaining this
provision in their collective-bargaining contract, Respondent
Employer violated Section 8(a)(1) and (3) and Respondent Local
869 violated Section 8(b) (1) (A) and (2) of the Act.2
The first sentence of article 11 applies when branches or plants
belonging to the Employer are consolidated, and provides that the
seniority of the employees of such branches and plants shall be dove-
tailed. The last sentence provides that when employees of a consoli-
dated- operation apply for membership in Local 869, their applica-
tions shall be accepted. These provisions on their face do not accord
preference, as to seniority or any other condition of employment, to
members of Local 869, or discriminate against nonmembers of Local
869 in any mariner prohibited by the Act. Moreover, contrary to the
General Counsel's contention, these provisions are clearly severable
from the unlawful provision dealing with the seniority of'employees
of newly acquired branches or plants.3 Accordingly, we find that the
first and last sentences of article 11 are not violative of the Act.
2. The complaint also alleges that the Employer and Local 869
violated, Section 8(a) (3) and (1) and (b) (2) and (1) (A) of the
Act, respectively, by abrogating the seniority of, and laying off,
employees Stephan Sabatini, Leonard McClain, and William Parker,
because of their lack. of membership in Local 869.
Prior to June 19, 1965, the Respondent Employer was engaged in,
inter alia, the manufacture of ice cream in Wilkes-Barre, Pennsyl-
vania, and in the distribution of such ice cream from its Wilkes-
Barre and Scranton, Pennsylvania, locations. Its Scranton ice cream
distribution employees were represented by Local 229, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and its Wilkes-Barre ice cream employees by Respond-
ent Local 869. The Scranton distribution operation consisted of three
retail delivery routes serviced by three driver-salesmen, Sabatini,
McClain, and Parker. On June 19, the Employer ceased operating
these routes from Scranton, and posted the routes in Wilkes-Barre
2 International Association of Machinists , Aeronautical Industrial Lodge 727, et at.
( Menasco Manufacturing Company ), 123 NLRB 627 , enfd. as modified 279 F.2d 761 (C.A.
9), cert. denied 364 U.S. 890 ; Whiting Milk Corporation, 145 NLRB 1035 . Although the
United States Court of Appeals for the First Circuit refused to enforce the Board's
Decision in Whiting Milk Corporation, 342 F.2d 8, we respectfully adhere to the position
stated in the Decision in that case.
3 Nordberg -Selah Fruit, Inc., Nordberg -Westbrook Fruit , Inc., 126 NLRB 714, 718.
. WOODLAWN FARM DAIRY CO. 51
as newly created permanent jobs to be filled on the basis of seniority
as required by article IX of the Local 869 contract 4 The three
Scranton drivers were told by Respondent Employer to report. for
work in Wilkes-Bai•re on June 21, to sign a "bid sheet" for the
routes they formerly serviced from Scranton, which would there-
after be operated out of Wilkes-Barre, and to transfer their union
membership from Local 229 to Local 869. It was the Employer's posi-
tion that the Scranton drivers were entitled to retain the seniority
they had acquired at Scranton, where Sabatini had worked 38 years,
McClain 31 years, and Parker 9 years. Although Local 869 origi-
nally agreed.to dovetail the transferees' Scranton seniority with the
Wilkes-Barre seniority roster,.Local 869 reversed its position and,
because they were not members, threatened a work stoppage if their
seniority were dovetailed. To avoid the threatened, work stoppage,
the Employer acquiesced in Local 869's demand; 5 the drivers, all
three. of whom had signed the Wilkes-Barre bid sheet, were not,
credited with their Scranton seniority; their routes were awarded to
Wilkes-Barre employees who were members of Local 869; and the
transferees were laid off.°
On June 8, the transferees filed a grievance with Local 229, and on
July 12, the unfair labor practice charges herein were filed. Local 229
did not forward the grievance to the Respondent Employer,? but
rather, to Teamsters Joint Council No. 53. According to uncontro-
verted testimony, Local 869 President Smith stated at a Joint Coun-
cil meeting, on September 13, that because Local 229 had refused to
dovetail the seniority of transferred Local 869 members in 1960,
Local 229 members would be accorded the same treatment now that
the situation was reversed." Thereafter, the Joint Council decided
4 Article IX, entitled " Seniority and Bidding for Vacancies ," provides , in pertinent part,
as follows:
In the case of any vacancy in a job , or newly created permanent jobs, falling within
any classifications covered by this Agreement , Employer agrees to post notice of the
existence of the same at least five ( 5) working days prior to filling such vacancy, and
to accept applications from employees within such period . Preference in filling vacancies
shall go to employees on the basis of length of service, provided they have sufficient
ability and physical fitness to perform the work , such ability and physical fitness
to be determined jointly by the Union's Business Representative and the
Employer . . . .
5 Schuster , the Employer 's personnel manager, testified at the hearing , "At this point
I certainly wasn ' t going to take the risk of a work stoppage or a strike . It wasn't a
question that was important to me, and I let the contract rule as it may , 869's contract."
e Although the employees did not transfer their union membership to Local 869 , there is
no contention that their layoffs resulted from their failure to join Local 869 as required
by the 30-day union-security provision in Local 869 ' s contract . In any event , the record
indicates that the discrimination alleged in the complaint occurred within this 30-day
period.
' On August 30, Local 229 telegraphed the Employer to dovetail seniority within 72 hours
or face "serious economic action ," and the latter replied by reminding Local 229 of the
arbitration and no-strike provisions in their contract.
B Smith was referring to a transfer of Wilkes-Barre employees who were members of
Local 869 to Scranton in 1960 when , ender a similar contract provision, an arbitrator's
award favored Local 229 members.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it lacked jurisdiction over the dispute and that it was further
precluded from acting because of the pending unfair labor practice
charges. On October 4, after an appeal to the Teamsters Interna-
tional president, the grievants were informed that no action could be
taken until this unfair labor practice case was resolved.
Local 869 contends that article 11 does not apply to the three
Scranton drivers because the Employer's combining of its Scranton
and Wilkes-Barre operations was not a consolidation of two branches
or two plants. The Employer also contends that there was no con-
solidation. We find no merit in these contentions. The record shows
that prior to June 19, the Employer's designation for its Scranton
and Wilkes-Barre ice cream operations was "Branch 71" and
"Branch 73," respectively, and that on that date the Scranton opera-
tion was closed and transferred, with routes intact, to Wilkes-Barre.
We find that this transfer of operations was tantamount to a consoli-
dation of two branches within the clear meaning of the first sentence
of article 11. We find, further, that Respondent Local 869's conten-
tion that article 11 was inapplicable to the transfer of the Scranton
drivers was merely a pretext designed to conceal its determination
to cause the Respondent Employer to deprive the three Scranton
drivers of their seniority because they were not members of Local 869.
Respondent Union's discriminatory motive is clearly evidenced by
Local 869 President Smith's comment at the Joint Council meeting
on September 13, referred to above, and by testimony at the hearing
herein of its business agent, Tricarico, that the seniority of the
Scranton transferees would have been dovetailed if they had been
members of Local 869. Moreover, Local 869 in its original answer to
the complaint herein admitted that there had been a consolidation,
then, in its amended answer, contended there had not been a consoli-
dation, and thereafter, in its brief to the Trial Examiner, contended
that the Scranton operation was neither a branch nor a plant. Such
shifting defenses support the inference that these contentions were
pretexts. Finally, the Respondents were not above unlawfully dis-
criminating against nonmembers of Local 869 is further evidenced
by the discriminatory nature of the second sentence of article 11
heretofore found unlawful.
Based on the foregoing, we conclude that by not crediting Saba-
tini, McClain, and Parker, after their transfer from Scranton to
Wilkes-Barre, with their accrued Scranton seniority, because of their
lack of membership in Local 869, the Respondent Employer discrimi-
nated against them in violation of Section 8(a) (3) and (1) of the
WOODLAWN FARM DAIRY CO. 53
Act, and that by causing this discrimination Respondent Local 869
violated Section 8(b) (2) and (1) (A).9
3. The Trial Examiner recommended that the Board not assert
jurisdiction in this proceeding, and that the complaint be dismissed,
on the ground that the processes of Teamsters Joint Council No. 53
and the grievance-arbitration procedures of the Local 869 con-
tract 10 "provide a more efficacious solution to this dispute," than an
unfair labor practice proceeding. We do not agree.
Under the circumstances of this case, there is no policy reason for
the Board to decline voluntarily to resolve the issues involved
herein.- For, as noted above, Teamsters Joint Council No. 53 has
refused to consider the dispute, and there is no indication that it has
the authority or the disposition to determine or remedy all the unfair
labor practice issues raised by the complaint in a manner which would
effectuate the policies of the Act. As to the grievance-arbitration
procedures of the collective-bargaining agreement between Local
869 and the Respondent Employer, the discriminatees have not
resorted to them, nor would their interests be protected in any such
proceedings, as the Employer and Local 869 would both be arrayed
against the interests of the grievants; 12 and, in any event, in view of
the terms of article XIX, the procedures thereof may no longer be
available to these employees. Accordingly, on the basis of the fore-
going and as no other compelling reasons appear, we shall not defer
0 Accord: The Radio Officers' Union of the Commercial Telegraphers Union , AFL (A. H.
Bull Steamship Company ) v. N.L.R .B., 347 U.S. 17 ; Master Stevedores Association of
Texas , Houston Maritime Association , Inc., 156 NLRB 1032 ; Skouras Theaters Corpora-
tion, 155 NLRB 157 , enfd. 361 F . 2d 826 ( C.A. 3) ; Daugherty Company, Inc., 147 NLRB
1295. Cf. Wanwer Dairy Co., 154 NLRB 782.
10 Article XIX, entitled "Arbitration and Grievance Procedure" provides as follows :
In the event of a complaint or grievance arising under this Agreement , the Steward
shall take the matter up with the Employer and together they shall make every reason-
able effort to reach a satisfactory solution , provided , however, that this shall not bar
the affected employees ' right first to endeavor to adjust the matter with his Employer.
If no satisfactory solution can be reached , the Business Agent of the Union shall
be notified by the Steward within seven ( 7) days of the occurrence of the event com-
plained of, and the Business Agent shall take the matter up with the Employer within
ten (10 ) days after occurrence of the event complained of. If the Business Agent of
the Union and the Employer cannot reach a satisfactory agreement, the matter shall
be referred to arbitration , as provided herein.
Any complaint or grievance arising under this Agreement , which cannot be adjusted
by the representative of the parties , shall be submitted to a disinterested arbitrator,
acceptable to both parties , promptly after the Union and the Employer fail to agree,
but it is clearly understood that the arbitrator shall not have the power to alter any
of the terms of this Agreement.
The arbitrator shall , upon notice to both parties, hear the issues involved. His
decision sha l l be submitted in writing within ten ( 10) days after the case has been
placed in his hands and shall be final and binding upon the parties. The arbitrator, in
his decision , shall assess the cost of the arbitration against one or both of the parties
in this Agreement.
11 See C it S Industries, Inc., 158 NLRB 454 ; Century Papers, Inc., 155 NLRB 358 ;
Huttig Sash and Door Company, Incorporated, 154 NLRB 8.11.
12 Combustion Engineering Company, Inc., 86 NLRB 1264,
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the resolution of the issues herein to another tribunal as recom-
mended by the Trial Examiner.
THE REMEDY
Having found that the second sentence of article 11 of the
Respondents' collective-bargaining agreement is unlawful on its face,
we will order Respondents to cease and desist from giving effect to,
and to delete, this portion of article 11.
