Wanzer Dairy Co.

National Labor Relations Board - Board Decisions

Aug 27, 1965

154 N.L.R.B. 782 (N.L.R.B. 1965)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an object thereof is to force or require the said employer or person to cease
doing business with any other person engaged in commerce or in an industry
affecting commerce.
PLUMBERS AND STEAMFITTERS LOCAL 494,
Labor Organization.
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.
Employees may communicate directly with the Board 's Regional Office, Eastern
Columbia building, 849 South Broadway, Los Angeles , California , Telephone No.
688-5204 , if they have any question concerning this notice or compliance with its
provisions.
Wanzer Dairy Co. and Edwin Johnson
Milk Drivers' Union , Local 753, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America
(Wanzer Dairy Co .) and Edwin Johnson
Milk Drivers' Union , Local 753, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of America
(Wanzer Dairy Co.) and Lawrence Gaertig. Cases Nos. 13-CA-
6099-1, 13-CB-1615-1, and 13-CB-1615-2. August 27, 1965
DECISION AND ORDER
On May 28, 1965, Trial Examiner Benjamin B. Lipton issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Decision and
a brief in support, thereof; Respondent Union filed briefs in support
of the Trial Examiner's Decision and an answering brief.
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 case to a three-member
panel [Members Fanning, 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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
' It may be that Respondent Union harbored more animosity toward Johnson based on
his intraunion activities than is found by the Trial Examiner . However , upon the entire
record, including particularly the pertinent contract provisions and the evidence of past
experience under the contract which appears to support the Union's application of it
against Johnson , we are not persuaded that such animus was the motivation for the
Union's Insistence that Johnson be removed as a route driver in favor of Anderson.
154 NLRB No. 66.
WANZER DAIRY CO.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
783
STATEMENT OF THE CASES
A consolidated complaint by the General Counsel 1 alleges that Respondent Com-
pany discriminated against Edwin Johnson in violation of Section 8(a)(3) and (1)
of the Act, and that Respondent Union attempted to cause and caused Respondent
Company to discriminate against Edwin Johnson, and attempted to cause Respondent
Company to discriminate against Lawrence Gaertig, in violation of Section 8(b)(2)
and (1) (A) of the Act. A hearing thereon was held before Trial Examiner Ben-
jamin B. Lipton in Chicago, Illinois, on December 14 through 17, 1964. All parties
were represented and participated in the hearing, and at the close, the Respondents
argued orally on the record. Respondent Union's motion to dismiss is disposed of in
accordance with the findings herein? Briefs filed by each of the parties have been
duly considered.
Upon the entire record in the cases and from my observation of the demeanor of
the witnesses at the hearing, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
Wanzer Dairy Co., herein called Respondent Company, or the Company, is
engaged at its principal place of business in Chicago, Illinois, in the sale and distribu-
tion of milk and related products. During the year 1963, in the course of its business
operations, the Company sold and distributed dairy products valued in excess of
$500,000, and purchased and received from points outside the State of Illinois, milk
and other dairy products valued in excess of $500,000. It admitted, and I find, that
Respondent Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, herein called Respondent Union or the
Union, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory facts and setting
Respondent Company maintains in its operations certain designated wholesale
and retail milk routes serviced by particular drivers who are represented under col-
lective-bargaining contract by Respondent Union. The drivers are compensated by
a fixed salary rate plus commission. Although, under the contract, the Company has
the right to assign drivers to routes on the basis of personal qualification and compe-
tency to serve the types of trade involved, the choice of drivers for particular routes
are subject to posting and bidding procedures and is generally determined by a
seniority system or practice.
The controversy herein relates directly to the Company's decision for economic
reasons, to consolidate seven wholesale milk routes, so that the regional area involved
would be serviced by five instead of the theretofore seven drivers. The Company
indicated that the two routes to be eliminated would be those of Carl Anderson and
Wallace Lexow, after it obtained the advice and agreement of the Union's job
steward, Michael Onesto. The latter relied upon a system of "area wide seniority,"
as later described herein. The Union's executive board opposed the Company's
position and demanded that the routes of Edwin Johnson and Lawrence Gaertig be
removed instead-assertedly based upon a practice of applying "company seniority"
in like situations. Following strikes by the Union on February 14 and April 25,
IIn Case No. 13-CA-6229-1, the charges were filed on February 14 and served on
February 19, 1964; in Case No. 13-CB-1615-1, the original charges were filed on
February 13 and served on February 17, 1964; and in Case No. 13-CB-1615-2, the charge
was filed on February 14 and served on February 19, 1964. The consolidated complaint
was issued on May 8, 1964.
fl General Counsel's motion to correct transcript, joined in by counsels for Respond-
ents, is hereby granted.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964, the Company succumbed to the Union's demands and assigned Anderson to
replace Johnson on a route which survived the consolidation program. However,
the Union's request that Gaertig be eliminated rather than Lexow was not pursued
after Lexow voluntarily sought and obtained a different route with the Company.
B. Contentions of the parties and issues
The complaint's allegations that the Union caused the Company to discriminate
against Johnson and attempted to cause it to discriminate against Gaertig, are
predicated on the same motive; i.e., reprisal against Johnson for engaging in activities
"in support of dissident faction" of the Union.
