Whiting Milk Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1964

145 N.L.R.B. 1035 (N.L.R.B. 1964)

WHITING MILK CORPORATION 1035
an understanding is reached, reduce it to writing and sign it . The bargaining
unit is:
All employees at the Palo Alto store excluding lumber handlers, outside
contract salesmen, truckdrivers, lift-truck drivers, guards, and supervisors
as defined in the National Labor Relations Act.
WE WILL offer to Wilbert Bentley, Harry Engman, William McBrearty, and
Burnell Walker, immediate and full reinstatement each to his former or sub-
stantially equivalent position, without prejudice to seniority or other rights and
privileges, and will make each of them whole for any loss of earnings suffered
by reason of discharge.
WE WILL NOT by unlawfully refusing to bargain or by means of discriminatory
discharges or in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to join or assist Retail
Store Employees Union, Local 428, Retail Clerks International Association,
AFL-CIO, or any other labor organization, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
MEANER LUMBER AND HARDWARE COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 830
Market Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension
3191, if they have any question concerning this notice or compliance with its
provisions.
Whiting Milk Corporation and Martin M. Walsh and Lester J.
O'Neil
Milk Wagon Drivers & Creamery Workers Union, Local 380 a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Martin M. Walsh and
Lester J. O'Neil. Cases Nos. 1-CA-39f1, 1-CA-4118, 1-CB-796,
and 1-CB-838. January 16, 1964
DECISION AND ORDER
On June 20, 1963, Trial Examiner Fannie M. Boyls issued her Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain 'affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondents filed exceptions to the
Intermediate Report and supporting briefs, and the General Counsel
filed it brief in support of the Intermediate Report.
145 NLRB No. 103.
1036 DECISION S OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. These
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in these cases, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions.'
As set forth more fully in the Intermediate Report, Respondent
Whiting and Respondent Union have for many years been parties to
a multiemployer contract known as the Milk Industry Agreement.
At all times relevant here, the parties' contracts have contained a
provision numbered as clause 70 in earlier versions but now referred to
as clause 81, which, inter alia, provides in substance that if any em-
ployer party acquires or merges with "another Union Company," the
preexisting seniority of the employees of the acquired company shall
be preserved and integrated with the seniority of the employees of
the acquiring company. The term "Union Company" is construed
by the parties as meaning an employer whose employees have been
represented by the Respondent Union.
On or about June 1, 1961, Respondent Whiting acquired White
Milk Company. The latter had theretofore operated five plants in
Massachusetts. At four of them, the employees had been represented
by Respondent Union.2 At the fifth, located in Hyannis, the employees
had been unrepresented. Following WWTliiting's acquisition, ,the former
White employees at all five plants were incorporated into the unit of
Whiting employees covered by the Milk Industry Agreement, the
employees of the previously unrepresented Hyannis plant being re-
gardedl,s an accretion to that unit. However, in conformity with
clause 81, as construed by the parties, the former White employees at
the four represented plants were accorded preferred seniority status
over those at the previously unrepresented Hyannis plant. The em-
ployees in the first group Were treated as carrying their White seniority
over to Whiting. The Hyannis employees, on 4he other hand, were
treated for seniority purposes as if they were newly hired employees.
The Charging Parties, Martin Walsh and Lester O'Neil, were among
the employees who had worked at White's Hyannis plant before its
acquisition by Whiting. As employees who had not theretofore been
members of the Union, they were subordinated to other former White
employees on Whiting's companywide seniority roster. Walsh and
O'Neil suffered no adverse effects from their placement at the bottom of
Whiting's seniority list fora period of more than 6 months thereafter.
1 We deny the Respondents ' request for oral argument because, in our opinion, the record,
exceptions , and briefs adequately set forth the positions of the parties.
2 The Agreement contained a union-security clause requiring membership in the Union.
WHITING MILK CORPORATION 1037
Subsequently, however, they were each laid off on two occasions. But
for clause 81, which required Whiting to place their names at the bot-
tom of the companywide seniority list and thereafter to maintain their
inferior status on that list, they would not have been laid off at all.
That their selection for layoff was substantially related to their earlier
lack of membership in the Union was reaffirmed by Whiting at the
time of such action. As found by the Trial Examiner, the Hyannis
plant manager, when laying off Walsh and O'Neil, made statements
to the effect that their replacements had been in the Union longer
than they had and that if Walsh and O'Neil had joined the Union
while working for White, they could not have been selected for layoff.