With respect to Respondents' discriminatory refusal to dovetail the
seniority of Sabatini, McClain, and Parker, the record is unclear as
to whether, absent such discrimination these employees would have
had sufficient seniority to be successful. in their bids for the trans-
ferred Scranton routes. We shall therefore order that the Respondent
Employer notify them that they will be credited with their Scranton
seniority for all purposes to which they are entitled; reconsider the
assignment of the transferred Scranton routes, taking into considera-
tion the dovetailed seniority of these three employees; and offer them
such assignments as they may have been entitled to, with backpay
for any losses suffered because of the discrimination against them.
Respondents shall be jointly and severally liable for any such back-
pay, with 6 percent interest thereon per annum. F. W. Woolworth
Con spcmzy, 90 NLRB 289; and Isis Flumnbing ct Heating Co., 138
NLRB 716. In addition, we shall order Respondent Local 869 to
notify the Employer and the discriminatees that it has no objection
to dovetailing the seniority of these employees, and it shall not be
liable for any backpay accruing after 5 days from the giving of
such notice.
CONCLUSIONS OF LAW
1. The Respondent, Woodlawn Farm Dairy Co., Division of Dolly
Madison Foods, Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent Local 869, 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. By maintaining the second sentence of article 11 of their collective-
bargaining contract which discriminates against employees of
newly acquired branches or plants who are not members of Local
869, and by discriminatorily refusing to dovetail the seniority of
employees Stephan Sabatini, Leonard McClain, and William Parker,
Respondent Employer has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) and (3) of the Act,
and Respondent Local 869 has engaged in and is engaging in unfair
WOODLAWN FARM DAIRY CO. 55
labor practices within the meaning of Section 8(b) (1) (A) and (2)
of the Act.
4. The foregoing unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that :
A. Woodlawn Farm Dairy Co., Division of Dolly Madison Foods,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a)Encouraging membership in Local 869, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, by maintaining the second sentence of article 11 of its con-
tract with that Union, set forth below; by refusing to credit employ-
ees with seniority because they are not members of that Union; or
by otherwise discriminating against employees because of non-
membership in that labor organization.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the above-
named or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted
activities for the purpose of 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 a condition of employment,
its authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds is
necessary to effectuate the policies of the Act :
(a) Delete from its collective-bargaining contract with the above-
named Union, the second sentence of article 11, which reads
as follows:
When the Employer acquires a branch or plant, or any part
thereof and consolidates it with his own, the seniority of the em-
ployees so acquired who are members of Local 869 shall be dove-
tailed with the seniority of other members of that Local and the
seniority of all other members shall follow that of the members of
Local 869 who were employees prior to the date of acquisition.
(b) Notify Stephan Sabatini, Leonard McClain, and William
Parker, in writing, that they will be credited with their accrued
Scranton seniority for all purposes to which they are entitled.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Reconsider the assignment of Scranton ice cream delivery
routes transferred to Wilkes-Barre on June 19, 1965, taking into con-
sideration the transferred seniority of Sabatini, McClain, and
Parker, and jointly and severally with the above-named Union, and
in the manner set forth in that portion of the Board's Decision
entitled "The Remedy," make them whole with backpay and interest
for any loss of pay they suffered because of the discrimination
against them.
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of any backpay
due under the terms hereof.
(e) Post at its ice cream branch in Wilkes-Barre, Pennsylvania,
copies of the attached notice narked "Appendix C.7 13 Copies of such
notice, to be furnished by the Regional Director for Region 4, after
being duly signed by an authorized representative of the Employer,
shall be posted immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (5) above, as soon as forwarded by the Regional Director,
copies of the attached notice marked "Appendix D."
(g) Mail to the Regional Director for Region 4, signed copies of
"Appendix C" for posting by Local 869 at its business office where
notices to members are customarily posted. Copies of said notice, to
be furnished by the Regional Director, shall, after being duly signed
by an authorized representative of the Employer, be returned forth-
with to the Regional Director for such posting.
(h) Notify Stephan Sabatini, Leonard McClain, and William
Parker if presently serving in the Armed Forces of the United
States of any right to reinstatement upon application, in accordance
with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(i) Notify the Regional Director for Region 4, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
16 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of
the United States Court of Appeals Enforcing an Order."
WOODLAW]NT FARM DAIRY CO. 57
B. Local 869, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, agents, and rep-
resentatives, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Woodlawn Farm Dairy Co.,
Division of Dolly Madison Foods, Inc., to discriminate against its
employees, because of nonmembership in the Respondent Union, with
regard to their seniority, or any other condition of employment,
except as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
(b) In any like or related matter restraining or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
is necessary to effectuate the policies of the Act :
(a) Delete from its collective-bargaining contract with the
Respondent Employer, the second sentence of article 11.
(b) Notify Stephan Sabatini, Leonard McClain, and William
Parker, and the Respondent Employer, in writing, that it has no
objection to crediting the above-named individuals with their accrued
Scranton seniority for all purposes to which they are entitled.
(c) Jointly and severally with the Respondent Employer, and in
the manner set forth in that portion of the Board's Decision entitled
"The Remedy," make whole Sabatini, McClain, and Parker with
backpay and interest for any loss of pay suffered because of the dis-
crimination against them.
(d) Post at its business office copies of the attached notice marked
"Appendix D:" Copies of such notice, to be furnished by the Regional
Director for Region 4, after being duly signed by an authorized rep-
resentative of Local 869, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to its mem-
bers are customarily posted. Reasonable steps shall be taken by Local
869 to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Post at the same places and under the same conditions as set
forth in (4) above, as soon as forwarded by the Regional Director,
copies of the attached notice marked "Appendix C."
(f) Mail to the Regional Director for Region 4, signed copies of
"Appendix D" for posting by the Respondent Employer. Copies of
said notice, to be furnished by the Regional Director, after being
signed by an authorized representative of Local 869, shall be returned
forthwith to the Regional Director for such posting.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Notify the Regional Director for Region 4, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges unfair labor practices other than as
found herein by the Board.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT encourage membership in Local 869, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, by maintaining the second sentence of
particle 11 of our contract with that Union, set forth below ; by
refusing to credit employees with seniority because they are not
members of that Union; or by otherwise discriminating against
our employees because of nonmembership in that labor
organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, 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 delete from our collective-bargaining contract with
the above-named Union, the second sentence of article 11, which
reads as follows :
When the Employer acquires a branch or plant, or any part
thereof and consolidates it with his own, the seniority of the
employees so acquired who are members of Local 869 shall be
dovetailed with the seniority of other members of that Local
and the seniority of all other members shall follow that of the
members of Local 869 who were employees prior to the date of
acquisition.
WOODLAWN FARM DAIRY CO. 59
WE WILL notify Stephan Sabatini, Leonard McClain, and
William Parker, in writing, that they will be credited with their
accrued Scranton seniority for all purposes to which they are
entitled.
WE WILL reconsider the assignment of Scranton ice cream
delivery routes transferred to Wilkes-Barre on June 19, 1965,
taking into consideration the transferred seniority of Sabatini,
McClain, and Parker, and, jointly and severally with the above-
named Union, make them whole with backpay and interest for
any loss of pay they suffered because of the discrimination
against them.
WOODLAWN FARM DAIRY Co., DIvisio or
DOLLY MADISON FOODS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right to
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or com-
pliance with its provisions, they may communicate directly with the
Board's Office, 1700 Bankers Securities Building, Walnut and Juni-
per Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7601.
APPENDIX D
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF WOODLAWN
FARM DAIRY Co., DIVISION Or DOLLY MADISON FOODS, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Woodlawn Farm
Dairy Co., Division of Dolly Madison Foods, Inc., to discrimi-
nate against its employees because of nonmembership in this
labor organization, with regard to their seniority, or any other
condition of employment, except as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act.
WWWEE WILL delete from our collective -bargaining contract with
the above-named Employer , the second sentence of article 11,
which reads as follows :
When the Employer acquires a branch or plant, or any part
thereof and consolidates it with his own, the seniority of the
employees so acquired who are members of Local 869 shall
be dovetailed with the seniority of other members of that
Local and the seniority of all other members shall follow
that of the members of Local S69 who were employees prior
to the date of acquisition.
WE WILL notify Stephan Sabatini , Leonard McClain, and
William Parker , and the above -named Employer , in writing that
we have no objection to crediting the above-named individuals
with their accrued Scranton seniority for all purposes to which
they are entitled.
WE WILL jointly and severally with the above-named
Employer make whole Stephan Sabatini, Leonard McClain, and
William Parker with backpay and interest for any loss of pay
they suffered because of the discrimination against them.
LOCAL 869, INTERNATIONAL BROTIIERIIOOD of
TEAMSTERS , CTIAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of post-
ing, and must not be altered , defaced, or covered by any other
material.
If members have any question concerning this notice or compliance
with its provisions , they may communicate directly with the Board's
Regional Office, 1700 Bankers Securities Building, Walnut and Juni-
per Streets , Philadelphia , Pennsylvania 19107, Telephone 597-7601.
TRIAL EXAMINER'S DECISION
THE SUBSTANTIVE ISSUE
Whether the Company and Union violated Section 8(a)(3) and (b)(2), when a
division of one plant in one city was merged with another plant in a nearby city,
owned by the same company, by laying off three employees represented by a local
which belonged to the same international as the signatory union, under a contract
providing that when one plant of the company is "consolidated" with another plant
of the same company , the preexisting seniority of employees of the merged plant
shall be carried over into the acquiring plant and integrated or "dovetailed" with the
seniority roster of employees of the acquiring plant. The contract provides any
WOODLAWN FARM DAIRY CO. 61
complaint or grievance "arising under this agreement" shall be submitted to an
arbitrator. However, before the substantive issue can be reached, the threshold
question is the overlap of arbitration and Board jurisdiction. It must be determined
preliminarily whether the facts of the case are encompassed within the purview of
the Board doctrine which holds that if a question of contract interpretation is
involved, the Board ordinarily will not exercise its jurisdiction to settle such con-
flicts. The merged plant employees' contention that they were discriminatorily laid
off is based on their interpretation of the contract which they claim accords them
the right to have their preexisting seniority recognized by the acquiring plant. The
Respondents Union and Company deny the validity of this interpretation.
STATEMENT OF THE CASE
Upon a charge filed on July 12, 1965, by the three alleged discriminatees against
Local 869, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called Local 869, and Woodlawn Farm Dairy Co., divi-
sion of Dolly Madison Foods, Inc.,' herein the Company, the General Counsel
issued a complaint on September 24, 1965, alleging Respondents Union and Com-
pany violated Section 8(a)(1), (3), 8(b)(1)(A), and (2) of the National
Labor Relations Act, as amended, 29 U.S.C., Section 151, et seq., herein called the
Act. The answers of the Respondents deny the commission of any unfair labor
practices.
This proceeding with all parties represented was heard before Trial Examiner
Henry S. Salim in Wilkes-Barre, Pennsylvania, on November 16 and 17, 1965, and
briefs were received on January 19, 1966.
Upon the entire record in this case, including the briefs, there are hereby made
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent Company has maintained places of business at Wilkes-Barre, and
Scranton , Pennsylvania , where it is engaged in processing , manufacturing , and deliv-
ering milk, ice cream, and related dairy products. During the past year, the Com-
pany performed services valued in excess of $500,000, of which more than $50,000
were performed outside the Commonwealth of Pennsylvania and during the same
period Respondent Company received goods and material from outside the Com-
monwealth of Pennsylvania in excess of $50,000 directly to other enterprises located
outside Pennsylvania. It is found that the Respondent Company is engaged in comma
merce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
It is found that Local 229, which has an office in Scranton, Pennsylvania, and
Local 869, which has an office in Wilkes-Barre, Pennsylvania, both affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, are labor organizations within the meaning of the Act .2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
The three alleged discriminatees, Leonard McClain, William Parker, and Stephen
Sabatini, who had been employed by the Respondent Company at its Scranton plant
as- ice cream driver-salesmen for 31, 9, and 38 years, respectively, were laid off at
various dates in July 1965. They each had separate routes and serviced and deliv-
ered ice cream to retail stores in the Scranton area. Retailers in the Wilkes-Barre
area were serviced by ice cream driver-salesmen employed at the Wilkes-Barre
plant of the Respondent Company.3 The Scranton plant's employees are represented
by Local 229 of the Teamsters and the Wilkes-Barre employees of the same com-
pany, the Respondent Company herein, by Local 869 of the Teamsters.