In his brief, the General Counsel describes "in broad terms" the positions that
the Union caused the Company to remove Johnson from his wholesale milk delivery
route because of Johnson's opposition to Thomas J. Haggerty, secretary-treasurer of
the Union, and other members of the Union's executive board; and motivated by the
same animus toward Johnson, the Union "did unlawfully attempt to have one
Lawrence Gaertig removed from [his] route ... in an ineffective attempt to establish
the appearance of a uniform seniority system," or as a cloak for its discriminatory
action against Johnson. The theory as to Gaertig is that the Union's motive was
arbitrary and invidious, without legitimate purpose, and in disregard of its statutory
duty of fair representation, under the principle of the Miranda case.3
The Company's position, throughout the hearing and in its brief, was that it had
technically engaged in the alleged discrimination against Johnson; it explains that
it was forced to accede to the Union's demands by reason of the Union's strikes
which otherwise would have been fatal to its business.
The Union denies the asserted animus toward Johnson and relies, as the basis
for its action, upon provisions in the contract and practices thereunder with respect
to the Company as well as other dairy employers covered by the same contract within
its local jurisdiction.
C. The evidence concerning the alleged animus against Johnson
1. The election for steward in October 1959
Johnson has been a member of Respondent Union since the early 1930's. In
October 1959, he was elected steward at the Company's Roseland division, defeating
the incumbent, Carl Anderson. A few weeks after the election he was visited by
Carmen Cesario, union trustee and business agent for the Roseland barn. Cesano
informed Johnson that the executive board requested that he step down as steward.
Johnson refused, insisting that he had been fairly elected. Thereafter Peter Hoban,
then president of the Union, telephoned Johnson with the same demand, and was
likewise refused. Johnson initially declined requests that he appear before the
executive board, but finally consented and did attend such a meeting in December
1959.4 Hoban suggested that Johnson be removed if he did not step down to make
way for Anderson, who was "a loyal member to the Executive Board;" and Johnson
was told that he was "a lamb being led to the slaughter." Johnson said he wanted also
to be a loyal member and to do a good job, but he declined to step down. Hoban
finally told Johnson that he was "the steward to that barn and that is all [there is]
to it." 5 The meeting ended with Johnson shaking hands with the entire executive
board and wishing them a Merry Christmas.
From the date of his election, Johnson in fact continuously served as steward
without contest by the executive board until he was transferred, with others, to the
Garfield branch of the Company in October 1963. The General Counsel stresses
evidence that the Union did not send Johnson his formal certification as steward
until a year after the election, and a month after Johnson gave support to Hoban in
defeating a certain resolution.
S Miranda Fuel Company, Inc., 140 NLRB 181, set aside 326 F. 2d 172 (C.A. 2).
4Executive board members present at the meeting were: Haggerty, Hoban, McNulty,
Kruger, Feigner, Moline, and Cesario. Four of these individuals have since been re-
placed on the executive board.
5 Testimony of Cesarlo , General Counsel' s witness.
WANZER DAIRY CO. 785
2. The Kensington election
In February 1961, Johnson ran for president of the Kensington branch of Local
753,6 opposing the incumbent officers, which included Carl Anderson.? His slate
was defeated by 40 votes. On grounds that ineligible members were permitted to
vote,8 Johnson protested the election before the Union's executive board, without
success, and then appealed to the Teamsters joint council. Without deciding the
merits of the appeal, the joint council undertook to dissolve three of the outlying
branches , including Kensington , because it found, inter alia, that these branches
merely involved duplicate functions. While this action was being considered, the
president of the joint council privately asked Johnson if closing down the Kensington
branch would satisfy him in regard to his appeal, and Johnson agreed that it would.
In June or July 1961, at a regular membership meeting of the Local, Johnson openly
questioned the quoted costs of $3,500 given by Secretary-Treasurer Haggerty for
closing down the three branches. Haggerty promised to furnish a breakdown of the
$3,500 at the next meeting, but it was never forthcoming.
3. The letter to news media
In September 1961, at a Union membership meeting, President Hoban suffered
a heart attack and died during the course of an argument with Peter J. Farrell, a
driver and steward at another company. As testified by Johnson and Cesario-
Secretary-Treasurer Haggerty and Vice President Kruger reacted with remarks to the
assembled members in effect that, "[This group] will get theirs, they destroyed him,
they killed Hoban."
In June 1962 , a letter over the names of eight members , including Farrell , Irving
Sherman, as well as Edwin Johnson, was mailed to various news agencies questioning
the propriety of a political contribution by Secretary-Treasurer Haggerty purportedly
taken from Union funds. At a membership meeting in July 1962, Haggerty referred
to this "poison letter," which he read to the members and named the eight signatories
thereto. He said that "these men would be dealt with most severely These men-
charges will be preferred and we will destroy them." At subsequent meetings,
the letter was brought up again "many times." During the meetings in October and
November 1963, Haggerty reiterated that "this group would be dealt with." 9
8 The "branch" was purely an administrative division of the Local setup in outlying
areas where transportation was not adequate for members to attend regular union meet-
ings . Officers of the "branch " had no constituted authority or power within the Union.
7 The General Counsel introduced over the printed names of the incumbents a cam-
paign letter which was distributed during the election-asserting: "We are not in-
terested in any disturbance or bad feeling toward our downtown Executive Board. We
support them one hundred percent and will always do so."
8 Cesario testified that , in his capacity as an official at the election , two ineligible mem-
bers came to his table to sign the voting register , and that when he so informed Union
Vice President Kruger, working next to him , Kruger told him to keep his mouth shut
B Irving Sherman testified that he was brought up on charges and fined with respect
to his participation in sending the letter Johnson testified that he received notice from
the Union charging the eight signers of the letter with violation of bylaws ( apparently
for disclosing confidential union matters ). However , there is no evidence of the outcome
of the charges against Johnson.