1. The complaint in this case is based on charges filed September 19,
1962, less than 6 months after the initial layoff referred to above. The
Trial Examiner found, and we agree, that Respondent Union and Re-
spondent Company violated Section 8(b) (1) (A) and (2) and Sec-
tion 8 (a) (1) and (3) of the Act, respectively, by continuously main-
taining and giving effect since March 19, 1962, -to the contract seniority
system, specifically clause 81, which on its face requires discrimination
against employees because of their prior lack of representation by Re-
spondent Union.'
2. The Trial Examiner further found, and we likewise agree, that
Respondents violated the same sections of the Act by the layoffs of
Walsh and O'Neil pursuant to the unlawfully maintained seniority
system required by clause 81 of the contract.
Respondents contend that Section 10(b) operates as a'bar to any
violation finding as to these layoffs because Walsh and O'Neil were
first subjected to the terms of the discriminatory seniority provision-
though not to the actual operation thereof which effectively disrupted
their employment tenure--when they were first placed on this dis-
criminatory seniority roster more than 6 months prior to the filing
of charges giving rise to this proceeding.
We reject that contention. The seniority roster on which Walsh
and O'Neil were placed prior to the 10 (b) period was dependent upon,
and had no durability or binding force of its own apart from, the
contractual provision which required it .4 The Charging Parties' con-
tinued discriminatory retention on the seniority roster, which other-
wise might have been corrected, was compelled by the uninterrupted
maintenance of the illegal contract term within the 10(b) period.
The selection for layoff of Walsh and O'Neil also within the 10(b)
period thus resulted from the enforcement of the unlawfully main-
tained seniority provision.
8International Association of Machinists, Aeronautical Industrial Lodge 727 et at.
(Menasco Manufacturing Company ), 123 NLRB 627, 629, enfd. as modified 279 P. 2d 761
(C.A. 9), cert. denied 364 U.S. 890.
1 Traalmobule Co. v. Whirls, 331 U.S. 40, 53, footnote 21.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our finding of a violation need not, and does not, depend on a
subsidiary finding that Respondents engaged in a time-barred unfair
labor practice. Wholly apart from any such earlier unfair labor
practice, it is sufficient to spell out a violation here that the layoffs of
Walsh and O'Neil were directly attributable to the application within
the 10(b) period of an unlawfully maintained discriminatory contract
provision. Here, as in the closely parallel Potlatch Forest case,5 which
was cited with apparent approval by the Supreme Court in the Bryan
Manufacturing case 6 and which we regard as square authority for the
holding we make, Respondents' conduct during the barred period has
been considered merely for the purpose of bringing into clearer focus
the current conduct which, even without reliance on any earlier un-
fair labor practice, supports a finding of statutory violation in the
layoffs.
The cases relied upon by Respondents do not weaken the force of
our holding. The Bryan case 7 involved the enforcement and mainte-
nance of a contractual provision-a union-security clause-which was
lawful on its face, but which had been unlawfully entered into more
than 6 months before the charges were filed. The union-security clause
in that case could be found discriminatory only on the basis of a finding
of an unfair labor practice in the initial execution of the contract dur-
ing the barred period. Here, on the contrary, the Charging Parties
were laid off by reason of a discriminatory seniority policy that was
compelled by a then-existing contractual provision which was unlaw-
ful on its face, making it unnecessary to go outside the contract itself,
and its application at that time to spell out unlawful discrimination.
The record shows, moreover, that the discriminatory character of the
layoff selections was contemporaneously reaffirmed by the explanation
given therefor by the Hyannis plant manager, as more particularly
noted above. The Bowen case is equally distinguishable." There, un-
like the situation in the instant case, the layoff was effected under a
contract which was concededly lawful on its face and was not under
attack. The only basis on which a violation might have been found
was to rest the decision on a time-barred finding of earlier discrimina-
tion in the seniority placement of the laid-off employee. The majority
in Bowen was careful to note the absence of an unlawful contractual
provision compelling such continued discrimination, distinguishing
that case from Potlatch on the ground that in Potlatch, as in the in-
stant case, "the discriminatory seniority policy [that was being ap-
plied] . . . was . . . unlawful on its face and continuing in nature."
'Potlatch Forests, Inc ., 87 NLRB 1193, 1210, enf. denied on other grounds , 189 F 2d
82 (C.A 9)
0 Sub nom., Local Lodge No 1424, International Association of Machinists v. N L.R B.,
362 U.S. 411, 419, 420.
v Ibid
8 Bowen Products Corporation, 113 NLRB 731.
1 Id. at 733.
WHITING MILK CORPORATION 1039
In short, in Bowen, unlike Potlatch, "the gravamen of the unfair labor
practice complained of lay in a fact or event occurring in the barred
period"-a distinction the validity of which the Supreme Court ex-
pressly recognized in Bryan, supra." The layoff violations we find in
the instant case arise, as in Potlatch, from the application and enforce-
ment within the 10(b) period of a seniority provision which was both
unlawful on its face and was at the time unlawfully maintained.