'Dolly Madison Foods, Inc, is a successor to Foremost Dairies, Inc.
2 Scranton and Wilkes-Barre are approximately 18 miles distant from each other
3 The Scranton plant had three ice cream routes and Wilkes-Barre four routes and a
fifth during the summer months.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to June 19, 1965, both the Scranton and Wilkes-Barre plants had two divi-
sions: milk and ice cream. On that date, the Company decided for valid economic
reasons to close its Scranton ice cream division (but not its milk division) and to
merge it with its Wilkes-Barre plant's ice cream division so that thereafter its retail
ice cream customers in both the Scranton and Wilkes-Barre areas would be serv-
iced from the Wilkes-Barre plant. The Scranton routes remained the same after the
merger .4
In this connection, it should be noted that the ice cream driver-salesmen units of
both the Scranton and Wilkes-Barre plants had separate collective-bargaining agree-
ments with Locals 229 and 869, respectively, as distinct from the two plants' milk
branch employees. Under this arrangement, there were separate seniority rosters at
each plant for the milk and ice cream employees.
When the Scranton ice cream employees were notified on June 16, 1965, of the
merger of Scranton's ice cream division into the Wilkes-Barre plant, they were told
to report for work on June 21 at the Wilkes-Barre plant. Upon reporting at Wilkes-
Barre, the Scranton ice cream transferees were notified by the Company that it
would be necessary for them to transfer their union membership from Scranton
Local 229 to Wilkes-Barre Local 869, and sign a "bid" sheet for the routes which
they had serviced formerly from the Scranton plant .5
The three Scranton ice cream routes were posted on the bulletin board of the
Wilkes-Barre plant, the transferees bid for them, but they were awarded to three
employees who are members of Local 869, the Wilkes-Barre union. Local 869 inter-
preted article 11, which is set out in section III of this Decision, as not permitting
the seniority acquired by the transferees while employed at the Scranton plant to be
credited to them in computing their position on the Wilkes-Barre plant's seniority
roster. In other words, Local 869 recognized the Scranton employees' seniority only
from the date of their transfer to the Wilkes-Barre plant and not from the dates of
their original employment by the Company.
When the three alleged discriminatees were unsuccessful in bidding for their for-
mer ice cream routes in Scranton due to lack of sufficient seniority, based on Local
869's interpretation of article 11, infra, the Company then offered them jobs in its
Wilkes-Barre milk division. Two of them declined the offers and were discharged in
July, and the third accepted a temporary job which terminated about 3 months
later. None of them were offered jobs in the milk division of the Scranton plant.
A written grievance dated July 8, 1965, was filed with Local 229, the Scranton
union, of which the alleged discriminatees are members, alleging that "Due to trans-
fer of our branch operation to Wilkes-Barre we have been discriminated against by
denying our seniority clause in our contract thereby causing us to be laid off our
jobs by [the company]." The grievance was forwarded to Joint Council 53 of the
Teamsters to which Locals 229 and 869 belong and a meeting requested. The rec-
ord is silent as to whether the grievance was presented also to the Company. On
July 12, 1965, the three men filed unfair labor practice charges with the National
Labor Relations Board.
On August 30, 1965, Scranton Local 229 sent a telegram to the Company stat-
ing that if the Scranton and Wilkes-Barre ice cream drivers were not "dovetailed
within 72 hours" and their seniority "intermingled," the Union "would have no
alternative but to take such serious economic action warranted by the situation." To
this telegram, the Company, by letter dated September 3, replied stating that it
"would like to remind [Local 229] of the arbitration provisions and the no strike
clauses, [Article 7] in the contract." 6
On September 13, 1965, Teamsters Joint Council Number 53, to which both
Locals 229 and Local 869 belong, held a meeting in Philadelphia with respect to
the three dischargee's grievances. Shortly before the Council convened on Septem-
ber 13, J. L. Smith, who is president of Local 869 and also vice president of the
4 See respondent Company's Exhibit 1, which is attached hereto as Appendix B.
G By bidding is meant generally that vacant positions are advertised by the posting on
the employer's bulletin boards of notices of job vacancies. Present employees have the
privilege of applying and of obtaining the jobs on the basis of their seniority.
U Wilkes-Barre Local 869, first agreed to dovetail the Scranton transferees but later
opposed it and threatened a work stoppage if the Company acceded to Local 229 's demand
that the alleged discriminatees be given credit for the seniority which they acquired while
employed at the Scranton plant. See footnote 11.
WOODLAWN FARM DAIRY CO. 63
Joint Council, suggested that the three grievants withdraw the charges they had filed
with the Board. McClain, one of the grievants, thereupon contacted the Board's
Regional Office and requested that either the charges be withdrawn or held in abey-
ance until "the joint council heard it." A Regional Office attorney suggested to
McClain that it would be necessary for him to sign a withdrawal form whereupon
McClain stated: "Just hold onto that and we will go back and see if we are heard
[by the Council]."
When the Council convened on September 13, it held it could not entertain the
grievance, as its jurisdiction encompassed only controversies between constituent
unions of the Council as distinct from disputes between individual members, citing
for its authority section 4(a), article XV of the International's constitution.? Fur-
thermore, held the Council, it was precluded from acting on the grievance because
of the three men having filed charges with the Board the previous July.8
An appeal was then taken to the president of the Teamsters International, who
referred the matter back to the Council. The Joint Council wrote the grievants on
October 4, 1965, that no action could be taken until the Board case "has been
heard." 9
Locals 229 and 869's disagreement on the proper interpretation of article 11
"Seniority in consolidations," is the basis for the unfair labor practice allegations in
the complaint. Both Locals 229 and 869's contentions are based on their respective
and diametrically opposed interpretations of identical provisions in both the Wilkes-
Barre and Scranton locals' contracts with the Respondent Company. Scranton Local
229's interpretation of article 11 is that when the Scranton ice cream employees'
routes were transferred to Wilkes-Barre, their preexisting seniority should be pre-
served and integrated or dovetailed into the seniority list of the ice cream employees
of the Wilkes-Bane plant. Wilkes-Bane Local 869 denies that this interpretation is
correct and contends the proper interpretation to be that the seniority of the Scran-
ton employees did not carry over when they were transferred to the Wilkes-Barre
plant. Article 11 reads as follows:
Seniority in Consolidations.
When two or more branches or plants of the Employer are consolidated, the
seniority list of both branches or plants so consolidated shall be combined by
departments and made operative as if they were one, and the seniority of both
groups shall be dovetailed. When the Employer acquires a branch or plant, or
any part thereof and consolidates it with his own, the seniority of the employ-
ees so acquired who are members of Local 869, shall be dovetailed with the
seniority of other members of that Local and the seniority of all other mem-
bers shall follow that of the members of Local 869 who were employees prior
to the date of acquisition. When the business so consolidated has nonunion
employees, but they shall apply for membership in the Union, their application
shall be accepted by the Union.
Other contractual provisions pertinent to the adjudication of the issues in this
proceeding read as follows:
ARTICLE I
Union Recognition: Scope of Agreement
The Employer recognizes the Union as the sole collective bargaining agency
for its employees in the classifications covered in Schedule "A", attached hereto
only, who are employed in its ice cream plant at Wilkes-Barre, Pennsylvania-10
Y Respondent Local 869's Exhibit 3, section 4(a) of which will be found in the conclusions
of this Decision.
8 Present at the Council meeting were J. B. Backhus, president of the Council, J. L. Smith,
president of Local 869 and vice president of the Council, Maher, business agent of Local 229,
Walker, president of Local 229, Tricarlo, business agent of Local 869, Edward Davis,
attorney for the Council, and the three grievants.
0It should be noted that the three alleged discriminatees continued to retain their mem-
bership in Local 229 although they were advised to transfer to Local 869 by Martin
Pleopoli, 229's business agent and Nordell, a company official. An official of Wilkes-Barre
Local 869 also advised them that they would be accepted if they wished to transfer their
membership from Local 229. See article 6 of Respondent Union's Exhibit 1 providing for a
union shop.
10 See pages 21 and 22 of Respondent Local 869's Exhibit 1.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article III (which together with article IX has reference to seniority), provides
as follows:
ARTICLE IV
Lay-Offs and Resignations
In reducing the number of employees in any department the Employer agrees
that as among employees in such department, and having the same or substan-
tially similar jobs, the Steward shall be the last to be laid off, but otherwise
seniority shall prevail in lay-offs. It is further agreed that qualifications of
employees shall be a factor in determining order of lay-offs. Upon recall,
employees shall be notified in inverse order of lay-off. Employees in one
department shall be given preference for vacancies in another department, if
qualified.
For purposes of this Article, and of Articles 9, 11 and 24, of this Agreement,
there shall be three (3) departments: (1) Maintenance Department; (2) Cab-
inet and Sign Department and (3) all other departments, so that employees in
one department shall have no seniority rights in the other department.
ARTICLE IX
Seniority and Bidding for Vacancies
In the case of any vacancy in a job, or newly created permanent jobs, fall-
ing within any classifications covered by this Agreement, Employer agrees to
post notice of the existence of the same at least five (5) working days prior
to filling such vacancy, and to accept applications from employees within such
period. Preference in filling vacancies shall go to employees on the basis of
length of- service, provided they have sufficient ability and physical fitness to
perform the work, such ability and physical fitness to be determined jointly by
the Union's Business Representative and the Employer. Only a single job need
be posted in connection with any vacancy, that is, the job of the employee fill-
ing the vacancy need not be posted. Newly created jobs or vacancies may be
filled for the five (5) working day period without reference to seniority.
Both Locals 229 and 869, have clauses in their collective-bargaining agreements
with the Company which provide that in the event a difference should arise con-
cerning the interpretation of their agreements with the Company which cannot be
adjusted, it shall be submitted to arbitration. This grievance and arbitration provi-
sion reads as follows:
ARTICLE XIX
Arbitration and Grievance Procedure
In the event of a complaint or grievance arising under this Agreement, the
Steward shall take the matter up with the Employer and together they shall
make every reasonable effort to reach a satisfactory solution, provided, how-
ever, that this shall not bar the affected employee's right first to endeavor to
adjust the matter with his Employer.
If no satisfactory solution can be reached, the Business Agent of the Union
shall be notified by the Steward within seven (7) days of the occurrence of the
event complained of, and the Business Agent shall take the matter up with the
Employer within ten (10) days after occurrence of the event complained of. If
the Business Agent of the Union and the Employer cannot reach a satisfactory
agreement, the matter shall be referred to arbitration, as provided herein.
Any complaint or grievance arising under this Agreement, which cannot be
adjusted by the representative of the parties, shall be submitted to a disinter-
ested arbitrator, acceptable to both parties, promptly after the Union and the
Employer fail to agree, but it is clearly understood that the arbitrator shall not
have the power to alter any of the terms of this Agreement.
The arbitrator shall, upon notice to both parties, hear the issues involved.
His decision shall be submitted in writing within ten (10) days after the case
has been placed in his hands and shall be final and binding upon the parties.
The arbitrator, in his decision, shall assess the cost of the arbitration against one
or both of the parties in this Agreement.