At the hearing , the General Counsel requested that official notice be taken of the Trial
Examiner ' s Decision in J Ziak d Sons, Inc, 152 NLRB 280, pertaining to charges
filed with the Board concerning alleged threats made by the Union to signatories of the
above-described letter to the news agencies The request was denied . West Point Man,-
ufacturing Company, Wellington Mill Division, 142 NLRB 1161 . Since the close of the
hearing herein , the Board has issued its decision in the Ziak case , supra, of which of-
ficial notice is taken insofar as it is relevant. The Board dismissed the allegations that
the Union threatened bodily or financial harm , or created an atmosphere hostile to the
members who signed the letter to the news media. Included in the background evidence
'before the Board were the events at the meeting in September 1961 ensuing upon the
collapse of Hoban.
206-446-66-vol. 154-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Selling orange juice and switching days off
In September 1962, Business Agent Peter Smith told Johnson that he was
instructed to file charges against him for violating union bylaws in selling orange
juice and switching days off with other members. Smith indicated that Haggerty
had sent him and that Haggerty said he would prefer the charges if Smith did not.
After that conversation, Johnson, as steward, posted a notice that there would be no
more orange juice sold on the truck, and so notified the Company. A few months
later, he wrote Carl Anderson charging that he had violated the orange juice rule,
and turned a copy of the letter over to Smith to act upon it. However, there was
no action taken against Anderson. In October, Johnson filed charges against Smith,
apparently for failure to enforce the rule in his area. In November Johnson and
Smith met with William McNulty, the union president 10 As Johnson testified,
McNulty had genuinely tried to effect a handshake between Johnson and Smith,
stating that it was a personal issue between them, and sought to have each drop the
charges against the other. Johnson refused the conciliation offer. He gave McNulty
evidence purporting to show that other members were selling orange juice and
switching days; but no charges were leveled against them 11 In April 1963, after a
hearing, Johnson was found guilty on both counts and fined $35.12
i
5. Haggerty's reference to the "chief"
About September or October 1963, posted on the bulletin board at the Roseland
barn was a letter, otherwise immaterial, on which there was handpnnted in pencil
by Haggerty the following:
Thanks To All You Great Trade Unionists Who Attended Our Golf Outing.
We Sure Missed the Chief-Or Did We? 13
Haggerty testified that, in referring to the "chief," he meant Business Agent Cesario.
Haggerty's earlier testimony in another Board case 14 (admitted by stipulation and
offered by General Counsel to show a prior inconsistent statement) was that he
was referring to the steward; i.e., Johnson, as the "chief." Even assuming,
arguendo, that the total evidence supports the finding contended, on the theory of
an admission against interest made in the earlier Board case, that Haggerty was
commenting about Johnson-I find the statement that-"We Sure Missed The Chief,
Or Did We?"-entirely too ambiguous and obscure to be worthy of cognizable weight
on the question of the Union's animus against Johnson.
6. Other union elections involving Johnson
In November 1962, Johnson was reelected steward at the Roseland barn, again
defeating Carl Anderson. In December 1963, he ran for recording secretary of the
Union against Peter Smith and Anthony Christiano, with the latter emerging as
victor. As to these elections, the General Counsel alleges no improprieties adverse
to Johnson.
D The alleged discriminations against Johnson and Gaertig
In October 1963, the Company transferred from its Roseland branch to its Garfield
branch the routes and drivers, as follows- No. 215, Carl Anderson; No. 214, L.
Nelson; No. 209, Wallace Lexow; and No. 99, Edwin Johnson. Other wholesale
milk routes at Garfield serving the same geographical area 15 were No. 151, Lawrence
Gaertig. No 120, V. Hennell; and No. 96, T. Stoker-making a total of seven such
routes. In December 1963 and January 1964, the Company, for concededly economic
reason, decided to consolidate these seven routes, by redistributing the customer
stops into five routes to be served by five drivers instead of seven. The two routes
to be eliminated were Nos. 215 and 209 driven by Anderson and Lexow, respectively.
to Successor to Peter Hoban
n Respondent Union appears to argue that Johnson was the only steward who violated
these union prohibitions
12 Business Agent Cesario, who testified for the General Counsel, voted with the
unanimous executive board to sustain the charges against Johnson
13 Also on the same letter, in handprinting not identified as Haggerty's, were the
words-"Not For Long"-next to the name of "Carmen Cesarlo, Trustee," appearing in
the caption of the letter.
14 J. Zsak & Sons, Inc, supra.
15 There were approximately 100 routes at Garfield, consisting of about 38 wholesale
and 62 retail routes.
WANZER DAIRY CO. 787
Before the decision was effected, company officials 16 had discussions on the subject
with Michael Onesto, union steward at Garfield.
