Freezer Queen Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 638 (N.L.R.B. 1974)

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freezer Queen Foods , Inc. and Gerald Kleparek
Local 2000A , International Longshoremen 's Associa-
tion, AFL -CIO and Gerald Kleparek, Cases
3-CA-5543 and 3 -CB-2232
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On June 21, 1974, Administrative Law Judge Sidney
Sherman issued the attached Decision in this proceed-
ing. Thereafter, General Counsel and both Respond-
ents filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the attached Decision in
light of the exceptions and briefs, and has decided to
affirm the rulings, findings,[ and conclusions of the
Administrative Law Judge only to the extent consistent
herewith.
We agree with the Administrative Law Judge's dis-
missal of the complaint insofar as it charges Local
2000A, International Longshoremen's Association,
AFL-CIO (hereinafter the Union), with violation of
Section 8(b)(1)(A) of the Act for its removal of Charg-
ing Party Gerald Kleparek from his steward position.
However, citing Cameron Iron Works, Inc.,' as au-
thority, the Administrative Law Judge found that the
disputed provision3 in the December 27, 1973, Memo-
randum of Understanding between Freezer Queen
Foods, Inc. (hereinafter the Employer), and the Union
violated Section 8(a)(3) and (1) and Section 8(b)(2) and
(1)(A) of the Act. It was his conclusion that this provi-
sion limited the opportunities for promotion of stew-
ards and union officers and thereby established a dis-
criminatory condition of employment. We disagree
with this conclusion and accordingly shall dismiss the
complaint in its entirety.
The record reveals the following sequence of events.
The Employer, a manufacturer and distributor of
frozen foods, had a collective-bargaining agreement
with the Union which was due to expire on October 3,
1973. In the course of negotiating a new contract the
Employer and the Union, on October 3, exchanged the
i As the record, exceptions and briefs adequately present the issues and
the positions of the parties, the request for oral argument by Respondent
Freezer Queen Foods, Inc , is hereby denied
2 194 NLRB 168 (1971)
3 The provision reads "It is agreed that an employee may not serve as a
Lead Person and a Union Steward or Officer of the Union at the same time "
view that it was undesirable for leadmen to serve as
union stewards. After a 5-day strike which ended on
October 5, agreement was reached on a new contract.
In addition, a Memorandum of Understanding was
drafted in which, among other things, a description of
the leadperson function was included. Because the
draft of the contract subsequently delivered to the
Union by the Employer did not include what the Union
hoped would be a written statement reflecting the ex-
change of views between the Employer and the Union
with regard to the undesirability of combining lead-
man-steward functions, a later Memorandum of Un-
derstanding was agreed to on December 27 which in-
cluded the disputed provision. Subsequently, the
Employer and the Union arranged for publication of
the Memorandum of Understanding. However, no re-
vised draft was formally executed by the parties.
In June 1972, Kleparek was first appointed to a lead-
man position. At this time he also held the position of
union steward. Towards the end of November 1972
Kleparek was called in by supervisors to discuss com-
plaints stemming from his use of company time to.per-
form his union duties. Because his job performance did
not improve, Kleparek was demoted on December 5,
1972.
The October 5, 1973, contract between the Employer
and the Union for the first time provided for a bidding
procedure for the leadperson position whereby, at the
time of a permanent opening, an employee with the
greatest seniority could bid for the job opening. Klepa-
rek bid into a leadman position and was assigned to
that position effective December 26, 1973. The Com-
pany was orally advised on December 26, 1973, by
Union Business Agent Pool, that Kleparek had been
removed as a steward. On January 18, 1974, around the
time the December 27, 1973, Memorandum of Under-
standing was distributed to the Union's members, the
instant charge was filed by Kleparek, whereupon the
Employer refused to sign the Memorandum of Under-
standing during the pendency of the charge.
While we agree with the Administrative Law Judge
that the Employer and the Union in fact agreed to the
prohibition against leadmen serving as stewards on
December 27, 1973, we disagree with his reliance on
Cameron, supra, to find 8(a)(3) and (1) and 8(b)(2) and
(1)(A) violations of the Act.' We agree with the Em-
ployer's view, as asserted in its brief, that the instant
case is closer to Warner Gear Division of Borg- Warner
Corporation, 102 NLRB 1223 (1953), which was nar-
rowed but not overruled by Cameron.
Cameron arose from a situation in which a leadman-
Board Member Kennedy would find, in any event, in accordance with
his dissent in Cameron, supra, that the provision in dispute, whether or not
actually adopted by the parties in the written Memorandum of Understand-
ing, would be lawful in the circumstances presented by this case
215 NLRB No. 107
FREEZER QUEEN FOODS, INC. 639
steward was advised by his employer that his union
activities were taking too much time and reducing his
efficiency , and that consequently he must choose be-
tween being a leadman and a steward or face demotion.
The Board found in Cameron that, in the absence of
any efforts by the employer to seek with the union
alternative solutions to the problem , the employer
could not arbitrarily restrict the rights of the employees
and their union to be represented by the man of their
choice . Adopting the decision of the Trial Examiner
(now known as Administrative Law Judge), the Board
found that the employer violated Section 8(a)(1) of the
Act.
On the other hand , Warner Gear Division, supra,
arose from the company 's denial of a union steward's
promotion to a bench inspector position . The Board
agreed with the Trial Examiner that the complaint
charging a violation of Section 8(a)(3) and ( 1) should
be dismissed . Unlike Cameron, where there were no
contractual requirements as to the use of company time
for union business , there were contractual guarantees
in Warner Gear Division providing reasonable time off
for stewards to perform their union duties. In the ab-
sence of union animus , the Board found that the em-
ployer 's desire for its employees to devote all of their
production time to their work was a lawful policy,
basing this finding on the conclusion that employees do
not have a Section 7 right to engage in union activities
on company time . Such a right would arise , if at all,
from the contract.