In this connection, it should be noted that in 1960, in a reverse situation, involv-
ing the same employer and the same two unions, except that milk division employ-
ees of the Wilkes-Barre plant were transferred to the Scranton milk plant, when
Wilkes-Barre's milk division was transferred to the Scranton plant, a difference of
interpretation arose between Locals 229 and 869, namely: shall departmental or
overall seniority apply so that the Wilkes-Barre milk division employees transferred
11,00DLAWN FARM DAIRY CO. 65
to Scranton could dovetail their seniority with the seniority roster of the Scranton
milk division employees who were members of Local 229. The matter was referred
to an arbitrator, Professor Alexander Hamilton Frey, a member of the faculty of
the University of Pennsylvania Law School, who held against the Wilkes-Barre
employees who were transferred to Scranton. The dovetailing provision in the
Scranton Union's contract provided that the dovetailing of seniority in the event of
a consolidation shall be confined to those who are already members of the Scranton
Union and that such members shall have super-seniority over all other members. A
copy of the arbitration decision is attached hereto as Appendix A.
B. Contentions
The General Counsel contends that Respondent Local 869's interpretation of arti-
cle 11, supra, section III, accords higher seniority rights to employees who have
been, prior to acquisitions, mergers, or consolidations, members of Local 869, the
Wilkes-Barre Union. As such, his argument continues, it interferes with the rights
of the transferees who are members of Scranton Local 229, not to join or seek rep-
resentation by Local 869, and, therefore, by discriminating against those employees
who, prior to merger or acquisition, have exercised their statutorily protected right
not to join Local 869, article 11 inherently encourages membership of employees in
Local 869 and is thus violative of the Act. Moreover, claims the General Counsel,
when Local 869 deprived the Scranton employees of their seniority for arbitrary
reasons, after their transfer to Wilkes-Barre, by the establishment of a seniority list
based on an unfair consideration of union membership in Local 869, these three
employees were discriminated against within the meaning of Section 8(b)(2) and
(a)(3) of the Act.
Local 869 contends it did not violate the Act by refusing to dovetail the senior-
ity of the three Scranton driver members of Local 229 as there was no "consolida-
tion" within the meaning of section 11 because no right to a combining of seniority
lists and dovetailing of seniority of the three Scranton transferees can be asserted in
the absence of "two or more branches or plants of the Employer [being] consoli-
dated." See article 11, supra. Furthermore, claims 869's counsel, not only is Local
869 without power or authority to dovetail the seniority of the Scranton employees
with those of its members but also no actual animus or intent to discriminate has
been established. Finally, the complaint must be dismissed, Local 869 contends,
because the alleged discriminatees have failed to exhaust the contractual arbitration-
grievance procedure provided for in the collective-bargaining agreement."
The Respondent Company's argument is based on two points: the alleged dis-
criminatees have no statutory right to seniority in the Wilkes-Barre unit as senior-
ity is a matter of contract and not a basic right; and the Company has not enforced
an unlawful contractual provision because article 11, does not discriminate against
any employee because of membership or nonmembership in a union. Moreover, it
was upon Local 869's insistence, alleges the Company, that the Scranton ice cream
routes be posted for bidding, that the Company gave such notice to the employees.12
C. Discussion
Under Section 8(a) (3) of the Act, it is an unfair labor practice for an employer
"by discrimination in . employment . to encourage or discourage member-
ship in any labor organization.. . ." By Section 8(b) (2) of the Amended Act, this
prohibition was extended to unions, which were forbidden "to cause or attempt to
cause an employer to discriminate against an employee in violation of subsection
(a)(3) ...."
The Supreme Court held in Radio Officers' v. N.L.R.B., 347 U.S. 17, 53, that
Section 8(b)(2) is violated where a union caused the employer to engage in con-
duct which violated Section 8(a)(3).13 Therefore, subject to a proviso permitting
"Watkins, president of Local 229, testified that Smith, president of Local 869, stated
that because Local 229 refused to dovetail laid-off members of Local 869 in 1960, now that
the situation was reversed, 869 would accord to 229's members the same treatment. Tile
Company's labor relations official testified that Local 869's officers had no objection at first
to allowing the Scranton transferees to count the time they worked at the Scranton plant
in computing their seniority. See page 85 of transcript.
12 See article 9 of Local 869's Exhibit 1.
13 Radio Ofcers' case was limited by the Supreme Court to situations where the employ-
er's conduct is "inherently" discriminatory. Id. at 48.
264-047-67-vol. 162-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of employees for failure to pay union dues and initiation fees pursuant
to a union-security agreement , an employee or applicant for employment may be
subjected to job discrimination at the hands of the union.
With respect to seniority , it is preference in employment based upon length of
service. However , this preference is not absolute, but is limited by many factors
which determine the value of seniority to different groups of workers . Of course,
employees have no inherent , statutory , or constitutional rights to seniority. Such
rights exist solely by reason of contract . 14 When forces are curtailed , management
is confronted frequently with the problem of layoff of the regular working force. It
is reasonable for employers to look upon those with greatest seniority as their most
trained and valuable employees and thus wish to retain them.
Then too, seniority can affect the tenure of employment of individual employees.
By its very nature, seniority is a relative matter and by Local 869 's interpretation
whereby the seniority acquired by the transferees in the Scranton plant was denied
to them, its Wilkes-Barre members' seniority was necessarily improved and the
reverse effect of this interpretation of article 11 redounded to the detriment of the
Scranton transferees . Thus, the effect of 869's interpretation was to penalize the
alleged discriminatees because they had not been members of Local 869. By this
interpretation by Local 869 , in which the Company acquiesced (contrary to its
original belief that the transferees were entitled to compute the time they were
employed in its Scranton plant ), the Company thereby affected their tenure of
employment . Consequently , the determination of the alleged discriminatees ' senior-
ity was made on the basis of when an employee joined Local 869 and not when
they were originally employed by the Company . The effect of the Respondent
Union's interpretation of article 11 was to encourage and actually require these
three Scranton employees to become members of the Wilkes -Barre Union as soon
as they were transferred.
On the other hand, a wide range of reasonableness must be allowed a statutory
bargaining representative in serving the employees it represents , subject always to
the complete good faith and honesty of purpose in the exercise of its discretion.ls
Moreover , the labor organization is clothed with power not unlike that of a legis-
lature which is subject to constitutional limitations on its power to discriminate
against the rights of those for whom it legislates and which is also under an affirm-
ative constitutional duty equally to protect those rights . 1e Therefore , it can be argued
that the fair interpretation is that the labor organization chosen by the employees
to represent them is to do exactly that and to protect its members ' rights to the
utmost and it is to act fairly and impartially for the best interests of those whom it
represents. When a union with the status of an exclusive bargaining agent takes hos-
tile action against any employees in the appropriate bargaining unit , upon irrele-
vant, invidious , and unfair considerations ,17 the union violates its obligation to its
members and thereby restrains and coerces those adversely affected. The Board has
held that such a union denies to those employees the representation which they are
guaranteed by the Act. 18 Conversely , the union must make decisions and the deter-
mination of seniority cannot always be completely satisfactory to the same degree
for all classes and groups of employees . The Supreme Court has held, however, in
a "dovetailing" situation that this does not prevent the union from choosing to seek
an integrated seniority list even though the inevitable result may be harmful to some
members of the union.19
Local 869 contends , however, that it bargained for its members exclusively when
it negotiated for and included in its contract with the Company the provisions of
article 11 . Lending credence to this argument is the fact that human nature being
11 Starke v. N.Y., Chicago & St. Louis R . R., 180 F . 2d 509 , 571 (QA. 7) ; Trailmobile Co.
v. Whirls, 331 U.S. 40; Wade v . Southern Pacific Co ., 248 F.Supp. 493.
15 Ford Motor Co. v. Huffman, 345 U. S. 330 at 338.
16 Steele v. Louisville and Nashville Railroad Co., 323 U.S. 192, 198 , 199. See Cox , Rights
under a Labor Agreement, 69 Harv. L . Rev. 601, 638.
17 Local 1367, International Longshoremen's Association ( Galveston Maritime Associa-
tion ), 148 NLRB 897.
18 Hughes Tool Co., 147 NLRB 1573 , 1574 ; Local 1367 , International Longshoremen's
Association ( Galveston Maritime Association ), 148 NLRB 897 , 898-900; Maremont Corpo-
ration, 149 NLRB 482; Local Union No. 12 , Rubber Workers ( The Business League of
Gadsden) , 150 NLRB 312.
19 Humphrey v. Moore, 375 U.S . 335; Carpenters Union v . Brady, 241 F.Supp. 679;
Aaron, Reflections on the Legal Nature of Seniority Rights, 75 Harv. L. Rev . 1536 ( 1962).
WOODLAWN FARM DAIRY CO. 67
what it is, Local 869 did not have in mind or intend to benefit Local 229's members
who might be adversely affected by a merger of the Scranton plant's ice cream divi-
sion with that of the Wilkes-Barre plant. Corroborative of this view, are cases which
indicate that a union is obligated to protect the seniority rights of its members or
face unfair labor practice charges,20 or perhaps possible lawsuits by members in a
State or Federal court for breach of contract,21 or even possible suit under the
Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 523, Title 29
U.S.C. § 412.22
In this proceeding, however, before the rights of these three alleged discriminatees
can be adjudicated and the question of whether the Act has been violated resolved,
it must be determined first whether Respondents' interpretation of article 11, supra,
was correct. This, in turn, raises the question of whether interpretation of a con-
tract provision is cognizable by the Board so as to be adjudicated under the unfair
labor practice provisions of the Act, or should it be resolved under the arbitration
procedures provided for in the parties' contract? Accordingly, it must be determined
what the Board has held with respect to whether it will entertain jurisdiction of
bona fide disputes between parties to an arbitration clause which involves the inter-
pretation of a provision in their collective-bargaining agreement.
The Board declared in United Telephone Company which alleged no violation
of the Act other than the one arising out of the parties' conflicting contracting
interpretations:
Regarding the question of which party correctly interpreted the contract, the
Board does not ordinarily exercise its jurisdiction to settle such conflicts. As
the Board has held for many years, with the approval of the courts: . . . it
will not effectuate the statutory policy . . . for the Board to assume the role
of policing collective contracts between employers and labor organizations by
attempting to decide whether disputes as to the meaning and administration of
such contracts constitute unfair labor practices under the Act.23
In Morton Salt 24 which involved an 8(a) (2) allegation, the Board reaffirmed its
holding in United Telephone, that it will not "police" collective-bargaining agree-
ments, with the additional observation, that this is particularly true, "where it is
evident that the Respondent acted reasonably and in good faith."
In Local 611, Chemical Workers Union, AFL-CIO,25 the Board held it will not
interpret a collective-bargaining agreement where there is a contractual grievance
procedure providing for arbitration. To the same effect is the Board's holding in
National Dairy Products Corporation,26 where the complaint was dismissed because
the dispute which gave rise to the charge of unfair labor practices was solely one of
contract interpretation. The Board also stated that there was no showing that the
Respondent, in interpreting the contract as it did, was motivated by union animus or
was acting in bad faith. In Timken Roller Bearing Co. v. N.L.R.B.,27 the court
found a dispute to be a matter of contract interpretation stating that the Board has
held "it has no power under the Act to police collective-bargaining contracts
between employers and labor organizations." 23
In one 8(a) (5) proceeding, the issue involved the alleged refusal to negotiate
about the relocation of a trucking terminal. The Board in dismissing the complaint
said:29
Moreover, as also contended by the Respondent, here the parties had included
in their collective-bargaining agreement a specific grievance procedure provid-
ing for final arbitration of all "grievances involving the interpretation or appli-
cation of the [contract's] provision." Furthermore, the Union kept insisting
-0N.L.R.B. v. Local 294, Teamsters , 317 F.2d 746 (C.A. 2) ; N.L.R.B. v. Miranda Fuel
Co., 326 F.2d 172 (C.A. 2)
21 Textile Workers Union v. Lincoln Mills , 353 U. S. 448; Local 174 Teamsters v. Lucas
Flour Mills, 369 U.S. 95 ; Smith v. Evening News Assn ., 371 U. S. 195.