Onesto testified that he was initially informed by Ellery that routes Nos. 99 and
209 were going to be pulled. However, there is no indication or corroboration any-
where else in the record that Johnson's route No. 99 was originally mentioned for
removal. Johnson, who was early aware of the changes contemplated, testified to
a conversation in January in which he was told by Onesto and Foreman Malone that
routes Nos. 209 and 215 were coming off and that he "wouldn't be hurt." Onesto's
testimony on this point is effectively controverted in the version given by Sold-
wedel. The evidence reflects no logical reason or explanation for the Company
making such an initial decision to remove route No. 99 and then switching to route
No. 215. Soldwedel testified that a factor in choosing Nos. 215 and 209 was that
these two routes were the lowest of the seven routes involved in productivity-
Viewed in the entire context, I find that Soldwedel's testimony is the more accurate
in this connection and that Onesto was confused or mistaken in stating that the
Company originally selected Johnson's route No. 99 for remova1.17
Onesto's first response to the Company's notification that the two routes would
be removed was to object that it could not be done because there was too much
overtime in the barn,18 and that he would have to discuss the matter first with the
business agent, Christiano. During this period, in January, Onesto was in regular
communication with Christiano, and the latter wth the Company. Onesto indi-
cated there was overtime in the barn when routes Nos. 215 and 209 were pulled on
January 31, 1964. Whatever discussions took place regarding the overtime between
higher union officials and the Company is not shown, but it does appear that it
higher union officials and the Company is not shown, but it does appear that it was
a matter of concern to the Union 19 and was ultimately resolved with the Company.20
The relative seniority standings of the drivers in question were admitted in evi-
dence by agreement, quoted below:
STIPULATION
The following are the Wanzer wholesale routes involved in the redistribu-
tion of stops herein, the dates of the original employment by the Company
and the dates which said employees began working on the particular wholesale
route, of the men who on January 1, 1964, were on these routes are as
follows:
Route No.
Company
seniority
Began on
particular
route
96-------------- T. Stoker------------------------------------------- 1927 1927
215-------------- C Anderson ---------------------------------------- 1928 1957
214-------------- L. Nelson------------------------------------------- 1931 1953
209-------------- W Lexow------------------------------------------ 1936 1962
120-------------- V Hennel------------- ------------------------------ 1941 1945
151-------------- L. Gaertig------------------------- --------- --------- 1942 1942
99--------------- E Johnson----------------------------------------- 1947 211947
16 Gene Ellery, wholesale manager ; Frank Schroeder, Garfield manager ; John Malone,
route foreman ; and Henry Soldwedel, president.
17 While the point is relevant and material, it is not of great significance in the final
resolution of the issues.
18 Union President McNulty testified that the Union "won't allow a route to come out"
If there is overtime in the barn. And Union Vice President Carl Feigner testified similarly
of considerable experience with the Company regarding such overtime and indicated
generally that the Union insisted the overtime be "cleaned up" and paid before the
Union would consent to the removal of a route. Business Agent Cesario added that the
Union was also concerned whether the driver who is given more customer stops as a
result of a route elimination would be able to do the work.
19 For example, McNulty told Christiano that the routes of two junior men would be
eliminated, provided there was no overtime in the barn.
20 Overtime was one of the stated reasons for the strike on February 14, 1904, and
was also specifically included as part of the written agreement settling the strike on
April 25, 1964, as further described infra.
21 It is evident that, of the seven, Johnson and Gaertig had the least tenure with the
Company, while Anderson and Lexow were the last to begin on the particular wholesale
route.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following are relevant provisions in the existing collective -bargaining con-
tract:
Article 3. Seniority in Layoffs. Departmental Seniority, as defined here-
after, shall prevail when making lay-offs of employees because of the elimi-
nation of positions or routes coming under the jurisdiction of this Agree-
ment. The employee in the department with least service, experience foreman,
in which said lay-off or elimination occurs shall be laid off first; provided
that preference with respect to service shall not interfere with the election of
competent drivers properly qualified to serve the types of trade involved
.... Departmental classification will be as follows:
Classifications:
(a) Department No. 1-Milk sales delivery which includes route-riders,
routemen, salesmen and special delivery men. This department shall be
confined to the distribution branches of the Employer. Any man trans-
ferred from one branch to another with a route or his group of routes shall
retain his company seniority. Any man transferred at request of Em-
ployer shall retain his company seniority if agreed upon by Union and
Employer . .
(b) Department No. 2-Transportation men, which includes tank, truck
and van drivers. Seniority shall apply to all such men employed by the
Employer . .
(c) Consolidations and Mergers: Company seniority by departments
shall govern lay-offs within the department affected and consolidations of
branches owned by the Employer ... .
(f) Route Bidding. One route pick in six years. If route is taken off or
transferred, man can rebid in six-year period. Routes to be posted for
seventy-two hours with a description of points and location . Two changes
on each pick. Preference on route bidding shall not interfere with the
selection to competent drivers properly qualified to handle the route. Com-
pany seniority as now in contract. Route Rider's jobs to be subject to bid.
Bidding on routes does not apply during the first year of employment 22
Before the Company puts into effect, on January 31, 1964, its decision to elimi-
nate routes Nos. 215 and 209,23 various discussions took place involving Company
representatives, Union officials, and particular employees concerned. The substance
of the material testimony follows-
Soldwedel testified that he and Schroeder informed Onesto of the decision to
eliminate routes Nos. 215 and 209. Onesto agreed that the two drivers affected;
i.e., Anderson and Lexow, were properly selected as they were the lowest in "area
seniority." Under this concept, the "area" consists of the geographical region
served by routes which are being consolidated by the redistribution of customer
stops. Applied to the instant situation, the "area" comprised the seven wholesale
routes specified in the "stipulation," recited above. And the date on which the
driver first started on his route within this "area," regardless of his company senior-
ity," was determinative of his "area seniority." 24 Onesto explained that he was
taught by Peter Hoban, former union president, that the Union's practice was to
apply "area seniority" with respect to route eliminations. However, he testified-
"Of course, I have had no occasion to use it only in Johnson's case." Onesto
described the same seniority theory to Johnson in assuring him that his route, No.
99, was secure, and to Anderson, telling the latter he did not know if his route,
No. 215, was being taken off.
In January 1964, Anderson separately spoke to Schroeder, Ellery, and Malone
of the Company about the status of his route and was told by each of them that the
Company was waiting for an interpretation from the Union. Anderson also called
Business Agent Christiano about stops taken off his route and expressed fear that
his route would be eliminated.