ORDER
The Board adopts as its Order the Trial Examiner's Recommended
Order with the following modifications :
1. Substitute the following for the provisions of the Recommended
Order preceding subparagraph A:
Upon the entire record in these cases and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondent,
Whiting Milk Corporation, its officers, agents, successors, and
assigns, shall:
2. Substitute the following for the paragraph of the Recommended
Order immediately preceding subparagraph B :
Upon the entire record in these cases and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondent,
Milk Wagon Drivers & Creamery Workers Union, Local 380,
a/w International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, its officers, representatives,
and agents, shall :
10 362 U S. 411, 424.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges dated September 19, 1962, filed by Martin M. Walsh, an individual,
against the Respondent Whiting Milk Corporation (herein called Respondent Com-
pany or Whiting) and the Respondent Milk Wagon Drivers & Creamery Workers
Union, Local 380, affiliated with International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America (herein called Local 380 or Respond-
ent Union ), respectively , a consolidated complaint was issued on December 18, 1962.
Each Respondent filed an answer to the complaint . Thereafter , on March 11, 1963,
a new charge was filed against both Respondents by Lester O'Neil, an individual. A
hearing was commenced at Boston , Massachusetts , on March 13, 1963, before Trial
Examiner Thomas S. Wilson. Prior to the taking of any testimony, however, the
General Counsel moved to amend the complaint to cover the matters alleged in the
new charge. The Trial Examiner permitted the amendment but adjourned the hearing
to March 26 to afford Respondents adequate time to prepare their defense to the
complaint, as amended. The complaint as thus amended alleged that Respondent
Union and Respondent Company had violated Section 8(b)(1)(A) and (2) and
Section 8 ( a) (1) and (3) of the National Labor Relations Act, respectively , by main-
taining in effect and enforcing an unlawful contract provision and by discriminatorily
effecting the layoffs of the two Charging Parties, Martin M . Walsh and Lester J.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Neil. Each Respondent filed an answer in which it denied the commission of
the unfair labor practices alleged and set up certain affirmative defenses which will
be described hereinafter.
A hearing on the consolidated amended complaint and Respondents' answers
thereto was held on March 26 through 29 and on April 3 and 4, 1963, before Trial
Examiner Fannie M. Boyls, duly designated to hear the matter in the place of
Trial Examiner Wilson who had become unavailable for the adjourned hearing. All
parties were represented and afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument, and to file briefs before me.' Counsel
for both Respondents argued orally before me and counsel for all the parties
thereafter filed briefs which I have carefully considered.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
The Respondent Company is a Massachusetts corporation, having its principal
office and place of business in Quincy, Massachusetts. It operates plants at Quincy,
Hyannis, and a number of other locations in the Commonwealth of Massachusetts,
at which it is engaged in the processing, sale, and distribution of milk and related
products. In the course and conduct of its business, it annually receives products
and materials valued in excess of $1,000,000 at its principal place of business in
Massachusetts from points outside the Commonwealth. Respondent Company
concedes, Respondent Union does not dispute, and I find that Respondent Company
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE RESPONDENT UNION
The parties concede and I find that Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
Respondent Union and Respondent Company have for many years been parties
to a Milk Industry Agreement. Also parties to this contract were White Brothers
Milk Company (herein called White) and a number of other milk companies in
Massachusetts. Following the acquisition on June 1, 1961, by Respondent Company
of the five plants of White, the seniority and category service of employees of the
four White plants which had theretofore been represented by Respondent Union
were merged with those of Respondent Company's employees so that their status on
Respondent Company's seniority lists was the same as it would have been had they
been employed by Respondent Company from the beginning of their service with
White. This integration of seniority and category service was required under the
Milk Industry Agreement.
One of the White plants, that at Hyannis , had never been represented by Respond-
ent Union or, so far as the record shows, by any other labor organization. White
and Respondent Union had not regarded it as covered by the Milk Industry contract.
Following its acquisition by Respondent Company, however, both Respondents
treated it as an accretion to the companywide unit or units and the employees of
that plant , at least for layoff and bumping purposes , were regarded as new employees
and placed at the bottom of the companywide seniority lists. Because they were thus
placed at the bottom of the seniority lists rather than credited with seniority and
category service on the same basis accorded White's former employees in the
organized plants, two of the former White-Hyannis employees-the Charging
Parties-were bumped by employees from other plants and laid off in April 1962,
and on subsequent occasions.