2llughes v. Bridge S Ironworkers , Local 11, 287 F.2d 810 (C.A. 3), cert. denied 368
U.S. 829 ; Parks v. IBEW, 314 F.2d 886 ( C.A. 4), cert. denied 372 U.S. 976.
23 112 NLRB 779 at 781 and see footnote 4.
21119 NLRB 1402.
2123 NLRB 1507, 1508, 1519.
21126 NLRB 434.
2r 161 F. 2d 949 , 954 (C.A. 6).
28 See Shell Oil Co., 93 NLRB 161 ; Vickers Inc., 153 NLRB 561.
25 Montgomery Ward d Co., 137 NLRB 418, 423.
6b DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the dispute should be settled by the grievance procedure, and the Respond-
ent agreed. Yet, despite the collective-bargaining agreement devised by the
parties themselves for settling such a dispute, the Union chose instead to file
the instant charges-thus asking the Board, in effect, to intervene and resolve
the dispute. In these circumstances, the Board would be frustrating the Act's
policy of promoting industrial stabilization through collective bargaining if
we were to intervene in this dispute, instead of requiring the Union in this case
to give "full play" to the established grievance procedure.
In Hercules Motor Corp.,30 the union requested certain data from the company
which the latter contended was properly the subject of a grievance under the provi-
sions of the parties' collective-bargaining agreement. A Board majority concluded
that the basic issue involved a question of contract interpretation. The Board stated:
The Union's grievance involved a dispute concerning interpretation of the con-
tract . . . . On its face, the contract provides machinery devised by the par-
ties themselves for settling such a dispute. Yet, instead of exhausting this proce-
dure and proceeding within the framework of its contract, the Union elected to
file charges asking the Board to intervene and resolve the dispute. While, under
Section 10(a) of the Act, the Board is not bound as a matter of law by private
agreements, we are of the opinion that it would not effectuate the policies of
the Act for us to thus intervene in the case.
Title II of the Act states in Section 201(a) that "sound and stable industrial
peace and the advancement of the . . . best interest of employers and employ-
ees can most satisfactorily be served by the settlement of issues between
employers and employees through the processes of conferences and collective
bargaining between employers and the representatives of their employees."
It further states in Section 203(d) that "Final adjustment by a method
agreed upon by the parties is hereby declared to be the desirable method for
settlement of grievance disputes arising over the application or interpretation
of an existing collective-bargaining agreement." These declarations of policy
are of course equally valid guidelines for our administration of Title I of the
Act, whose stated policy is to encourage the practice and procedure of collec-
tive bargaining. As was said by the Supreme Court of Section 203(d) quoted
above, "That policy can be effectuated only if the means chosen by the parties
for the settlement of their grievances under a collective bargaining agreement is
given full play." If, instead of requiring the Union in this case to give "full
play" to the grievance procedure, we were to permit the facilities provided by
the Act to be used in avoidance of the bargaining agreement, we "would be
frustrating the Act's policy of promoting industrial stabilization through collec-
tive bargaining."
The Board in the International Harvester Company case 31 where the union and
company were parties to a union-shop contract and the union requested the com-
pany to discharge an employee because of failure to pay his union membership
dues, upon failure of the company to do so, the union filed a grievance which went
to arbitration. The arbitrator sustained the union's position which resulted in a
reduction in the employee's seniority and he was laid off in a subsequent reduction-
in-force. The employee filed unfair labor practice charges against the union and the
company. The Board in dismissing the complaint stated: "If complete effectuation
of the federal policy is to be achieved, we firmly believe that the Board, which is
entrusted with the administration of one of the many facets of national labor
policy, should give hospitable acceptance to the arbitral process as `part and parcel
of the collective bargaining process itself,' and voluntarily withhold its undoubted
authority to adjudicate alleged unfair labor practice charges involving the same
subject matter, unless it clearly appears that the arbitration proceedings were tainted
by fraud, collusion, unfairness, or serious procedural irregularities or that the award
was clearly repugnant to the purposes and policies of the Act." 32
The Board recently had occasion to hold that a refusal to allow more than two
union representatives to participate in grievance proceedings does not amount to a
30136 NLRB 1648, 1651, 1652.
31138 NLRB 923.
32 See 0scherwitz 5 Sons, 180 NLRB 1078, where the Board in an 8(a) (3) case, alleging
discriminatory discharge, dismissed the case because an arbitration award had decided the
case against the employee. Cf. Carey v. Westinghouse Electric Co., 375 U.S. 261, 270
Monsanto Chemical Co., 97 NLRB 517, 520, enfg. 205I'2d 763 (C.A. 8).
WOODLAWWWN FARM DAIRY CO. 69
refusal to bargain by an employer. The Board noted that there was an honest differ-
ence as to the interpretation of the contract, that the parties' bargaining relationship
in the past had been amicable and, accordingly, there was no serious obstacle to an
effective resolution of the dispute through the contract's arbitration provisions.33
In Crown Zellerbach 34 the Board stated: "In view of this background of peace-
ful and what appears to be a wholly-salutary employer-employee relationship, we
are reluctant to issue a remedial order . . Particularly is this so since the
parties have failed to utilize the contractual procedures established for bargaining
concerning the interpretation and administration of their contract and apparently
where there is no serious obstacle to an amicable settlement of the issue . . .
within the framework provided in that contract."
In all the cases cited above, where the Board refused to entertain jurisdiction,
there was a question of contract interpretation involved and the contracts all pro-
vided for arbitration 35 Such abstention of jurisdiction where the contract provides
for arbitration is based on the rational that the processes of arbitration have a
mediatory and therapeutic influence on the conflicting interests of the parties
involved and also the law favors the resolution of labor disputes through the griev-
ance and arbitration procedure established in the collective-bargaining agreement
because it furnishes a direct substitute for industrial strife.36 Of course, the Board's
declination of jurisdiction in the above-cited cases were purely discretionary since
Section 10(a) of the Act expressly provides that the Board's jurisdiction "shall not
be affected by any other means of adjustment or prevention that has been estab-
lished . by agreement, law or otherwise." 37
In the Warrior & Gulf Navigation Co. case supra, footnote 36, the Supreme
Court pointed out that the grievance and arbitration procedures under a collective-
bargaining agreement is the essence of the system of industrial self-government and
constitutes a part of the continuous collective-bargaining process. The thrust of the
Court's reasoning is that arbitrators should be permitted to decide questions of con-
tract interpretation. In the American Manufacturing Co. case, supra, footnote 36,
the Court stated at page 566, "that policy can be effectuated only if the means
chosen by the parties for settlement of their differences under a collective bargain-
ing agreement is given full play." However, the Board has added a caveat to these
precepts: even though the contract provides for arbitration, the Board may enter-
tain the complaint if the respondent's contention with respect to the interpretation
of the contract is insubstantial, "untenable" and the provision in question is "plain
and unambiguous." 38
In situations, however, where the contract provides no arbitration procedure, it
appears that the Board will exercise its discretion (as distinguished from power) 39
as to whether it will elect to adjudicate the unfair labor practice complaint as pro-
vided for in Section 10(a) of the Act 40
In C & C Plywood Corp., 148 NLRB 414, the employer changed his employees'
wage rates without bargaining with their union representative, contending that such
unilateral action was not justified by his interpretation of the contract but the Board
was without jurisdiction to adjudicate the unfair labor practice proceeding until the
contract issue was first decided by the courts. The contract contained no arbitration
provision. The Board in reversing the Trial Examiner, rejected the employer's con-
tention that it lacked power to adjudicate the unfair labor practice question because
a threshold question of contract interpretation was presented. The Court of Appeals
declined to enforce the Board's Order.41 It held that since the nature of the con-
troversy is such that the existence or nonexistence of an unfair labor practice does
not turn entirely upon the provisions of the Act, but arguably upon a good-faith
29 American Oil Co., 152 NLRB 492.
95 NLRB 753.
Cf. Square D Co. v. N.L.P.B., 332 F.2d :60 (C.A. 9).
3G Section 203(d ) of the Labor-Management Relations Act; United Steelworkers v. War-
rior d Gulf Navigation Co., 363 U.S. 574; United Steelworkers v. American Manufacturing
Co., 363 U.S. 564 : United Steelworkers V. Enterprise Wheel 6 Car Corp ., 363 U. S. 593;
Drake Bakeries, Inc. v. Local 50, 370 U.S. 253, 263-266.
97 See Carey v. Westinghouse Electric Corp., 375 U.S. 261, 269.
Century Papers, Inc., 155 NLRB 358. See also Huttig Sash Door Co., 154 NLRB 811.
29 Flintkote Co., 149 NLRB 1561, 1563, footnote 1.
10 Cloverlea f Division of Adams Dairy Co., 147 NLRB 1410 ; Smith Cabinet ,Manufactur-
ing Co., 147 NLRP, 1506.
41 351 F2d 224 ( C.A. 9), cert. granted April 18, 1966 (61 LRRM 255).
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute as to the correct meaning of the provisions of the collective-bargaining
agreement, the controversy was beyond the subject-matter jurisdiction of the Board.
It was, held the court, a matter for arbitration where the collective-bargaining
agreement so provides, or for adjudication by the courts, where there is no arbitra-
tion provision. The Board has no jurisdiction, the court stated, where the existence
of an unfair labor practice is "dependent upon the resolution of a preliminary dis-
pute involving only the interpretation of the contract."
In arriving at a decision herein, it has been borne in mind and concomitant
consideration given to Sections 203(d) and 301(a) of the Labor-Management
Relations Act, 1947 (61 Stat. 136, 29 U.S.C. 151, et seq.), which provides respec-
tively as follows:
§ 203(d)-Final adjustment of a method agreed upon by the parties is hereby
declared to be the desirable method for settlement of grievance disputes arising
over the application or interpretation of an existing collective-bargaining agree-
ment. The [Federal Mediation and Conciliation Service] is directed to make
its conciliation and mediation services available in the settlement of such griev-
ance disputes only as a last resort and in exceptional cases.
Sec. 301.(a) Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as
defined in this Act, or between any such labor organization, may be brought
in any district court of the United States having jurisdiction of the parties,
without respect to the amount in controversy or without regard to the citizen-
ship of the parties.
The Board has never specifically delineated in either its rules and regulations or
statements of procedure, the factual situations where exhaustion of the arbitration
provisions of the collective-bargaining agreement will be required. A study of the
above cases appears to hold that the Board will not exercise jurisdiction where an
arbitration proceeding has already been instituted; 42 but if there is no question of
contract interpretation that must be resolved before the determination of an unfair
labor practice can be made; or, if the contract contains no arbitration provisions;
or if the contract defense is insubstantial,43 the Board may proceed to an adjudica-
tion of the unfair labor practice complaint. With the advent of the C & C Plywood
decision, supra, it is not clear where the line will be drawn unless the fact that no
arbitration provision was present in C & C Plywood distinguishes that case. How-
ever, there are two guidelines in the Act: Section 203(d), supra, and Section 10(a),
cited above.44
Under Section 301, the courts are given the power to first determine whether the
dispute is arbitrable.45 It might be argued, therefore, that the Board will, in such a
situation, hold the matter in abeyance until the court has disposed of the question
as to whether the issue involved is a subject for arbitration. In fact, in a discharge
case, the Board did this very thing. The General Counsel issued a complaint, but
before the case came to hearing, a Federal District Court issued an order in
response to an earlier petition, directing arbitration of the employees' terminations.