22 It is also noted that in article 2 of the contract, relating to the Company's hiring
through the Union from a list provided by the Union, it is specified that-"The Em-
ployer shall choose men from the eligible list in the order of their company seniority in
the respective departments . . .
231t appears that some of the customers stops in the seven affected routes were re-
distributed before January 31, 1964.
2 Company seniority was based upon the initial date of employment with the Company.
WANZER DAIRY CO. 789
In the morning of January 28, Onesto notified Christiano by telephone that the
Company was going to remove two routes and that he did not know which routes
or men would be selected. Christiano proceeded to the Garfield barn that after-
noon In the makeup room, he found seated at a table 10 or 12 men engaged in
arguing the question, including Onesto, company officials, Johnson and Anderson.
Christiano asked for and was given the information as to which routes and drivers
were involved. He then went to the bulletin board in the room and obtained from
the posted listing the starting dates with the Company of the seven men affected,
walked back to the table, and circled routes Nos. 99 and 151 and the names of
Johnson and Gaertig, as having the least "company seniority." A heated dispute
ensued with Johnson and Onesto, the latter maintaining that "area seniority" should
govern. Christiano said he would go back to the union headquarters tomorrow
and then return with a decision. The next day, Christiano took the matter up with
members of the executive board. They decided, in agreement with Christiano,
that "company seniority" was controlling, and instructed Christiano to convey the
ruling to the appropriate persons. Christiano returned to Garfield that afternoon
and delivered the decision of the Union. Onesto and Johnson continued to object,
while Christiano insisted-"we are going by the book, it is in the contract." Com-
pany President Soldwedel later that day told Christiano that Johnson threatened
to "sue" the Company; i.e., file charges with the Board, if his route were removed.25
Soldwedel asked what would happen if he did not conform to the Union's position,
and Christiano replied, "Well, then, we will have to take other angles."
On Friday, January 31, as originally decided, the routes, Nos. 215 and 209, of
Anderson and Lexow were eliminated, and the customer stops divided among the
remaining five routes in the area.26 On February 3 or 4, the union executive board
met and unanimously ruled that the two men to be removed by the route elimination
would have to be junior in "company seniority." On February 4, Union President
McNulty telephoned Soldwedel, informed him of the executive board meeting,
insisted that Anderson was to have his route, and sought to convince him that the
union rule was the proper one. Later that day, Christiano told Soldwedel that
Anderson would be put "back on the route tomorrow morning or else." With
McNulty and Christiano, Soldwedel spoke of being sued by Johnson. However,
Soldwedel decided at this point to assign Anderson to route No. 99, taking Johnson
off. Thereafter, for 7 or 8 days, Johnson was home ill. On February 12, Soldwedel
reconsidered and put Johnson back on the route because, as he testified, he felt
that the Company was right in its original decision to eliminate routes Nos. 215 and
209, and that the Company "could be liable for the wrong action."
Anderson then protested to Soldwedel and argued that, on the basis of his senior-
ity under the contract, he should not be eliminated. Soldwedel, asserting the Com-
pany's right to remove routes and Anderson's recourse before the Labor Board,
was unmoved. Anderson raised the matter before a meeting of the union executive
board, which reaffirmed its prior ruling that Anderson was entitled to the route.
On February 14, at 2 a.m., the Union caused a work stoppage at Garfield. Mem-
bers of the executive board appeared at the barn, including McNulty, Christiano,
and Haggerty.27 Haggerty related various demands of the Union,28 including spe-
cifically that "Anderson and Lexow be put back on their routes and the two youngest
men [of the seven drivers concerned] to bid on all other routes." The Company
immediately agreed to the Union's demands and work was thereupon resumed.
Following the strike, Gaertig continued to serve his route, No. 151, without
interruption, and the Union made no further attempts to alter the situation. The
question was apparently resolved by voluntary action on Lexow's part, with the
25 Soldwedel repeated such statement in conversations on the subject at different times
with various union representatives and employees
20 As reconstituted , Johnson's route consisted of nine stops from route No 215 ; three
stops from route No 209 ; and two original stops of route No 99. There were variations
in the number of "points ," or units of milk delivered for each stop , and the two stops
which continued on route No 99 were shown to be relatively very large in "points."
27 Soldwedel was told by McNulty to wait for Secretary -Treasurer Haggerty as "the
spokesman ," and Haggerty showed up somewhat later. McNulty testified that Haggerty
generally acted as spokesman for the Union "on decisions of the executive board and
in negotiations."
21 E.g.-"that P. Holahan be given his route back , plus all backpay , that Suski be
brought back and returned to Wanzer ." These demands were quoted in the record from
Christlano 's affidavit given to a Board agent . Christlano also testified that the existence
of overtime in the barn was stated as one of the reasons for the February 14 strike. A
number of the same demands are reflected in the settlement agreement at the April 25
strike, infra.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement of the Union and the Company. Lexow indicated his desire for a school
route which had been opened for bidding.29 One other driver who initially bid on
the school route withdrew his bid. The Union executive board then considered the
Lexow-Gaertig problem and agreed, in the circumstances, that Lexow could have
the school route. The matter was discussed between the Union and the Company,
and it was decided that Lexow would be put on the school route 30 until the Garfield
consolidation dispute was cleared up.
From February 14 until the first week in April 1964, when Johnson left on his
vacation, surviving route No. 99 was driven jointly by Anderson and Johnson.
However, Anderson received the commissions, not Johnson. Within the week after
February 14, Anderson complained to Christiano about Johnson riding route No.