In the instant case the General Counsel stipulated as
to the Employer 's lack of union animus. Nevertheless,
the Administrative Law Judge concluded that the
provision prohibiting leadmen from serving as stewards
is on its face unlawful interference with the employees'
Section 7 rights because it is a discriminatory condition
of employment. However , we find such an interpreta-
tion of the Act to be in conflict with the Board's policy
in Cameron where , although the Board found a viola-
tion of the Act, it ruled against a finding that restric-
tions on the leadman-steward function are per se in-
valid:
In Warner, the Examiner concluded that there
was no room for seeking an accommodation be-
tween these interests because of the contractual
commitment . Here we think that room existed,
particualarly in light of the absence of such a'con-
tractual commitment.
It will be apparent from this discussion that we
feel constrained to give narrow application to the
holding of Warner Gear. Employees ' statutory
rights should not be diluted in the absence of com-
pelling evidence that other considerations require
such limitations. Even then , only such limitations
as appear to be reasonable and necessary to ac-
commodate those considerations can be
permitted .' [Emphasis supplied.]
We find that such "compelling evidence" of legitimate
considerations justify the restrictions attacked here.
Here the employer did not arbitrarily restrict the
right of the employees and their Union to be repre-
sented by the person of their choice . The agreement was
urged by the Union and was the subject of lengthy
negotiations . The Union demanded representation dur-
ing working hours consonant with past plant practice,
and since the Employer required that a leadperson con-
stantly be on the production line, the negotiations had
as their goal an end to the practice of leadmen serving
as stewards . Both parties were concerned with the di-
vided loyalty of such a dual -function employee.
The record shows that leadmen are required to have
superior attendance and to pay constant attention to
their duties , because the leadman position is the most
critical bargaining unit job . Leadmen must report for
work 45 minutes earlier than the rest of the crew on
their shifts in order to secure necessary supplies and
prepare the production line for operation . The leadman
must constantly maintain supplies on the line in order
to prevent production from going down , and must take
care of emergencies and be on the scene to relieve his
supervisor so that the latter may perform other duties.
In most cases the foremen supervise more than one
production line, and hence when the foreman is needed
to attend to one line he will have to leave another line
in the care of the leadman . The impracticality of such
a leadman being permitted to function as a union stew-
ard is exemplified by the Employer 's demotion of
Kleparek on December 5, 1972 , over a year before
adoption of the leadman -steward provision . The Em-
ployer's action was based on Kleparek 's diminished
efficiency as leadman due to the incompatible time re-
quirements of his steward office . It was these legitimate
business requirements which motivated the Employer
to agree to the disputed provision.
The parties also agreed upon the provision because
of a mutal concern about conflict of interest problems
if leadmen were to be permitted to serve as stewards in
this facility . About 40 percent of all individuals who
have held the position of leadman over the years have
been promoted out of the bargaining unit into line
supervisory positions . Indeed , for this reason the Em-
ployer initially resisted the Union 's demand that the
lead position be a bid job . Conflicts of interests were
foreseen in that the leadman -steward might be con-
strained from giving directions which he felt were ques-
tionable from the Union 's point of view , at a time when
he could be the only representative of management
5 194 NLRB 168
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present on the production line. Indeed, Kleparek testi-
fied that he would refuse to transmit a direction which
he considered contrary to the collective-bargaining
agreement. Since leadmen here were prime candidates
for supervisory positions, the Union regarded them as
management oriented.
Under all these circumstances, we are of the view
that the parties here were not precluded by law from
agreeing upon a prohibition of leadmen serving as stew-
ards.
Based on the foregoing, we find, contrary to the
Administrative Law Judge, that the Union did not vio-
late Section 8(b)(2) and (1)(A) of the Act and that the
Employer did not violate Section 8(a)(3) and (1) of the
Act. Accordingly, we shall dismiss the complaint in its
entirety.
Local 2000A, International Longshoremen 's Association,
AFL-CIO, hereinafter called the Union, is a labor organiza-
tion under the Act.
11 THE MERITS
The pleadings, as amended at the hearing, raise the follow-
ing issues:
1. Whether the Union violated 8(b)(2) and (1)(A) and the
Company violated Section 8(a)(3) and (1) by entering into,
maintaining, and enforcing an understanding that no em-
ployee might serve as a leadman and Union steward or officer
at the same time.
2. Whether the Union violated Section 8(b)(1)(A) by
removing Kleparek as union steward.
A. Sequence of Events
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
DECISION
SIDNEY SHERMAN: Administrative Law Judge: The original
charges herein were served on Respondents on January 18,
1974, the complaint issued on February 28, and the case was
heard on March 26 and 27. The issues litigated related to
alleged violations of Section 8(a)(3) and (1), and 8(b)(2) and
(1)(A), of the National Labor Relations Act, as amended,
through the imposition of certain restrictions on the commin-
gling of the functions of leadman and steward in the same
person
After the hearing briefs were filed by all parties.'
Upon the entire record,' the following findings and
recommendations are made:
I THE RESPONDENTS
Freezer Queen Foods, Inc., hereinafter called the Com-
pany, is a corporation under Delaware law and is engaged at
its plant in Buffalo, New York, in the processing and distribu-
tion of frozen food items. During 1973, the Company re-
ceived from out-of-state sources materials worth more than
$50,000 and shipped to out-of-state points products worth
more than that amount. The Company has been at all
material times engaged in commerce within the Act.
I On June 4, counsel met with me at my request in an effort to secure a
stipulation with regard to certain matters, which stipulation was later re-
ceived in evidence as Joint Exh 6 Thereafter, the General Counsel submit-
ted in writing comments with regard to some aspects of the case that were
discussed at the above meeting Counsel for Freezer Queen, by letter of June
7, objected to any consideration of the General Counsel's communication,
because it was in the nature of a supplemental brief This objection is sus-
tained and no weight has been given to the contents of that communication
2 For corrections of the record and certain evidentiary rulings, see Joint
Exh 5, and the orders of May 21 and June 11
The Union has had longstanding contractual relations with
Respondent. The contract unit comprises about 480 produc-
tion and maintenance employees, who work on three shifts.