The Board stated: 46
The Board policy is to effectuate wherever possible, the intent of Congress
expressed in Section 203(d) of the 1947 Labor-Management Relations Act,
namely, "Final adjustment by a method agreed upon by the parties is hereby
declared to be the desirable method for settlement of grievance disputes arising
over the application or interpretation of an existing collective-bargaining agree-
ment." In effectuating that congressional intent, the Board has recognized exist-
ing arbitration awards and in certain circumstances has required parties before
resorting to Board processes to utilize the grievance and arbitration procedure
in agreements to which they are signatory. [citing cases.] These policy con-
siderations are clearly applicable here where not only did the parties have
available a procedure to settle the dispute, but a United States District Court
42 United Telephone, 112 NLRB 779.
42 Adams Dairy, 147 NLRB 1410; Century Papers Inc.. 155 NLRB 358.
44 See N.L.R.B. v. Gene Hyde, d/b/a Hyde's Supermarket, 339 F.2d 568, 572 (C.A. 9),
where the court stated that the Board in general does not adjudicate contract disputes.
45 Wiley ct Sons v. Livingston, 376 U.S. 543.
46 Dubo Mfg. Co., 142 NLRB 431, 432. Cf. Kentile Inc., 147 NLRB 980 at 981.
11,00DLAWN FARM DAIRY CO. 71
has ordered them to utilize it. It would certainly frustrate the intent expressed
by Congress if the Board were now to permit the use of the Board's processes
to enable the parties to avoid their contractual obligations as interpreted by the
court. [Emphasis supplied.]
Another case of significant importance with respect to the issue in the case at
bar is that of Association of Employees v. Westinghouse Corp., 348 U.S. 437, foot-
note 2, where the Supreme Court stated:
. . . No other provisions of the Act indicates that substantive federal law
was to guide the determination of the contractual rights and liabilities that are
to flow from a collective-bargaining contract * * * Section 8 enumerates
unfair labor practices; these may in some instances become relevant to the
validity or interpretation of a collective agreement. Certain procedural safe-
guards are placed about the collective-bargaining agreement: an obligation to
confer in good faith on questions arising under it; a duty to follow certain
steps prior to terminating or modifying the agreement unilaterally, § 8(d),
204 (a) (2). And a limited number of substantive rights conferred under the
Act may incidentally involve the interpretation of the collective agreement.
E.g., § 9(a). It is significant, however, that breach of contract is not an "unfair
labor practice." A proposal to that end was contained in the Senate bill, but
was deleted in conference with the observation: "Once the parties have made
a collective bargaining contract the enforcement of that contract should be left
to the usual processes of the law and not to the National Labor Relations
Board....
Furthermore, respect for the parties' agreed-upon-contractual arrangements for
settling their disputes and thus ameliorating the possibility of strikes by providing
for arbitration, which § 302 of the 1959 Act encourages, and Section 203(a) of the
1947 Labor Management Relations Act indicates a national policy in favor of
fostering, might be subverted if competing jurisdiction were asserted. Thus, a
recalcitrant party whose motives are suspect, may consider the Board an alternative
refuge to have his claim adjudicated.
When the doctrine was enunciated in the Supreme Court's landmark Lincoln
Mills 47 and Steelworkers decisions 48 that Federal district courts have jurisdiction
to enforce arbitration under collective-bargaining contracts in suits brought under
§ 301,49 it was clear that arbitration was going to play an increasingly important
role in the resolution of labor disputes. The encouragement of labor arbitration
was declared to be a matter of public policy. But it was not until the three Steel-
workers decisions 50 how important labor arbitration had become in the view of
the Supreme Court. The decisions drastically limited the authority of the courts in
determining arbitrability and in reviewing awards and correspondingly increased
the authority of the arbitrators. The courts were excluded from inquiring into the
merits of a case in determining arbitrability or, reviewing an award.
D. Conclusions
An analysis of the undisputed facts in this proceeding shows there is insufficient
evidence adduced by the General Counsel to indicate that the Respondents Union's
and Company's interpretation of article 11, is "untenable." 51 On the contrary, their
interpretation not only colorably justified the good-faith action taken by them, but
also there was the 1960 arbitration decision (Appendix A), based on analogous facts,
to lend credence to their motive in refusing to dovetail the alleged discriminatees.
The Board is not the proper forum for parties seeking an interpretation of their
collective-bargaining agreement. Where, as here, Respondents have a sound arguable
basis for ascribing a particular meaning to their contract and their action is in
accordance with the terms of the contract as they construe it, and there is no show-
ing that the Respondents, in interpreting the contract as they did, were motivated by
union animus or were acting in bad faith,52 the Board ordinarily will not exercise
See footnote 21.
See footnote 36.
4° See p. 70.
so See footnote 36.
5' See footnote 38.
62 United Telephone Compan y, 112 NLRB 779, 781.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its jurisdiction to resolve a dispute between the parties as to whether the Respond-
ents' interpretation was correct.53 As the Board stated in Consolidated Aircraft
Corporation, 47 NLRB 694, 706, enfd. 141 F.2d 785 (C.A. 9), "it will not effectuate
the policy of `encouraging the practice and procedure of collective bargaining' for
the Board to assume the role of policing collective contracts between the employers
and labor organizations by attempting to decide whether disputes as to the meaning
and administration of such contracts constitute unfair labor practices under the Act."
The most that can be said is that Respondents misinterpreted article 11. But to
equate this with the commission of an unfair labor practice is another matter as this
would be tantamount to holding that a good-faith belief in a respondent's interpreta-
tion of a contractual provision will not serve as a defense to an allegation of dis-
crimination within the meaning of Section 8(a) (3) and (b) (2). In these circum-
stances to find a violation of the Act would be contrary to the Board's holding that
if a dispute involves interpretation or application, it will not police or enforce a
contract in such a posture.54
Assuming, arguendo, ambiguity in article 11, the provision which provides how
seniority shall be treated in the event of a "consolidation" of Respondent Company's
plants or branches, it would still not change the conclusion reached above, as
article 11 is susceptible of eventual determination through arbitration, and is, there-
fore, potentially unambiguous.
The collective-bargaining agreement involved here was intended to avoid recourse
to the Board's statutory processes by providing for arbitration-a speedy, final, and
effective means of disposing of such a situation as is present here. Under such cir-
cumstances, an unfair labor practice proceeding which circumvents the contractual
arbitration machinery is not best designed to resolve the parties' differences with
maximum dispatch. To avoid such a result, it would be preferable to invoke the
arbitration provisions of the contract and not countenance additional delay by per-
mitting the Board's processes to be utilized.
In volume 17, New York University Annual Conference Report on Labor, at 208,
it is stated:
Where the threshold question involves contract interpretation, it would seem
there is no compelling reason why the aggrieved party should not be required
to exhaust the agreed upon private arbitration procedures in the collective bar-
gaining agreement as a condition of seeking a Board determination on the
merits. This might be considered akin to equitable abstention in the sense that
the Board should defer to the adjudicative machinery of the parties' contract
as a matter of comity ... [Such a policy] neither trenches upon statutory pre-
rogative nor subverts the sanctity of agreements arrived. at in arms-length deal-
ings subject, of course, to the proviso that there is a bona fide issue of inter-
pretation. However, the Supreme Court stated that even a frivolous claim is
arbitrable because of the `therapeutic values' in the processing of all claims.
[Citing United Steelworkers v. American Manufacturing Co., 363 U.S. 658]
Collective-bargaining agreements are to be given a reasonable construction, not
one which results in injustice and absurdity 55 They are sui generis and are not to
be treated as orthodox contracts,56 but their implications must be determined from
the connection in which it appears.57 To hold, therefore, that the agreement to
arbitrate should be negated because Local 229 was not a party to the Respondent
Company's and Respondent Local 869's agreement or that Local 869 is not a party
to the contract executed by the Company and Local 229, is a restrictive interpreta-
tion which would frustrate rather than serve the purpose of the Act; it would disre-
gard the realities of the situation here presented, favor form over substance, place
a premium upon a mechanistic approach and disregard the compelling equitable
considerations pertaining to the predicament of the three employees involved herein.
Where the practicalities require it, the courts not infrequently treat the relation-
ship of the parties involved in a manner differently than that required by orthodox
contract law. This is so because of the overriding enunciated congressional objective
'3National Dairy Products Corporation , 126 NLRB 434. See also Morton Salt Company,
119 NLRB 1402; Adams Dairy Co., 1.47 NLRB 1410.
Carroll's Transfer Co., 56 NLRB 935, 939.
Atlantic Coast Line RR. v. Railway Clerk e , 210 F.2d 812, 815 (C.:1. 4).
6 See J. I. Case v. N.L.R.B., 321 U.S. 332..
Id. at 3P4; Wiley v. Livingston, 376 U. S. 543, 550.
WOODLAWN FARM DAIRY CO. 73
of insuring industrial peace and stability through collective-bargaining negotiations
and the embodiment of such agreements in a written contract.58 Consequently, would
not the national interest in industrial peace be adversely affected, if either Local 229
or Local 869 were held not to be a party insofar as resolving the issues in this case?
It is that element present here which gives one pause against falling into "a purely
mechanical application" 59 of the doctrine that would ignore the differences between
an orthodox contract and a collective-bargaining agreement which calls into play
important competing equitable considerations. To disregard this factor is to give
credence to a literal interpretation without regard to the attendant realities in this
proceeding. The congressional purpose embodied in the Act is not served by such
literalness. It would seem that a mechanistic approach when judged by the realities
of the case and found wanting cannot be countenanced. Nor can the substantive
legal incidents resulting from the terminations of the alleged discriminatees be
adjudicated in a vacuum or in the abstract without regard to past and existing cir-
cumstances. As was said by Judge Hutchinson: "Drawn to deal substantially with
substantial things, the National Labor Relations Act has been from the beginning, it
must continue to be, consistently with its avowed purpose and the language employed
in the Act, broadly construed and as broadly given effect to cope with and prevent
the mischiefs it was designed to meet and do away with. Shadow boxing with
words, including dialectical hair splitting , the tithing of mint, anise and cumin, and
the division of a mustard seed to reach a formal, a technical result, has therefore
no proper place, and may not be employed , in construing and applying it." 60
Under the peculiar circumstances of this case, as well as the equitable ends to be
accomplished, it is of minor significance and not of paramount importance that
the Wilkes-Barre union is not a signatory to the contract between the Respondent
Company and Scranton Local 229. The overriding considerations are that the same
company is involved , similar issues were arbitrated 6 years ago , 61 and most
importantly, both unions belong not only to the same International but also, are
members of the Joint Council which should not (in the interests of justice and to
obviate undue delay) have shirked its responsibility but it should have resolved the
three dischargees dispute as the Company was eager for it to do. If the Joint Council
had done this, it would have insured speedy resolution of the issue, centralized the
controversy by limiting it to a single decision, thus accelerating final resolution. This
is in accord with one of the objectives of the Act-the prompt determination of
labor disputes.
Then too, Local 229, on behalf of its members, the alleged discriminatees, is
vitally interested in the outcome of this dispute; the same employer is involved at
both plants whose employees are members of both unions herein and these unions
are also constituents of Joint Council 53, which could have played a determinative
role in this dispute. Thus, the Company, the two sister unions, the Joint Council
and the discriminatees, who are third party beneficiaries to all benefits of the
collective-bargaining agreement,62 are allied and nominal parties through their
mutual concern to have resolved the issues in this proceeding.63 Moreover, the
merger of the Scranton plant's ice cream division with that of the Wilkes-Barre
plant by which Local 229's members were transefrred to Wilkes-Barre, made both
the Scranton union and its transferred members as well as the sister Local in
Wilkes-Barre, parties to and supplied the necessary privity whereby the duty to
arbitrate survived the merger.64
In John Wiley & Sons v. Livingston, 376 U.S. 543, the Supreme Court held that
the disappearance by merger of a corporate employer that had entered into a con-
tract with a union does not automatically terminate rights of the employees covered
by the contract, but that the duty to arbitrate survives the merger and the successor
employer can be required to arbitrate with the union under the agreement. By
6e See Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177 at 183.