99 with him, and also demanded to have the route bear his number 215 because
the route contained so many of his original customer stops. He particularly pressed
his objection after Johnson left on vacation in April. Christiano agreed with Ander-
son, and pursued the question with Soldwedel and then with the union executive
board.
At 2 a.m. on April 25, the Union again struck. Haggerty presented the Union's
demands. The strike was settled the same morning upon the signing of the follow-
ing agreement, written out by Haggerty:
April 25-1964
The Wanzer Dairy with Henry Soldwedel their President agrees to the
following
1. That Paul Halligan [Holahan] who previously was to be put back on his
job as Route Rider, the same immediately back on his job as Route Rider, the
same immediately to be put into effect and his backpay on Route Riders Job to
be paid.
2. That Carl Anderson to get the exclusive right to his route on the basis of
Seniority as decided by our Executive Board and that was previously agreed
to by you and our officers.
3. All overtime due April 23rd will be paid by next Thursday April 30th.
4. That the two routes #482 and Route #37 be put back because they were
taken off when our Union Representative asked to be given an opportuinty to
check into same.
5. That immediate action shall be taken to restore our Transportation mem-
bers jobs.
6. The Company shall complete reports Daily.
7. The Company shall apply along with the Union its responsibility of see-
ing that all Members punch their Time Cards Daily.
8. This is a full and a complete settlement of all claims and both sides
agree there will be no Court or other action on same.
WANZER DAIRY CO.
(S) Henry A. Soldwedel
MILK DRIVERS UNION
(S) Thomas J. Haggerty
Witness (S) William McNulty
Thereafter, Anderson exclusively drove the route, which, however, remained
designated as route No. 99. When Johnson returned from his vacation in May,
he was told by the Company that the Union insisted that he not be put back on that
route. Johnson was assigned other work, including driving of vacation routes, and
since September 1964, was employed as store solicitor31
E. Seniority practices regarding route eliminations
The record is replete with evidence concerning the Union's practice at the Com-
pany, as well as at other dairy companies in the area covered by the identical pro-
visions of the collective-bargaining agreement. In virtually all instances, "company
seniority" was applied, in the manner here espoused by the Union. With the excep-
29For a few days, Lexow rode route No. 151 with Gaertig. Christiano testified that
Lexow Informed him that he could not handle the work on this route, No 151.
80 Soldwedel testified that Lexow was given the school route on the basis of his
seniority.
8' Under the wage scale of the contract , a store solicitor receives $3 30 an hour; a
commission wholesale routeman , $3.17 an hour ; and a noncommission wholesale route-
man, $3.65 an hour. It was not shown whether Johnson was permitted to or did bid on
"all other routes," as agreed in the strike settlement on February 14, 1964.
WANZER DAIRY CO. 791
Lion of Union Steward Onesto, the testimony generally by union witnesses was that
they never heard of "area seniority" until the present controversy.32
As regards this Company, a series of correspondence from Bertel Carlson, man-
ager of the Argyle branch, to William Agnes, union steward of the branch, with
copies to Company President Soldwedel and Union Vice President Feigner, show
eight instances of consolidation of retail routes in 1963.1-3 Also, letters from Carlson
to Soldwedel show two additional instances. Supported by the testimony of all the
aforementioned individuals, the evidence unquestionably establishes that the drivers
with the most recent starting dates of employment with the Company; i.e., those
having the least "company seniority," were relieved from the routes eliminated.
"Area seniority" played no part in the determinations. In one of the instances, Agnes
himself, although a steward like Johnson, was removed from his route on this basis.34
Numerous instances reflecting the experience at several other dairy companies,35
adduced by specific testimony, require no detailed discussion. Essentially the same
results were evidenced as reflected in the Company's practices, described above.36
General Counsel's witnesses Cesario and Onesto corroborated the actual use and
practice of "company seniority" for the purposes in question. Concerning the "area
seniority" test, as such, no showing was made that it was ever actually applied in
practice.
However, the General Counsel appears to stress one occasion at the Company's
Roseland branch in June 1960 where "company seniority" was not controlling in
the removal of a wholesale route held by Lexow. Johnson, then a steward at Rose-
land, in fact had less "company seniority" than Lexow. These were the circum-
stances: The Company lost its school accounts on Lexow's route and, for this rea-
son, decided to eliminate that route. The Union struck to prevent the route removal
because, as Cesario testified, there was overtime in the barn and the Company
had acted without completing discussion of the matter with the Union. As a result
,of the strike, Lexow was kept on for about a week and then, with the Union' s agree-
ment after negotiations, was taken off the route 37 Among other things, it was
agreed that Lexow would go back on the same route after Labor Day if the Com-
pany was able to recover the school business, as it anticipated. In the disposition
regarding the Lexow route at Roseland, there is no indication that any consideration
was given to the described system of "area seniority." The seniority basis for the
action, if any, was not revealed in the record. No consolidation program was
involved, as in the situation at bar. Apparently, this was a special solution affecting
Lexow's particular route and was worked out in consultation with the Union. In
any event, this incident in 1960 would not operate to alter the clearly evidenced
pattern of applying "company seniority" in regard to route eliminations.
F. Findings and conclusions
The General Counsel's case is predicated principally upon the existence of a
vindictive motive of the Union toward Johnson for his asserted "dissident" activities.
In this premise, the complaint fails, clearly in my opinion, for want of required proof.
Stretched out in fragments over a considerable period of time, the evidence adduced
is at best only suggestive and lacks sufficient directness of intent by the Union to
take this manner of reprisal against Johnson in the route eliminations of 1964.