They are serviced by eight union stewards. The various fore-
men scattered throughout the plant, who are admittedly
supervisors under the Act, are assisted by leadmen.3 Klepa-
rek served as a union steward on the second shift from
November 1971 to December 26, 1973. He served his first
stint as a leadman from March 1972 until his demotion from
that position in November 1972. He was restored to that post
on December 26, 1973, but was thereafter removed by the
Union as steward
The" instant charges were filed on January 18, 1974.
B Discussion
1. The deferral issue
A motion by the Company for deferral by the Board of the
instant controversy to arbitration under Collyer Insulated
Wire was denied at the hearing. That motion is renewed in
the Company's brief and is again denied.
The current contract between Respondents contains a
grievance procedure culminating in binding arbitration,'
and the alleged restriction against stewards functioning as
leadmen might be deemed to be a violation of article X of the
contract, which forbids discrimination, inter alia, because of
"any service rendered the Union or any office held in the
Union." However, it is clear that the other issue
herein-the legality of the Union's ouster of Kleparek as
steward-would not be grievable under that contract, since
it makes no provision for the filing of grievances against the
Union but only against the Company. As the arbitrator
would, therefore, have no power to settle the entire contro-
versy herein but could deal with only one of two interrelated
issues, deferral would not be appropriate for that reason
3 For simplicity, the masculine form is used herein rather than the more
neutral "leadperson" appearing in the record
4 192 NLRB 837 (1971)
5 Joint Exh 1, art Vii
FREEZER QUEEN FOODS, INC
alone.' Moreover, even as to the one issue that seems
arbitrable-the alleged agreement between the Company and
the Union to ban steward-leadmen-it is clear that the inter-
ests of the Union would be adverse to those of the grievant,
particularly as a finding for him on that issue would compro-
mise the Union's position on the ouster issue. Yet, the con-
tract requires that in a case such as this the Union represent
the grievant at every step of the grievance procedure and
participate in the selection of the arbitrator and that the latter
look to the Union (and the Company) for his compensation.
The Board's policy is not to defer to arbitration under such
circumstances.'
2. Was there a binding, contractual restriction?
The General Counsel contends that the Company violated
Section 8(a)(3) and (1) by entering into an understanding
with the Union, oral or written, that no employee would be
permitted to serve as leadman and'steward at the same time.
The Respondents present somewhat divergent defenses. The
Union's position is that there was such an understanding and
that Kleparek was removed as steward pursuant thereto but
that such understanding and removal was lawful. The Com-
pany, on the other hand, denies that there was any such
understanding, but agrees with the Union that it would, in
any event, be lawful.
As to the existence of the understanding, a synthesis of the
testimony of Respondents' witnesses and a stipulation re-
ceived in evidence8 show that in September and October
1973, there were negotiations for a contract to replace the one
expiring on October 1; that on October 3, in the course of
those negotiations the Company agreed for the first time to
permit employees to bid for the job of leadman and to award
that job to qualified employees on the basis of seniority; and
that in connection with a discussion of the pros and cons of
such a procedure the Union and the Company both expressed
the view at that time that the same individual should not act
simultaneously as leadman and steward because of the super-
visory or quasi-supervisory nature of the leadman's job and
the resulting conflict of interest; that agreement was reached
on the terms of a new contract on October 5; that at the same
time agreement was reached on a memorandum of under-
standing that dealt primarily with job descriptions, including
that of leadman;' that the typewritten draft of both agree-
ments, as prepared by counsel for the parties' signatures, did
not contain any restriction on leadman holding a union posi-
tion; that late in November both parties signed those drafts
without any reservations; that on or about December 24, the
printer's proofs of both documents were received by the par-
ties; that, in reviewing them, Sullivan, secretary-treasurer of
the Union, noted the absence of any restriction on leadmen
serving as stewards; that on or about December 27, he asked
for a meeting with the Company's director of industrial rela-
tions, Verostko, to discuss that matter, among others; that
such a meeting was held on December 27, which was at-
tended by Sullivan, Verostko, and Cooney, a vice president
6 Sheet Metal Workers' International Association, Local Union No 17,
AFL-CIO (George Koch Sons, Inc), 199 NLRB 166 (1972), Kevin Steel
Products, Inc, 209 NLRB 493, 494 (1974)
7 Kansas Meat Packers, a Division ofAristo Foods, Inc, 198 NLRB 543
(1972)
8 Joint Exh 6
641
of the Company; that at that meeting Sullivan took the posi-
tion that the restriction on dual service by leadmen had been
agreed to on October 3, and should have been included in the
signed documents and that the omission should now be
remedied; that, while disavowing any prior commitment on
the subject, the Company agreed to grant the Union's request;
that both parties then instructed the printer to produce a new
version of their memorandum of understanding, which in-
cluded the language demanded by the Union, but they did not
at that time formally execute any revised draft of that memo-
randum; that, when the Union thereafter asked it to sign a
new draft containing the agreed-upon revision, the Company
refused to do so;' that in the meantime, in mid-January, the
Union began to distribute to its members copies of the revised
memorandum;10- and that such printed copies contained the
following language, which had been added to the original
memorandum in the manner just described- "It is agreed that
an employee may not serve as a Lead Person and a Union
Steward or Officer of the Union at the same time "
On the basis of the above evidence, the General Counsel
contends, and the Union agrees, that as early as October 3,
there was a legally binding oral commitment by both Re-
spondents to bar stewards and Union officers from serving as
leadmen. However, the Company disagrees. While conceding
that the matter was discussed on October 3 during the
negotiations for' a new contract and that both it and the
Union expressed the opinion that the combining of those
functions in the same person was undesirable, the Company
denies that this was more than an exchange of views; and
Verostko testified without contradiction that during the
preparation by both counsel of the final drafts of the parties'
agreements he expressly rejected a request by the Union that
a restriction against steward -leadmen be reduced to writing,
on the ground that such restriction was an "internal union
affair."