53 N.L.R.B. v. Associated Musicians, Local 802, 220 F.2d 900, 906 (C.A. 2), cert. denied
351 U.S. 962.
0°N.L.R.B. v. Metallic Building Co., 204 F.2d 826, 828 (C.A. 5). Cf. General Dynamics
Co. v. Carpenters Union, 347 F.2d 230 (C.A. 2).
61 See Appendix A.
61 J. I. Case v. N.L.R.B.. 321 U.S. 332, 336.
63 Cf. John Wiley e- Sons v. Livingston, cited immediately below.
°} See International Telephone and Telegraph Corporation v. Local 400, International
Union of Electrical, Radio and Machine Workers, APL-CIO, et al., 248 F.Supp. 949
(U.S.D.C.).
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
analogy, it would appear that Local 229, not being a party to the contract between
its sister Local 869 and the Company (which is agreeable to arbitration) should
offer no serious obstacle under the circumstances here present.
In the context in which this case arose, the two ice cream drivers' units at both
the Scranton and Wilkes-Barre plants are, in its legal incidence, one unit for pur-
poses of seniority, as it is not too unreasonable to assume, in view of both sister
unions' salient and pertinent contract provisions with the Company being identical
that the representatives of both the unions bargained as a unit in negotiating their
contracts with the Company. If this predicate is correct, then insofar as Local 869,
the Wilkes-Barre union is concerned, it is a party also and the quid pro quo is the
Wilkes-Bane union's inchoate and correlative right, if any of its members should be
laid off in a reduction-in-force in the event of a consolidation with the Scranton
plant, to dovetail such members into the seniority roster of its sister Local 229,
the Scranton union. Moreover, both are constituents also of Joint Council 53, so
that both locals would be bound by any award issued under the identical arbitration
provisions which are in both contracts that these sister unions have with the
Company.
In arriving at this conclusion, its basis need not be restricted to the contract
provisions, themselves, but, the elucidating background of what transpired before
the Joint Council refused to entertain jurisdiction, may be considered.65 And this is
so notwithstanding the Joint Council's assertion that article XV, section 4(a) of
the International's constitution, precluded it from deciding Local 229's appeal, on
behalf of its three members, the alleged discriminatees, of their seniority and dove-
tailing rights vis-a-vis its constituent member Local 869. This section provides as
follows:
Judicial Power
Section 4(a). Joint Councils shall have full power to adjust all questions of
jurisdiction between Local Unions, subject to the provisions of Article XII,
Section 12, to try cases against Local Unions, cases appealed from Local
Unions, appeals by members, and to try individual cases which Local Unions
refuse or neglect to try in accordance with the trial procedure provided for in
Article XIX.
The Council's bare assertion that this provision does not cover the situation pre-
sented in this case does not make it so. An examination of section 4(a) reveals that
the Joint Council's efforts to invoke a defense of lack of jurisdiction is specious and
must fall in view of the plain and unambiguous language of this section of the Inter-
national's constitution. Corroborative of this conclusion is the General Counsel's
admission that "nothing prevented" the Joint Council from settling this dispute
between Locals 229 and 869. Indeed, the record reveals that Local 869's counsel
appears to tacitly imply that ultimately the Joint Council could "determine" the
grievance of the alleged discriminatees, the three members of Local 229.66
If not dispositive, at least persuasive of the conclusions reached above, is the
case of Carpenters Local 1102, Carpenters District Council of Detroit, Detroit
Building and Construction Trades Council, 154 NLRB 513. The Board in that case
approved a settlement agreement in a jurisdictional dispute between the Carpenters
union and a Riggers local, and also quashed a notice of hearing. The settlement
agreement provided that the respondents were not entitled to strike to force the
employer to assign the work of erection and installation of machinery and equip-
ment at a particular plant to employees which it represented rather than to employ-
ees who were members of the Riggers. Approval of the settlement agreement was
opposed, the contention being that it was too limited in scope. It was argued that
the parties had agreed that the Board should make a jurisdictional award extending
beyond the precise dispute at the particular plant involved and, thus, the settlement
agreement was insufficient as it covered only the one plant and not all plants of
the employer.
Deciding not to make an award "at this tune," the Board noted that since both
unions were members of the Building and Construction Trades Department, AFL-
CIO, the National Joint Board for the Settlement of Jurisdictional Disputes should
a1 Proctor Hanv factoring Corp., 131 NLRB 1166, 7.160.
6 Cf. Green V. Los Angeles Stereotypers Union No. 5S, International Stereotypers Union
of North America and Hearst Publishing Company, Inc., 356 F .2d 473 (C.A. 10), where the
International's executive board mediated a dispute between its members regarding dove-
tailing of two seniority lists. See pages 173, 177, and 200 of transcript.
WOODLAWN FARM DAIRY CO. 75
be given an opportunity to resolve this dispute on a voluntary basis. In so ruling,
the Board stated: "If we were to make a determination which extended beyond the
[particular plant involved], we would be undercutting the new Joint Board at the
very beginning of its operations and lessening its chances of success. The Board,
employers, unions, and the public all have something to be gained by the successful
operation of a voluntary system for the settlement of jurisdictional disputes. The
Board, unions, and employers generally will save many times over the money
expended on the hearing in this case if the new Joint Board will satisfactorily
resolve, and therefore make unnecessary the submission of, even a small proportion
of the jurisdictional dispute cases that would otherwise come before the Board."
Thus, by analogy, where an unfair labor practice charge is filed with the Board
but an arbitration procedure is available to resolve the issue, it would seem that
the charge should neither be processed nor dismissed but held in abeyance pend-
ing recourse to the arbitration provisions of the contract. If the arbitration proceed-
ings are fair and regular and the award not repugnant to the purposes of the Act,67
the Board could dismiss the pending unfair labor practice charge. If not, the Board
could then entertain jurisdiction of the case. Thus, the national policy to promote
the resolution of labor disputes by recourse to arbitrators would be fostered with-
out forfeiting the basic rights the Act was designed to protect. In fact, the Board
appears to have followed this course in Dubo Manufacturing Company, footnote
46, supra.
It is true that the Company's involuntary accession to Local 869's interpretation
of article 11 is no defense but it must also be recognized that caught, as it was, in
a dispute between Locals 869 . and 229, which represented its employees at both
the Wilkes-Barre and Scranton plants, that its refusal at Local 869's insistence, not
to dovetail the alleged discriminatees, should not be held to be a per se violation
of Section 8(a)(3), under the circumstances delineated above, in the absence of
any independent evidence of a motive on the part of the Company to assist either
union or to encourage or discourage membership in either union. On the contrary,
there is undisputed testimony that the Company favored granting the Scranton
transferees the right to compute the time they were employed at the Scranton plant
in determining their seniority for the purpose of bidding for the three Scranton ice
cream routes transferred to Wilkes-Barre. Nor is it too unreasonable to conclude
that a violation cannot be predicated upon the effort of the Company to comply
with what it reasonably believed was a tenable claim by Local 869 that article 11
did not require it to accord dovetailing rights to the three Scranton transferees in
view of its experience in 1960 when the same issue was involved in that arbitration
proceeding. See Appendix A. Moreover, the discharges in this case resulted from
an interpretation of article 11 of the contract and not from an unfair labor practice
since the conduct of the Respondents did not prevent, discourage, or interfere with
the organizing and collective-bargaining activities of the dischargees.
Under all the circumstances of this case, including the good-faith interpretation
of article 11, the availability of grievance and arbitration machinery to which there
is no indication the parties were unwilling to proceed, the acknowledgement of the
parties that at the threshold there exists a question of contract interpretation, which
does not involve a construction of statutory rights regarding questions of public
interest,68 the patent reluctance of the Joint Council to be drawn into the civil
strife of its two constituent Locals, although it is obvious it could have settled this
matter, and there being no serious obstacle to an amicable resolution of the dispute
through the arbitration provisions,69 impels the conclusion that it would not effect-
uate the policies of the Act to expend the considerable time required by entertaining
jurisdiction under the circumstances present in this type of proceeding,70 when
there is available the speedy processes of both the Joint Council and the arbitration
machinery which provide a more efficacious solution to this dispute than the delays
of an unfair labor practice proceeding. Crescent Bed Company, 157 NLRB 296.
67 Spielberg Mfg. Co., 112 NLRB 1080.
69 See Thor Power Tool Co., 148 NLRB 1379 at 1389.
66 The record shows that the Company would abide by any decision of the Joint Council.
m0 Chairman McCulloch has had occasion recently to emphasize the swelling volume of
the Board's increasing caseload and its capacity to entertain jurisdiction of certain cate-
gories of cases, stating the Board's caseload has doubled in the past eight years. Address
delivered on October 28, 1965, at 43d Annual Conference of Texas Industry (60 LRR 145).
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Accordingly , it is recommended that the complaint be dismissed.71
71 The Supreme Court recently held in Republic Steel Corp . v. Maddox , 379 U.S. 650,
that a discharged employee must first use the grievance procedure before he may initiate a
Taft -Hartley Act Section 301 action against the employer and union for breach of contract.
The Fourth Circuit in Walker v. Southern RR., 237 F.Supp . 278 reversing and remanding
385 U . S. 196, in construing Maddox, held there must be an exhaustion of remedies first
under the collective -bargaining agreement before recourse may be had to the courts. And
in Carey v . Westinghouse Corp ., 375 U.S. 261 , 268, the Court stated that the existence of
a remedy before the Board for an unfair labor practice does not bar individual employees
from seeking damages for breach of a collective bargaining agreement in a state court . . .
and that a suit either in the federal courts , as provided by 1 301 ( a) of the Labor Manage-
ment Relations Act of 1947 . . . Textile Workers v. Lincoln Mills, 353 U.S . 448, or before
such State tribunals as are authorized to act ( Dowd Box Co . v. Courtney , 368 U . S. 502 ;
Teamsters v. Lucas Flour Co., 369 U.S. 95 ) is proper , even though an alternative remedy
before the Board is available . . . .
APPENDIX A
IN ARBITRATION
Local No. 869, Milk and Ice Cream Drivers
Union, International Brotherhood of Before
Teamsters , Chauffeurs , Warehousemen
and Helpers of America Alexander H. Frey
and Arbitrator
Foremost Dairies, Inc.
At the arbitration hearing, which was held at the office of the arbitrator on Novem-
ber 4 , 1960, the case was presented for the Union by Edward Davis, Esq., its attorney,
and Leon J. Decker, a Director of the Eastern Conference of the Teamsters ' Union,
Washington , D.C., and for the company by Frederick W. Brown, Director of Labor
Relations.
The Issue
At the hearing the parties mutually agreed that in these proceedings only one issue
was being submitted to arbitration . They also jointly agreed upon the following
formulation of the issue drafted by the company 's representative : "Should the Com-
pany, in transferring employees from the Wilkes-Barre , Pa. Milk Plant to the Scranton,
Pa. Milk Plant of Foremost Dairies, transfer in accordance with departmental or
overall seniority?"
The facts
The company has a plant in Wilkes-Barre where it recognizes Local 869 as the
collective bargaining agent for enumerated classifications of employees in the Wilkes-
Barre plant . The company also has a plant in Scranton where it recognizes General
Drivers and Helpers Local No. 229 ( affiliated with the Teamsters ' Union) as the
collective -bargaining agent for enumerated classifications of employees in the Scran-
ton plant. The two plants are about eighteen miles apart.
Article 4 of the Wilkes -Barre Agreement between the above-captioned parties to
these arbitration proceedings reads in part as follows:
In reducing the number of employees in any department , the Employer agrees
that as among employees in such department , and having the same or substan-
tially similar jobs, the Steward shall be the last to be laid off, but seniority shall
prevail in lay-offs. It is further agreed that qualifications of employees shall be
a factor in determining order of lay -offs. Employees laid off in one department
shall be given preference for vacancies in another department , if qualified.
For the purpose of this Article , and Articles 8 and 10, the following shall be
considered different departments.