On the element of animus, the bulk of evidence relied upon by the General Coun-
sel is in the nature of background, antedating the 6-month limitation period of Sec-
tion 10(b) of the Act. 38 The incident ielating to Johnson's election as steward in
32 For example, General Counsel's witness, Carmen Cesario stated that in his experience
as business agent and member of the executive board for some 6 years he knew only of
"company seniority."
as For seniority purposes, no distinction is alleged as between retail and wholesale
routes, and none is provided under article 3(a) of the contract, supra
"None of the drivers of the routes eliminated was actually laid off: they bumped the
junior man in the barn, were put on vacation routes or other job, or the eliminated
route was already "open" because the previous driver had left the company's employ.
as E.g., Bowman Dairy ; Christiano Bros. Milk Distributors ; Capital Dairy ; Kraml
Dairy ; and Borden Dairy.
as However, layoffs of the drivers affected did take place at other dairy companies.
37 According to Business Agent Cesario, Lexow replaced the junior man in the barn
on a retail route
38 The background evidence was offered and admitted on the basis that it would
"throw light on the true character of matters occurring within the limitation period."
E.g., Local Lodge No. 1424, International Association of Machinists , AFL-CIO v. N.L.R.B.,
362 U.S. 411, 416.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 1959 is not only remote, but in substance furnishes negligible assistance to
the General Counsel on the point. It suffices that the controversy ended amicably
with no indication of residual antagonism by the Union toward Johnson. Even
assuming irregularities in the Kensington election of February 1961-a question not
presented or properly to be determined here-the inference cannot be drawn that
the Union was deliberately seeking to manipulate the election against Johnson's
slate, that Johnson was acting as a "dissident," or that the Union evinced any
resentment against Johnson for challenging the election. As one of the eight signers
of the letter to the news agencies in June 1962, Johnson clearly incurred the dis-
pleasure of Secretary-Treasurer Haggerty. As already noted, the Board in the
Ziak case, supra, dismissed allegations against the Union of any unlawful conduct
in connection with this same affair and its background. Nevertheless, a general
animus short of coercion is implied in the remarks, e.g., that "these men would be
dealt with," that "charges will be preferred," and that "we will destroy them,"
However, these remarks, which are ambiguous, cannot reasonably by found in the
whole context as extending beyond the intraunion proceedings which were brought
against the men, or as providing a proximate link with the Union's action relating
to the instant route eliminations The selling of orange juice and switching of days
off, for which Johnson was brought up on charges and found guilty, reflects no
significant harboring of animosity toward Johnson by the Union, or by Haggerty.
That others were not prosecuted within the Union, though information was made
available that they too were, allegedly, engaging in the same prohibited conduct,39
does not prove disparate treatment of Johnson rooted in hostility. On the part of
the Union, as such, a more benign attitude toward the controversy would appear
from the "genuine" effort of the president, McNulty, to effect a handshake between
Johnson and Smith and have each drop the charges against the other-which pro-
posal was refused by Johnson. The various incidents adverted to by the General
Counsel must also be considered in conjunction with the later election campaigns
of Johnson, most recently in December 1963, in which there is absent any attempt
by the Union to prejudice Johnson. No mention or consideration of these past inci-
dents, as described, or of personal antipathy toward Johnson, was revealed in any of
the discussions surrounding the route eliminations in question. To be sure, there
are indications of factionalism within the Union involving Johnson, Anderson, Hag-
gerty, and others. This cannot be regarded as abnormal in the internal functioning
of the Union, especially at times of election contests for union office. In no instance
has Johnson been shown to challenge the policies or administration of the union
executive board as would mark him as a "dissident" sufficient reasonably to imply
a motive by the Union to take reprisal against him.
Turning to the Union's actual conduct regarding the route eliminations in 1964,
a question remains whether its actions were inherently discriminatory as to sustain
the alleged violation on the theory of the Radio Officers case.40
The collective-bargaining contract does not spell out literally the situation con-
fronting the parties insofar as the route changes instituted were confined to the
"area" affected.41 But article 3 of the contract can be read fairly to embrace the
problem in its provisions that "departmental seniority" shall prevail in "layoffs"
occasioned by "elimination of positions or routes." 42 Although the contract, under
29 Presumably, Johnson himself could have preferred the charges against Anderson and
others.
40 The Radio Officers' Union of the Commercial Telegraphers Union , AFL (A. II. Bull
Steamship Company) v. N.L.R.B, 347 U.S. IT, 42, which stands for the proposi-
tion, in brief, that specific proof of intent is unnecessary in certain eases where the con-
duct "inherently encourages or discourages union membership" for purposes of Section
8(b) (2) and 8 ( a) (3) of the Act . See also Local 357, International Brotherhood of Team-
sters, etc. ( Los Angeles -Seattle Motor Express ) Y. N.L.R.B., 365 U S. 667, 674, and
N.L.R.B. v. Brown Food Store, 375 U.S. 962.
u However, it was the regular practice of limiting seniority questions to drivers in the
area affected by the route changes No one has contended here for a broader effect.
42 Whether actual layoffs take place, after bumping and bidding procedures are utilized,
apparently cannot always be determined at the outset. It is a reasonable construction
that the parties intended to have a uniform seniority system in regard to route
eliminations.
In Johnson 's case, as it developed , he suffered no layoff, although it is not shown
whether he exercised bidding or bumping rights . Soldwedel testified that the initial
designees for elimination , Anderson and Lexow , could have bid on open routes. And in
the strike settlement on February 14, 1964, part of the agreement was that the "two
youngest men" in company seniority ; I e., Johnson and Gaertig, would "bid on all of
the routes."