In any case, even if there were an oral agreement on Octo-
ber 3, as the Union contends, it would not survive the subse-
quent execution of the written memorandum late in Novem-
ber. Under the parol evidence rule, a prior or
contemporaneous oral agreement may not alter the terms of
a written contract," and the Board has applied that rule in
refusing to permit a party to a written collective -bargaining
contract to vary the terms thereof by proving a contempo-
raneous, oral agreement or understanding." Any other rule
would result in the proliferation of litigation over the contents
of such contracts and put the Board squarely in the business
of writing or rewriting agreements on the basis of disputed
oral testimony and debatable credibility resolutions.
The language which the General Counsel here proposes to
add to Respondents' written commitments imposes a condi-
tion on the eligibility of an employee to serve as a leadman,
which condition is in addition to those specified in the origi-
v Such refusal was admittedly not because of any dispute over textual
matters but because of the pendency of the instant charge Since that charge
was filed on January 18, it is inferred that such refusal occurred soon
thereafter
10 G C Exh 2
11 American Jurisprudence, 2d ed , Vol 30, §1016, et seq
12 Oakey A Dahlberg and Ruth N Dahlberg, Co-Partners d/b/a Waialua
Dairy, 111 NLRB 1220, 1236-37 (1955), Seaboard Terminal and Refrigera-
tion Company, 114 NLRB 1391 (1955), Jersey Contracting Corp, 112
NLRB 660 (1955)
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nal memorandum of understanding, and to that extent alters
the terms thereof. Since the parol evidence rule precludes
giving legal effect to any such alteration, it follows that no
finding may be made on the basis of the events of October 3
that there was a binding agreement that the functions of a
leadman and steward or union officer might not be combined
in the same person."
There remains to be considered whether any such agree-
ment emerged from the meeting of December 27 and the
subsequent events related above.
The Company contends that these events did not result in
a legally binding commitment to bar leadmen from acting as
stewards or union officers However, there was admittedly on
December 27 an oral agreement on the subject which, stand-
ing alone, would be legally binding." Moreover, the oral
agreement was evidenced by a document, which was sent by
both parties to the printer, and which admittedly correctly set
forth the terms of the parties' oral agreement. It is true that
after that document had been printed and the Union had
already distributed copies to employees, a representative of
the Company refused to affix his handwritten signature
thereto, for reasons of expediency. However, signing by hand
is only one way of manifesting assent to the obligations set
forth in a wnting. Arranging for, and, in effect, authorizing
the distribution to third persons affected thereby of copies of
a document purporting to be a signed agreement is sufficient
proof of adoption of that agreement. In any event, even if
formal execution were required here, the Company, having
arranged with the Union to give currency to what purported
to be a copy of a duly executed contract, would be estopped
to deny that it had been so executed 15
It is concluded from the foregoing that, while both the
company representatives and the union negotiating commit-
tee as early as October 3 indicated that they did not favor
commingling the functions of leadman and steward, there
was no legally binding agreement on that point until Decem-
ber 27
3. Was the December 27 agreement unlawful?
It has been found that on December 27 Respondent en-
tered into a legally binding agreement that no employee
would be allowed to serve as leadman and union steward or
officer at the same time. The Company and Union contend
that there was nothing unlawful in such a provision. The
13 While there is an exception to the parol evidence rule, where a provision
sought to be added to a written contract was omitted through mutual mis-
take, that was not the case here Although Sullivan contended that the
omission here was an oversight, the record is clear that the omission was
deliberate on the part of the Company
14 Unlike the case of the alleged oral agreement on October 3, proof of
an oral agreement on December 27 would not be barred by the parol evi-
dence rule, since it postdated the execution of the collective-bargaining
contract and the memorandum of agreement That rule bars proof only of
an oral commitment made prior to, or contemporaneously with, the written
agreement it purports to modify
Moreover, as explained below, the instant oral agreement was eventually
reduced to writing in a form legally binding on Respondent
15 While there is no evidence that it distributed any of the printed copies
of the revised memorandum, the Company admittedly authorized the print-
ing of such copies and it was foreseeable that the Union, at least, would give
them general circulation, since, otherwise, there would have been no point
to having them printed
General Counsel, on the other hand, would equate such a
provision with one conditioning the hiring of job applicants
on union membership-that is, on foregoing their right not
to join a union, except as limited by Section 8(a)(3). There
seems to be merit in such an analogy. Here, promotion to
leadman or retention of employment as a leadman is condi-
tioned on foregoing the statutorily protected right to engage
in union activity as a steward or officer of the Union. In
Cameron Iron Work.S16 an employer was found to have vi-
olated Section 8(a)(1)" by requiring an employee to resign
as steward as a condition of retaining his job as leadman. In
the General Counsel's view, there is no sound reason to as-
sume that the Board would have reached a different result in
Cameron, if, instead of merely imposing that requirement on
a particular employee, the employer had, as here, imposed it
on all his employees.
The Company contends that the Cameron case is not appli-
cable here for various reasons, and that, in any event, no
finding of a violation of Section 8(a)(3) or (1) is proper.
In seeking to distinguish the Cameron case, the Company
argues that (1) here, the conduct challenged by the General
Counsel was not unilateral employer action, as in Cameron,
but bilateral action by both the Company and the Union; (2)
the situation with regard to the amount of working time
required to be spent by union stewards on union business is
different here than it was in Cameron; and (3) the commin-
gling in the same person of the functions of leadman and
steward gives rise to a potential conflict of interest (a matter
which was not specifically considered in Cameron) These
will be considered seriatim.