Within 6 months after the first layoffs but more than 6 months after fixing of the
employees' seniority status on the companywide seniority rosters, charges were filed
and served on Respondents alleging discrimination against Martin M. Walsh and
other former White-Hyannis employees. Unless, therefore, the fixing of seniority
status and consequent layoffs were pursuant to a provision of the Milk Industry
contract which required unlawful discrimination and which continued in effect
within the period protected by the limitations proviso to Section 10(b) of the Act,
'At the commencement of the second day of the adjourned hearing, the Respondent
Company substituted new counsel , Samuel Leiter , for its original counsel , Leon A. Green.
WHITING MILK CORPORATION 1041
or unless, independently of the contract, conduct of Respondents within the Section
10(b) period may evidence a discriminatory motivation in the selection of the
Charging Parties for layoff, no statutory violation may be found 2 The General
Counsel contends that on both counts, a violation of Section 8(b)(1)(A) and (2)
by Respondent Union and of Section 8(a)(1) and (3) by Respondent Company has
been proven. Respondents defend the validity of their contract and deny that any
statutory violation has occurred but contend that if any unlawful discrimination ever
occurred, it was at the time the seniority status of the Charging Parties was fixed in
1961 and that any unfair labor practice finding based upon the action then taken by
Respondents is time-barred.
B. The applicable contract
For many years there has been a trend in the milk industry, at least in Massa-
chusetts, for milk companies to merge or sell out their businesses and the smaller
milk companies, in particular, have been steadily declining in number. As a result
of the acquisitions and mergers, routes have been consolidated and the number
of employees in the industry has diminished. This situation appears to be a con-
tinuing trend. The problems presented in this proceeding, therefore, are of sub-
stantial importance in the milk industry. The Respondent Union and the employer
parties to the Milk Industry Agreement, of which Respondent Company is one, have
attempted to cope with problems presented by these mergers and acquisitions in their
various collective-bargaining agreements over the years. The contract in effect at
the time Respondent Company acquired White's plants and employees in June 1961
contained a clause 70, renumbered and appearing in the current contract (and herein
referred to) as clause 81, which reads as follows:
If the Company merges with or acquires, by any means, another Union Com-
pany, the seniority and category service of those affected by such action shall be
deemed to have been established with the entity produced by such merger or
acquisition. In an acquisition, unlike a merger, the right to displace an employee
of the acquiring company through a route, bid-classification, or foremanship
consolidation by an employee of the acquired company with the assertion of
category service or seniority shall be disallowed until the anniversary of the
acquisition. Seniority may be asserted to retain employment through a lack of
work layoff.3
It is this provision which is alleged in the complaint to discriminate unlawfully
against employees and prospective employees of Respondent Company on the basis
of their prior lack of membership in or organization by Respondent Union.4
At the outset of the hearing and prior to the receipt in evidence of the entire
Milk Industry Agreement, I stated that clause 81 appeared to me to be somewhat
ambiguous and I permitted testimony by James Walsh, formerly director of labor
relations and personnel for Respondent Company, who had negotiated the contract
2Local Lodge No 1424, International A ssociation of Maclisnssts, AFL-CIO, et W.
(Bryan Manufacturing Co) v. N.L R B , 362 U S. 411; Bowen Products Corporation,
113 NLRB 731.
2 Clause 81 is one of several clauses under the general topic heading "Seniority " An-
other clause under that topic (clause 74) which may be helpful in understanding clause 81
reads
Senioiitv shall be confined within the Departmental Branches, as defined herein, and
shall commence with the date of Company employment within a covered category
4 A prior contract in effect between April 1, 1957, and March 31, 1959, contained, in lieu
of the above provision, a clause 114 which states:
If the Company consolidates with or acquires another Union Company the seniority
of the Union member affected by such action shall be deemed to have been established
with the entity produced by the consolidation or acquisition.
Respondents proffered evidence, which was rejected, to the effect that in connection with
the settlement of unfair labor practice charges based on allegations that this and other
provisions of that contract were unlawful, the contract was revised to substitute the
clause now challenged and that the substituted clause was approved by personnel in the
Board's Regional Office. These assertions, if true, would not estop the Board from now
proceeding on charges which attack the legality of the current clause and would not deprive
employees of their right to remedial action if the clause is found illegal. N.L.R B. v.
Armstrong Tire and Rubber Company, 263 F. 2d 680, 682 (CA 5) ; A.P.W. Products Co,
137 NLRB 25, enfd. 316 F . 2d 699 (C.A. 2).
734-070-64-vol. 145-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in behalf of Respondent Company and other employers who signed it, as to his inter-
pretation of clause 81. However, after carefully reading that clause in the context
of the entire contract of which it is a part , I do not now regard it as ambiguous.