1. Sales Department employees , as outlined in Schedule "A."
2. Maintenance Department employees.
3. All other departments.
For Maintenance Department Employees , and for all employees hired sub-
sequent to October 15 , 1959, departmental seniority shall be observed at all
WOODLAWN FARM DAIRY CO. 77
times. For all other employees who were hired prior to October 15, 1959, depart-
mental seniority shall be observed except that each such employee shall be
allowed two (2) interdepartmental bids. That is, an employee in the Sales
Department hired prior to October 15, 1959, may bid for a vacancy in the Plant.
At a later date, subject to the rules and regulations covering the same, he may
bid back into the Sales Department. After this second bid he will be permanently
a part of the Sales Department and may bid in that department only.
The first paragraph of Article 8 of the Wilkes-Barre Agreement reads as follows:
"In the case of any vacancy in a job falling within any classifications covered
by this Agreement, Employer agrees to post notices of the existence of the same
at least five (5) days prior to filling such vacancy, and to accept applications
from employees within such period. Preference in filling vacancies shall go to the
employees on the basis of length of service, provided they have sufficient ability
and physical fitness, to be determined jointly by the Union's Business Representa-
tive and the Employer. In connection with any vacancy there shall be two (2)
opportunities to bid. That is, the route or job of the employee filling the vacancy
shall, if continued, also be posted for bid. Newly created jobs or vacancies may
be filled for the five (5) day period without reference to seniority."
Article 10 of the Wilkes-Barre Agreement reads as follows:
"When two or more branches or plants of Employer are consolidated, or when
Employer acquires a branch or plant or any part thereof and consolidates it
with his own, then the seniority list of both branches or plants so consolidated
shall be combined by departments and made operative as if they were one with
respect to members of the Union. When the business so acquired has non-union
employees, but they apply for membership in the Union, their applications shall
be accepted by the Union.
The Wilkes-Barre Agreement went into effect on October 16, 1959; its termination
date is October 15, 1962.
Prior to August 7, 1960, the company engaged in milk-processing and milk distribut-
ing at both the Wilkes-Barre plant and the Scranton plant. On or about August 7,
1960, the company ceased to do milk-processing at Wilkes-Barre, and concentrated
milk-processing in the Scranton plant.
The transfer of the Wilkes-Barre milk processing from Wilkes-Barre to Scranton
resulted in an excess of employees at the Wilkes-Barre plant and a shortage at the
Scranton plant. To save the surplus Wilkes-Barre employees from unemployment and
to fill the need at Scranton, the company began to transfer the most junior employees
at Wilkes-Barre to Scranton as rapidly as they could be absorbed.
Joseph Paulina is employed by the company in the classification of Vacation and
Emergency Relief Route Driver-Salesmen. His seniority dates from March 7, 1945.
On August 7, 1960, the company transferred the following inside men from Wilkes-
Barre to Scranton: Monahan, hired June 17, 1946, Moosic, hired June 5, 1945,
Roberts, hired June 1, 1945 and Mack, hired April 20, 1945. On August 15, 1960,
it transferred Giampietro, hired April 10, 1945 and Hess, hired February 2, 1945.
All of these men except the last one, Hess, had less seniority than Paulina. The union
claims that when Paulina became the most junior employee remaining at the Wilkes-
Barre plant he became entitled to be the next transferred to Scranton. Six other men
with more Wilkes-Barre seniority than Paulina had been transferred to Scranton.
They are Salansky, hired January 22, 1945, Casterline, hired January 6, 1945, Wojtas,
hired November 13, 1944, Frantz, hired November 11, 1944, Farley, hired Septem-
ber 4, 1944 and Borden, hired February 21, 1944. The transferees are all inside men.
There are three other Wilkes-Barre drivers, in addition to Paulina, who have less
seniority than some of the transferees, and who have not been offered a transfer.
Since being transferred, Monahan and Moosic have been laid off at Scranton, and at
the time of the hearing the next two, Roberts and Mack, were in process of being
laid off. Before laying off Monahan and Moosic at Scranton the company had first
laid off two Scranton employees (non-transferees) who had been employed by the
company for a shorter period than Monahan and Moosic, but Local 229 protested
that this was a violation of its Agreement with the company, and Monahan and
Moosic were thereupon laid off instead of the others.
Discussion
The most important fact in this case is that, for collective-bargaining purposes, the
Wilkes-Barre plant and the Scranton plant are separate bargaining units and each is
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by a different local union. Consequently, the collective-bargaining agree-
ments that emerged from the negotiations at each plant are as independent of each
other as if the plants were separately incorporated.
A second important point is that seniority is strictly a contractual concept. Length
of service with a given employer is a matter of fact, but length of service creates no
rights except those established by contract. Unless bound by contract, the employer is
under no obligation to accept length of service as a factor in layoffs, promotions,
vacations, etc.; and if by mutual agreement length of service does become a significant
factor, the only "seniority list" that can emerge is that which conforms strictly to the
provisions in the contract negotiated by employer and union. Seniority is not an
abstract subject. In order to ascertain the seniority rights of an employee, or a group
of employees, it is necessary to ascertain (1) what are the specific provisions as to
seniority that the parties wrote into their agreement, i.e. department, plant-wide,
company-wide, exceptions, etc.; (2) what is the bargaining unit, the aggregate of
jobs, to which these seniority provisions apply, and (3) is the employee within this
bargaining unit, i.e. is his job one of the jobs included in the bargaining unit?
The union makes much of Article 10 of the Agreement, and appears to believe
that this article gives the employees, who prior to August 7, 1960, did milk-processing
at the Wilkes-Barre plant, some seniority status with respect to work in the Scranton
plant. But, as explained above, this is impossible. Article 1 of the Agreement makes
it perfectly clear that the bargaining unit consists of the job classifications in Schedule
"A" and that the Agreement affects only those who are employed in those jobs in the
Wilkes-Bane plant. It is true that article 10 states that "when two or more branches
or plants of Employer are consolidated , then the seniority list of both branches
or plants so consolidated shall be combined by departments and made operative as
if they were one with respect to members of the Union. But the agreement between
Local 869 and. the employer cannot create seniority rights in the Scranton plant, a
separate bargaining unit, unless the Scranton agreement has an exact counterpart of
article 10, so that there would be in effect a tripartite agreement concerning consolida-
tion. Article 10 in the Scranton contract, far from duplicating its Wilkes-Barre counter-
part, expressly provides that the dovetailing of seniority in the event of a consolidation
shall be confined to those who are already members of Local 229, and that such mem-
bers shall have super-seniority over all other members. Hence, article 10 of the
Wilkes-Barre agreement can lawfully operate only with respect to the consolidation of
two or more branches or plants that are within the jurisdiction of Local No.'869.
Moreover, article 10 is by its express language confined to the "Union," and in the
opening paragraph of the agreement, page 5, it is categorically stated that the word.
"Union" thereafter refers to Local 869.
By its reference to Article 8, quoted above, the union seems to contend that when
additional milk-processing jobs were created at the Scranton plant, they constituted
"vacancies" to which the terms of article 8 were applicable. But article 8 by its terms
applies only to a vacancy "in a job falling within any classification covered by this
Agreement," and vacancies in the Scranton plant are not covered by the Wilkes-
Barre agreement. The termination of milk-processing at Wilkes-Barre eliminated jobs
but did not create vacancies at Wilkes-Barre, and hence article 8 is inapplicable.
Article 4 of the current contract modified the previous agreement by establishing
for seniority purposes three departments, Sales, Maintenance, and all others, in place
of the two departments, Maintenance and all others, theretofore existing. But the
1959 agreement was in effect at the time of the shift of milk-processing operations
from Wilkes-Barre to Scranton, and accordingly the employer and the union were
bound by its terms in carrying out the changes necessited [sic] by this shift of opera-
tions. The milk-processing employees were in the third ("all others") department, and
in reducing the number of these employees, the employer properly carried this out on
a departmental basis in inverse order of length of service, i.e. the most junior em-
ployees in the department laid off first. Even as to employees hired prior to Octo-
ber 15, 1959, article 4 provides that departmental seniority shall be followed in mak-
ing a reduction in work force, and only after an employee has been laid off ("each
such employee") does he acquire the right to two inter-departmental bids.
The statement of issue, as agreed to by the parties at the hearing speaks of "trans-
ferring" employees from the Wilkes-Barre plant to the Scranton plant. I assume that
by "transfer" the parties mean the total process whereby a Wilkes-Barre milk proc-
essing employee is laid off pursuant to the terms of the Wilkes-Barre agreement, and
then offered employment at the Scranton plant. If he is hired into the Scranton plant,
he then comes within the jurisdiction of Local 229 as his bargaining agent, and subject
WOODLAWN FARM DAIRY CO. 79
to the terms of the contract between Local 229 and the employer. My authority in
this case is confined within the four corners of the agreement between Local 869 and
Foremost Dairies. [Hence, all that I am authorized to decide is whether or not in
reducing the number of employees in the third department at the Wilkes-Barre plant,
the company properly carried out the requirements of its contract with Local 869.]
That it did do. There is nothing in the contract that gives to an employee laid off in
Wilkes-Barre a right to be transferred to Scranton, although there is certainly a moral
obligation upon the employer to offer employees displaced at Wilkes-Barre the first
opportunity to fill new jobs created thereby in Scranton. If an employee transfers
from Wilkes-Barre to Scranton, it is desirable that, as to vacations and and other
fringe benefits, the employer should treat the employee's length of service at Wilkes-
Barre as if it had developed at Scranton. This takes nothing away from the other
Scranton employees, and it is not a contract violation for an employer to follow
fringe benefits in excess of those required by the applicable contract, so long as he
does not act discriminatorily.
The shift of milk-processing from Wilkes-Barre to Scranton did not result in a
reduction of the number of employees in Paulina's department, i.e. department 1, the
Sales Department. Since the reduction of employees was correctly done by the em-
ployer on a departmental basis, Paulina had no right to be laid off, and he certainly
has no right to be offered a job in a different department in the Scranton plant.
Award
In transferring employees from its Wilkes-Barre Milk Plant to its Scranton Milk
Plant, the employer properly applied the provisions for departmental, and not overall,
seniority in accordance with its agreement with Local 869, and the union's claim on
behalf of Joseph Paulina is denied.
November 17, 1960 Alexander H. Frey
ALEXANDER H. FREY,
Arbitrator.
APPENDIX B
June 11, 1965
Mr. Martin Piepoli
Business Representative
Milk Drivers and Dairy Employees
Local Union #229, Affiliate of International
Brotherhood of Chauffeurs, Warehousemen and
Helpers of America
602 Linden Street
Ad-Lin Building, Room 200
Scranton, Pennsylvania
Dear Mr. Piepoli:
This is to confirm the results of the meeting of June 9, 1965 attended by representa-
tives of the Company and your Union. At that meeting, we informed your representa-
tive of our intention to close the Scranton ice cream branch effective Saturday, June 19,
1965 and transfer the drivers to our Wilkes-Barre plant.
It was understood that the drivers will be in the Wilkes-Barre bargaining unit, and
will be covered by the existing labor agreement with Local 869.
We have been advised by Local 869 that it will insist that any employee transferred
to Wilkes-Barre from Scranton be placed at the bottom of the seniority list. The
Local's position is that the contract requires this and, unless we carry out the pro-
visions of the contract, there will be a work stoppage. If Local 869 maintains that
position, we shall have no choice but to place the transferred drivers at the bottom
of the seniority list in Wilkes-Barre. We will, as we agreed, continue to use Company
seniority for purposes of fringe benefits, such as vacations and holidays.
Very truly yours,
H. G. Shuster,
Personnel Director.
CC: Mr. J. Maher
CC: Mr. K. F. Schmidt
Mr. S. C. Jayne
Mr. E. B. Nordell
Mr. R. F. Newcomer
Mr. J. W. Pelino (File)