(a) The Union's role as a defense
By deferring to the Union's wishes, argues the Company,
it cannot be said to have interfered with the employees' "or-
ganizational rights", nor can it be said to have interfered with
their right to choose their own "representative," since that
term, as used in Section 7, denotes only labor organizations
themselves, and not the agents of such organizations. How-
ever, it is too late in the day to argue that the protection
afforded by Section 7 to employee involvement in "concerted
activities for the purpose of collective bargaining or other
mutual aid or protection" does not extend to the seeking or
holding of union office If that were so, an employer would
be free to discriminate against an employee because he was
a union agent or officer.
However, there seems to be implicit in the foregoing argu-
ment by the Company a contention that Section 7 does not
immunize employees against the imposition by their own
union of reasonable restrictions on their eligibility to hold a
union post, and that the instant provision was such a restric-
tion. The question whether a union is privileged to refuse to
permit leadmen to serve as stewards is a novel one and will
be considered at length at a later point in this Decision. Be
that as it may, it is well settled that, whatever latitude it may
have to regulate its internal affairs, a union may not, under
the guise of such regulation, interfere with the employment
16 194 NLRB 168 (1971), enfd 464 F 2d 609 (C A 5, 1972)
11 No violation of Sec 8(a)(3) was there alleged
FREEZER QUEEN FOODS, INC 643
relation." Here, both Respondents have extended any union
rule or policy that may be involved beyond any permissible
scope by incorporating it into a contract provision that limits
the opportunities for promotion of stewards and union offic-
ers.
(b) The time factor
The Company contends that Cameron is not controlling, in
any case, because of an alleged irreconcilable conflict between
the demands of his two jobs on the time of a leadman-stew-
ard.
In Cameron, the respondent also attempted to justify its
opposition to the leadman's serving as steward on the ground
that his job as leadman required that he devote full time to
his work and that his duties as union steward prevented him
from doing so.19 In rejecting that contention, the Board
majority stated:
... neither party explored with the other what solu-
tiotis were available-e g. whether Baker might have
been permitted to perform some union'functions during
working hours, perhaps more limited in scope and tim-
ing than would have been the case with a non-leadman,
or whether the Union might even agree to a total restric-
tion of Baker's stewardship duties during work time
because of the allegedly demanding nature of the lead-
man assignment . It surely is not inconceivable that some
mutually satisfactory arrangement could have been
worked out.
In the absence of such efforts, we agree with the Trial
Examiner that Respondent could not arbitrarily restrict
the right of the employees and their Union to be repre-
sented by the man they desired to have represent them
. . . In Warner,20 the Examiner concluded that there
was no room for accommodation between these interests
because of the contractual commitment Here we think
that room existed particularly in the light of the absence
of such a contractual commitment.
The Company contends that the situation here is distin-
guishable because the record shows not only that its leadmen
are required to devote full time to their duties but also that
the Union insists that they handle their union business during
working time and has indicated that it will not consent to any
"accommodation" such as was enjoined by the Board in
Cameron
The Company's director of industrial relations , Verostko,
testified that a leadman is expected to give all his working
time to his job because of his various responsibilities, which
make him a "key" employee, but, at a later point, he asserted
that every job in the plant was a "key" job. Yet, it is clear that
the Company had no objection to employees who were not
18 Scofield v NLR B, 394 US 423 (1969), NLR B v Allis-Chalmers
Mfg Co, 388 U S 175,195 (1967), TheBabcock & Wilcox Co, 110 NLRB
2116, 2132 (1954), enfd sub nom. International Brotherhood ofBo,lermak-
ers, etc, District No 2, 232 F 2d 393 (C A 2, 1956), NL R B v Phila-
delphia Iron Works, 211 F 2d 937, enfg 103 NLRB 596
19 In that case , as here , it was the practice of the steward to handle union
business during working time There was no contractual authority for such
practice, as there was in Warner Gear Division, 102 NLRB 1223, where the
Board reached a different result
20 See preceding fn
leadman serving as stewards and handling union business
during worktime, and it was admitted that such stewards
spent 2 to 3 hours a week on union business. While Kleparek
estimated that, when he was a steward, he devoted only 45
minutes to an hour per week to union business, Verostko
disputed this, asserting that the correct figure for Kleparek
was 5 to 6 hours a week However, the Company's production
superintendent, Tucker, acknowledged that he had no objec-
tion to Kleparek, as a leadman, performing the duties of a
steward during work hours, provided that, before leaving his
work station, he gave advance notice to his foreman so that
he could arrange for a temporary replacement, and provided
that this was not done during the first 45 minutes of shift,
when he was required to prepare the production line for
operation.21 Kleparek acknowledged that, as a steward, he
did in fact attend to union business at the beginning of his
shift rather than later in the day. Accordingly, it seems that
the time problem with respect to Kleparek could be resolved
simply by an arrangement whereby he would be required to
remain at work until after he had set up the production line,
and to give his foreman an opportunity to arrange for a
replacement before leaving his post for union business.22
Finally, it may be pointed out that the "time factor" de-
fense would not apply, in any case, to union officers, who are
also barred by the contract provision from serving as lead-
men There was no evidence nor contention that any of them
performed his union duties during working time
(c) The "conflict-of-interest" issue
One of the defenses pleaded in Respondents' answers to the
complaint is that, as a leadman, Kleparek was a statutory
supervisor. In that case, he would be precluded under Board
law from acting as a union representative. In an effort to
substantiate that defense, extensive testimony was adduced
concerning the duties of leadmen In addition, in their briefs,
Respondents contend that since, as the record shows, a lead-
man, whether or not a supervisor, is required to give orders
to employees with regard to their work assignments, to report
any misconduct on their part to his foreman, and to assist the
latter in various other ways in his direction of the work force,
such activities on his part may become the subject of a griev-
ance, which, if he were also a steward, he would be required
to process With regard to the latter contention, the General
Counsel aptly points out that auy such conflict may be a-
voided by the Union's assigning some other steward to handle
21 The leadman was required to report 45 minutes earlier than the rest of
the crew on his shift, to give him an opportunity to order the necessary
supplies and otherwise prepare the production line for operation
22 Although Sullivan declared at the hearing that the Union would not
agree to Kleparek's performing the duties of a steward outside of working
hours, as this might result in undue delay in handling a grievance, the record
affords no reason to believe that the Union would object to an arrangement
such as is outlined in the text, above, whereby Kleparek would be free to
handle a grievance at any time after the 45-minute "preparatory" period At
any rate, whether the Union would agree to a particular arrangement can