WANZER DAIRY CO. 793
article 3 ( a) and ( b), defines department I (retail and wholesale delivery) and
department 2 (bulk transportation )-coverage necessary generally for other
employers subject to the same uniform contract-the record makes clear that the
operations of Respondent Company were effectively confined to the description in
department 1. Therefore , in its application to the Company , departmental senior-
ity was in effect the equivalent of "company seniority ." 43 Furthermore , the con-
tract elsewhere contains several references to "company seniority " as a controlling
test 44 Conversely , the contract contains no basis for a system of "area seniority,"
as described supra, now argued on the Company 's behalf.45 In any case, under no
conceivable construction is the contract in conflict with the Union 's position,
which is well confirmed and supported in the substantial showing of the practices
under the contract of applying "company seniority " to the type of situation
involved.46
It is not necessary for the Union 's defense that its interpretation of the contract
be correct 47 It is sufficient that the the Union did not, as I find, act unreasonbly,
arbitrarily , unfairly, in violation of contract , or without legitimate purpose,48 in
seeking Anderson 's replacement of Johnson on the surviving route No. 99 . 49 Engag-
ing in a strike to compel the Company to accept its seniority demands was a proper
prerogative of the Union.50
As already found, the complaint lacks proof of specific intent by the Union to
cause the Company unlawfully to discriminate against Johnson . I find the further
ground of the General Counsel, based upon Radio Officers, that the Union 's conduct
in causing Johnson's removal was inherently discriminatory likewise fails of sup-
port in the record 51 On the theory presented , Gaertig's case falls with that of
Johnson. The Company's admission at the hearing 52 of the complaint 's allegations
cannot thereby visit the violation upon the Union , in view of the actual litigation
"Supported in the testimony of General Counsel's witnesses Johnson, Cesario, and
Onesto , and not contended otherwise.
44 Article 3 ( f), for example , provides for "Route Bidding" on the basis of "Company
seniority as now in contract " ; this clause would conflict with the concept of "area
seniority." And see Williston on Contracts, § 618 (3d ed.)-that "the writing will be
read as a whole and every part will be interpreted with reference to the whole."
46 The General Counsel does not take the position that any system of seniority is correct
under the contract , but argues that the Union 's procedure here was merely a "union
rule," unprecedented and discriminatorily applied in this situation
49 The Company does not contend that its selection of the two routes and drivers to be
eliminated was based upon the competency of the drivers to serve the types of trade
involved . Nor was the Union estopped from overriding steward Onesto 's early advice
to the Company that "area seniority " was applicable . Brewery and Soft Drink Workers,
Local Union No. 163 ( Stegmaier Brewing Company ), 134 NLRB 99 . Indeed , the Company,
before and after the route eliminations on January 31, 1964, was aware of the contrary
view of higher union authority , with which , however, it chose to disagree.
47 Cf. New York Typographical Union Number Six, International Typographical Union,
AFL-CIO (The New York Times Company, etc.), 144 NLRB 1555, enfd 336 F. 2d 115
(C.A. 2).
48 id ; Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Planet Corporation), 144 NLRB 798; Armored Car Chauffeurs
and Guards, Local Union No. 820, etc (United States Trucking Corporation), 145 NLRB
225; Houston Typographical Union No. 87 , etc. (Houston Chronicle Publishing Com-
pany, etc.), 145 NLRB 1657; cf. Miranda Fuel Company, Inc., 140 NLRB 181, set aside
326 F. 2d 172 (CA. 2).
49 As it appears, the Company effected a major revision of Johnson's original route No.
99 by redistributing customer stops, most of which came from Anderson ' s former route
No. 215.
co E g., Kramer Brothers Freight Lines, Inc., 130 NLRB 36; Central States Petroleum
Union, Local 115, Standard Oil Company, 127 NLRB 223.
m An affirmative defense, which the Union asserted in its answer to the complaint but
was permitted to withdraw at the hearing, alleges that the Company discriminated in
favor of Johnson and Gaertig, "because of their activities against the officers of the
Union." Contrary to arguments of the General Counsel , I do not find , in disregard of the
full record made on the issues , that the Union thereby admitted that it sought John-
son's removal for this very reason, amounting to a virtual concession of the allegations
in the complaint.
r2 It had entered denials in its answer.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reflecting that the Union did not cause the Company to engage in unlawful dis-
crimination . Notwithstanding its position , I find no violation was committed by the
Company. Accordingly, the entire complaint will be dismissed.
Upon the foregoing findings of fact, and upon the entire record in the cases, I
make the following:
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of the Act.
3. The allegations of the complaint that Respondent Union has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) and (2 ) of the Act
have not been supported by substantial evidence.
4. The allegations of the complaint that Respondent Company has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act
have not been supported by substantial evidence.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Garrison Coal Co., Inc. and Carl Roy Skeens and Donald Wil-
liams and Local No. 50, Reform Mine Workers Union, Party to
the Contract . Case No. 9-CA-3391. August 27, 1965
DECISION AND ORDER
On May 28, 1965, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in and was not engaging in certain unfair labor
practices as alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision together with a support-
ing brief and the Respondent filed an answering brief in support of
the 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 case to a three-member
panel [Members Fanning, 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 Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.'
'We find no merit in the General Counsel's contention that the Trial Examiner's
credibility findings should be rejected , as the clear preponderance of all the relevant
evidence does not convince us that the credibility findings are erroneous . Standard
Drywall Products , Inc., 91 NLRB 544, enfd . 188 F. 2d 362 ( C.A. 3).
154 NLRB No. 65.