best be determined by putting the matter to the test of good-faith bargaining
and not on the basis of assertions by a representative of a respondent which
may or may not have been influenced by the exigencies of litigation More-
over, should the Union remain adamant and an impasse on the issue be
reached in negotiations, the Company would be free to institute unilaterally
its last offer on the subject
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that particular gnevance.23 Such a procedure would be con-
sistent with the spirit of accommodation enjoined by the
Board in Cameron. It is true that Kleparek asserted at the
hearing that as a leadman he would not transmit an order that
he believed to be violative of the Union's contract. However,
it is evident that he was referring at that point to his policy
with regard to transmitting orders during his current tenure
as leadman, when he was no longer a steward, and that this
policy was rooted in his allegiance to the Union as a member,
apart from any status he might enjoy as a steward. Thus, his
reluctance to abet a supposed contract violation is not a
problem that can be solved by precluding him from serving
as steward, but, if the occasion should arise, might more
appropriately be dealt with through the Company's discipli-
nary procedures as a failure to discharge his duties as lead-
man.
On the more basic issue of supervisory status, it may be
noted at the outset that the original memorandum of under-
standing executed by Respondents26 contained the following
description of the duties of leadmen:
Performs work requiring full knowledge of routine
and procedures, may be required to coordinate efforts of
other workers - work under direction of Supervisor with
a minimum of instruction.
Transmit (not originate) instructions, directions or
schedules of work required to others within bargaining
unit.
To assemble and write report on factual matters per-
taining to his/her area of work - to include counts,
weights of material and work requirements.
From written or verbal schedules, initiates calls for
and moves material or equipment to prepare and main-
tain the operation in his/her area of responsibility.
Communicates material and job requirements to ap-
propriate Supervisors and/or other Personnel as re-
quired to assist in assurance of continuity of operation
Maintains his/her work area in an orderly manner
May be required to handle special assignments of a
difficult or non -routine nature.
Perform any other activity as required
So far as the record shows, this was the only statement of
the leadman's functions issued by the Company or com-
municated to its supervisors. While the foregoing is not a
model of precision, it seems clear that, with regard to the
communication of any instructions, directions, or work as-
signments to others in the unit, a leadman is limited to trans-
mitting those which he receives from his foreman. In the face
of this official version of the limited, nondiscretionary nature
of a leadman's duties, it was incumbent upon Respondents to
put forward some evidence that the foregoing document does
not reflect the actual practice in the plant.
23 As noted above, there are eight stewards in the plant, none of whom,
according to Verostko's uncontradicted testimony, was assigned to service
any particular group of employees
Moreover, this contention would not justify the restriction against union
officers acting as leadmen, since they do not process grievances
24 Joint Exh 3
In the case of Kleparek, the only direct testimony with
regard to his duties as leadman was his own. His foreman,
Zale, did not testify and no explanation was offered for that
omission and, as might be expected, Kleparek's testimony
gave little support to Respondents' contention that his job
was that of a supervisor. According to such testimony, his
duties were limited to ordering supplies for the production
line based on posted instructions as to what products to run
on a particular day, transmitting to others verbal orders from
Zale relating to changes in production schedules, maintaining
production records, reporting absences to Zale, notifying him
of any shortage of supplies, and performing work on the
production line Kleparek added that, if an employee refused
to comply with an instruction relayed to him by the witness,
he would notify Zale but he would not otherwise report any
misconduct by an employee nor issue any reprimand; that he
had never been instructed to do so, that, if a machine breaks
down, he notifies the maintenance man of that fact but does
not give him any instructions regarding repairing the ma-
chine, that employees take work breaks in accordance with
a prearranged schedule, which they have devised themselves;
and that on days that Zale is absent he is replaced not by
Kleparek, but by another foreman.
The Company did adduce testimony by Wesselenyi, who
had been a leadman on the 5-ounce line for 11 months until
his promotion in 1970 to foreman, about his former duties as
leadman, and in the main his testimony on that point paral-
leled that of Kleparek.26
In any event, the critical question here is what a leadman's
duties were at the time of the adoption of the disputed provi-
sion on December 27, 1973. On that point the definition of
the leadman's job adopted by Respondents in their current
contract was entitled to more weight than any testimony
about what a particular leadman did in 1970.27 And, even if
it be assumed that the particular job occupied by Wesselenyi
in 1970 on the 5-ounce line has not changed since that time,
that would not warrant rejection of Kleparek's testimony
about what he did as a leadman on a different production
line,28 particularly as we are dealing with the question of the
extent to which there were deviations in actual practice from
a norm fixed by contract. Absent any evidence of any plant-
wide instructions on the subject,29 it must be assumed that
any such deviations would reflect the particular situation and
capabilities of each leadman. This was illustrated by Wes-
26 In its brief the Company points to testimony by Wesselenyi that as a
leadman he would call upon a mechanic to repair a machine or a cleanup
man to mop up a gravy spill, and would direct production workers to
reprocess defective products However, it does not appear that he had to use
any independent judgment in determining where, by whom, and how those
activities were to be performed Reference is also made to'his testimony that
as a leadman he reprimanded employees for misconduct and assigned over-
time However, he acknowledged that, if an employee ignored his repri-
mand, he had no authority to take any further action other than to report
the matter to the foreman, and that he could not require an employee to
work overtime but could only ask for volunteers
27'Although Wesselenyi and Production Superintendent Walters insisted
that since 1970 there had been no change in the leadman's job, it is signifi-
cant that the former acknowledged that, unlike the situation in 1970, lead-
men no longer substitute for foremen during their vacations, because there
were now "hardly any leadmen in the plant" who were qualified to take over
for a foreman
28 He worked on the 2-pound line
29 The record shows that there were in fact no such oral or written
instructions
FREEZER QUEEN FOODS, INC 645
selenyi 's further testimony that in his present job as the only
foreman on the second floor , which job involves supervision
of two widely separated production lines with the assistance
of but one leadman , the witness is required to leave that
leadman in charge of one line for considerable periods of time
while the witness is attending to the other one. Even if if be
assumed that this was sufficient to constitute that leadman,
and any others similarly situated , supervisors ,3t it would
have no relevance to the status of those leadmen , like Klepa-
rek, whose foreman did not have to cover so much
territory."
It follows that some, at least , of the Company 's leadmen
were not statutory supervisors and that , insofar as the con-
tractual provision here under attack conditioned their reten-
tion of their jobs on their refraining from certain types of
union activity , such provision established a discriminatory
condition of employment . It is, accordingly , found that, by
adopting such a provision , the Company violated Section
'8(a)(3) and ( 1) of the Act, and that , by causing the Company
to do so, the Union violated Section 8(b)(2) and (1)(A).
4. The removal of Kleparek
As already related, Kleparek had been a union steward
since November 1971, and had also served as leadman from
March to November 1972. In November 1973, pursuant to
the newly negotiated contract, he bid for reinstatement to the
position of leadman and on December 26 was awarded that
job The same day he was removed as steward by Union
Business Agent Pool 32 Since it has been found that it was
not until the next day that Respondents reached any legally
binding agreement barring stewards from acting as leadmen,
no violation by the Union in removing Kleparek may be
found, unless such removal may be deemed unlawful, in itself,
without reference to any contractual provision However, the
General Counsel litigated the case solely on the theory that
the Union violated Section 8(b)(1)(A) and (2) by the removal
of Kleparek, because it was thereby enforcing an unlawful
agreement, and in his brief the General Counsel still relies on
that ground. In view of this, it may well be questioned
30 The testimony of Barrett and Walters indicated that most of the fore-
men have responsibility for more than one line and that, while they are
attending to one line, the other is under direction of their leadman How-
ever, Barrett's testimony was that her leadman had this responsibility only
for a few hours a week and Walters' testimony indicates that in such cases
the leadman has previous instructions from the foreman as to what direc-
tions to give, and there was no evidence that in such cases the leadman does
anything more than follow a prescribed routine
31 Walters testified that the Company's third shift consists of a plantwide
cleanup operation by a crew of 25 men under a leadman and a foreman, and
that the leadman will move some of those men from job to job However,
Walters acknowledged that what jobs will be done during the shift is deter-
mined in advance in the course of a tour of the plant by the foreman and
the leadman Although the leadman directs the men assigned to him as to
what type of detergent and how much water to use, Walters did not say to
what extent he was using his own judgment or following a prescribed rou-
tine The latter would seem more likely, in view of the limitation in the
leadman's job description against originating orders It is found that the
night-shift leadman is not a supervisor
32 Verostko's testimony that on December 26, Pool notified him of that
action is credited Pool did not testify and the best that can be made of
Sullivan's rather confused testimony on this point is that he did not learn
of the removal until early in January, when he was told that the Company
had rejected a grievance filed by Kleparek because he had been removed as
steward
whether the issue of a union violation or any other theory was
sufficiently litigated. Had the Union been put on notice that
its right to remove Kleparek as a steward, apart from any
agreement with the Company, was in issue , the Union might
have presented a different defense.
In any case, even if adequate litigation of the issue be
assumed, I am not persuaded that the Union violated the Act
by the removal of Kleparek, considered apart from any con-
tractual provision. Nothing in the Act places any restriction
on the right of a Union to select or remove stewards, except
insofar as the exercise of that right may be deemed to impinge
on the guarantees of Section 7. That provision has been con-
strued by the Board to protect union stewards and officers
against reprisals by employers because of the manner of their
performance of the union duties and, as already noted, in
Cameron Iron Works, Inc., supra the Board held that an
employer violated Section 8(a)(1) by requiring that a union
steward resign that post as a condition of retaining his job as
leadman. There may be distilled from the foregoing the doc-
trine that Section 7 protects from any interference by an
employer the right of an employee to function as a union
steward. The issue here is to what extent that right was
protected against interference by the Union, absent any im-
pact on Kleparek's status as an employee of the Company In
a sense, every time a union removes a steward it is interfering
with his right to engage in union activities in that capacity.
However, in construing the proviso to Section 8(b)(1)(A)33
in the light of its legislative history, the Supreme Court has
distinguished between "internal" and "external" enforce-
ment of union rules, holding that "Congress did not propose
any limitations with respect to the internal affairs of unions,
aside from barring enforcement of a union' s internal regula-
tions to affect a member's employment status.""
In Scofield, supra the Court reaffirmed its holding in Allis-
Chalmers, supra that, while a union violated the Act by
causing an employer to discipline an employee for breach of
a union rule , the imposition of a fine by the union for the same
breach was permitted by the proviso to Section 8(b)(1)(A). In
this context, the Court cited Minneapolis Star and Tribune
Company, 109 NLRB 727 (1954), where the Board found a
violation of the Act by a union in causing an employer to
discriminate against an employee because he crossed a picket
line, but found no violation in the union's fining the employee
for the same conduct.
The Court then laid down the following guidelines for
testing the validity of an " internal" union rule:
. section 8(b)(1) leaves a union free to enforce a
properly adopted rule which reflects a legitimate union
interest, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against union
members who are free to leave the union and escape the
rule.
We will next consider whether those guidelines were met
here.
33 Sec 8 (b)(1)(A) makes it an unfair labor practice for a union to restrain
or coerce employees in the exercise of their Section 7 rights , but in a proviso
reserves the right of a union "to prescribe its own rules with respect to the
acquisition or retention of union membership "
31 NLR B. v. Allis-Chalmers Mfg. Co., supra Scofield v NLR B.,
supra
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Initially, it may be pointed out that here there were in-
volved two union rules. The first was a provision of the
Union's constitution giving its business agents unlimited dis-
cretion with regard- to the "appointment and removal of shop
stewards."35
The second rule here involved is a provision of the Union's
international constitution, which precludes anyone employed
in a "supervisory job" from holding any "office" in a local
union. While the Union's own constitution does not expressly
include stewards in the roster of "officer," Sullivan, the
Union's secretary-treasurer, testified that the term "office" as
used in the foregoing constitutional provision has been his-
torically interpreted as including the office of steward As for
the meaning of "supervisory jobs," Sullivan-maintained that
that term has traditionally been deemed to denote not only
those who would be considered supervisors under the Act but
also any employee who directed the work of others, that the
issue had arisen in the case of hatch bosses who direct long-
shoremen in the loading and unloading of vessels, and that
there have been rulings by the Union's sister locals and by its
parent body that hatch bosses may not serve as stewards.
There was no contradiction of this testimony and it is cred-
ited It follows that on December 26, when Kleparek was
reinstated as leadman there was in effect a properly adopted
union rule barring leadmen from serving as stewards, and, in
view of the timing of Pool's action in removing Kleparek as
steward on that date, it is found that such action was precipi-
tated by Kleparek's elevation to leadman, which created a
situation interdicted by that rule It follows that Kleparek's
ouster was in accordance with a properly adopted union rule
There remains to be considered the legitimacy of the union
interests served by that rule as applied to a leadman like
Kleparek The purpose of that rule, according to Sullivan,
was to "afford the individual worker the best possible repre-
sentation " In this connection, Sullivan cited the difficulty a
leadman-steward would have in prosecuting as a steward a
grievance over some action he had taken as a leadman.
While this may not have been an insoluble problem '16 the
record shows that there were other, more cogent reasons for
an apprehension on the part of Pool and the other members
of the Union's negotiating committee that advancement to
the job of leadman would impair the effectiveness of a stew-
ard. There was uncontradicted testimony by Verostko that at
the penultimate bargaining session, on September 28, the
Company opposed opening up the job of leadman for bidding,
explaining that it considered its leadmento be potential
supervisors; that this explanation prompted the comment by
a union representative that leadmen were management-ori-
ented to the point that they were prone to carry tales to
supervisors about employee activities; that the tendency of
leadmen to inform on their fellow employees was aired again
at the October 3 meeting; and that the consensus of the union
committee with respect to the propriety of the same person
serving as steward and leadman was that "the leadman.. .
historically has been a training ground for supervisors and
that . . a steward could not function as a lead person and
steward at' the same time because the individual would be
35 Union Exh 4, art IX, sec 6
36 See the treatment of this point, above, in connection with the discussion
of the validity of the contractual restriction on steward-leadmen
naturally . . . leaning toward management and management-
oriented with his eye on the supervisory position and that
there would be an inherent conflict of interest."
A fillip was added to the foregoing by Verostko's testimony
that at the September 28 meeting Kleparek, who was on the
union negotiating committee, agreed, himself, that, because
of their identification with management, leadmen should not
serve as stewards. Kleparek did not dispute this and acknowl-
edged, in fact, that at the October 3 meeting he had an-
nounced that he, personally, had no intention of bidding for
a position as leadman.37
It is, thus, clear that the Union 's main concern was that
promotion of a steward to a job which was a training ground
for supervisors would subject him to the temptation to curry
the favor of management and blunt his effectiveness as an
employee representative.
It is found that this was a proper union concern and that
the removal of Kleparek reflected a legitimate interest of the
Union.
There is no contention that the enforcement of the forego-
ing rule against Kleparek was unreasonable," nor does it
appear that it violated any policy of the labor laws within the
intendment of the Court's guidelines in Scofield. No violation
is found in the removal of Kleparek.
III THE REMEDY
It having been found that the Company violated Section
8(a)(3) and (1) and the Union violated Section 8(b)(2) and
(1)(A), it will be recommended that they be ordered to cease
and desist from such violation and that they take appropriate,
affirmative action.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
under the Act.
2. The Union is a labor organization under the Act
3. By adopting on December 27, 1973, a contract provision
precluding any employee from serving as leadman and union
steward or officer at the same time, and by maintaining that
provision in effect, the Company has violated Section 8(a)(3)
and (1) of the Act.
4 By causing the Company to adopt the foregoing provi-
sion, the Union has violated Section 8(b)(2) and (1)(A) of the
Act.
5. Such violations constitute unfair labor practices affect-
ing commerce within the meaning of Section 6 and 7 of the
Act.
[Recommended Order omitted from publication.]
37 He explained at the hearing that a subsequent development affecting
his job status forced him to change his mind
38 Although that rule had not been invoked against Kleparek when he first
served as leadman-steward (in 1972), Sullivan explained that this was be-
cause at that time opposition to such commingling of functions had not yet
crystalized among the employees, such opposition being first expressed at
the 1973 bargaining sessions , described above There was no contrary tes-
timony on the point and no other apparent reason in the record for rejecting
this explanation It is credited
No issue was raised or litigated as to the procedural regularity of Klepa-
rek's removal The General Counsel conceded that such removal was not
motivated by any animus toward Kleparek (See item 7 in Joint Exh 5 )