The term "Union Company," appearing in the first sentence of this provision , read in
the context of the contract-particularly the preamble, which recites that the Respond-
ent Union is "hereinafter referred to as the `Union ' " and that the employer signa-
tory to the contract is "hereinafter referred to as the `Company ' "-manifestly refers
to an employer signatory to the contract with Respondent Union .5 The challenged
clause 81 accordingly requires that in the event one company who has signed the Milk
Industry contract merges with or acquires another such company, the seniority
and category service of employees of the two companies shall be "established by
the entity produced by such merger or acquisition ." In other words, the seniority
of employees of the two companies would be integrated and the date of employment
in a covered category by one of such companies would be counted as the date of
employment in the entity produced by the merger or acquisition.
Respondent Company asserts that clause 81, on its face, is merely silent with respect
to the treatment to be accorded employees of non-"Union Companies " which might
be involved in a merger or acquisition and that such clause does not, therefore , require
disparate treatment of employees of "Union Companies " and non-"Union Com-
panies." The clear implication of clause 81 , however, is that employees other than
those of a "Union Company" shall not have their seniority or category service thus
integrated with the seniority or category service of "Union Company" employees.
Any integration of seniority or category service of employees from a non -"Union
Company" would be inconsistent with the guarantee of clause 81 that employees of a
"Union Company" would have their seniority and category service "established with
the entity produced by such merger or acquisition" of "Union Companies." Em-
ployees covered by the contract had a right to expect that after such a merger or
acquisition, they would, by reason of clause 81 , have greater seniority than employees
of a non-"Union Company" which a merger or acquisition might bring into the
bargaining unit . Indeed , as Respondent Union suggests in its brief , it seems reasonable
to conclude that any attempt by the acquiring "Union Company " or the merged
"Union Companies" to integrate the seniority or category service of employees of
such a non-"Union Company" so as to give them equal treatment, senioritywise,
with acquired or merged "Union Company" employees , would be in breach of the
contract.
The General Counsel contends that clause 81 by itself and in conjunction with
clause 74 of the Milk Industry Agreement discriminates on its face "between Union
and non-Union employees of the acquired companies ." The Union , in its brief,
seems to agree that premerger or preacquisition membership in Respondent Union-
rather than prior organization by or representation by Respondent Union-is the
basis for affording preferred treatment to employees . This is perhaps because the
Milk Industy Agreement contains a union-shop provision and, for practical purposes,
the distinction may appear to them as immaterial . I do not believe , however, that
either the General Counsel or Respondent Union would contend that if a single em-
ployee in a plant not previously represented by Respondent Union happened to be
a member of that Union , he would be treated differently than the nonmembers in
the same plant after acquisition by a "Union Company." In any event , a careful
reading of clause 81 in the context of the agreement convinces me that it is the
prior representation by Respondent Union under the agreement which requires the
preferred treatment here in issue.
The question , therefore , is whether the parties may lawfully contract to give such
preferred treatment in the new employer entity to those employees whom Respondent
Union represented prior to the acquisition or merger. Respondent Union argues that
since seniority rights are not inherent and come into existence only by reason of con-
tract or statute ( Trailmobile Company v. Whirls, 331 U.S. 40 ), employees not covered
by the Milk Industry contract had no lawful right to seniority with Respondent Com-
pany antedating their acquisition by Respondent Company and their coverage under
the contract , whereas employees covered by the contract on the date of acquisition did
by reason of such contract , have such seniority rights. This argument, it seems to
me, begs the question . There can be no quarrel with the proposition that a union and
employer may by contract grant seniority rights to employees represented by the
Union and it may also be conceded that a union , as a general proposition , has the
right , if not the duty, to get for those it represents the best contract it can. The fact
that a union may, through bargaining, obtain more favorable terms for those it rep-
5 This interpretation is confirmed by the testimony of Respondent Company's negotiator,
James Walsh , as well as by the testimony of Luke Kramer , business agent for Respondent
Union, who negotiated in the latter 's behalf
WHITING MILK CORPORATION 1043
resents than are enjoyed by employees for whom it is not the bargaining representa-
tive may encourage the latter to choose the Union as their bargaining representative
but this is not the type of encouragement which the statute meant to outlaw. Local
357, International Brotherhood of Teamsters, etc. v. N.L.R.B. (Los Angeles-Seattle
Motor Express), 365 U.S. 667, 675-676. The Union's right to obtain a good bargain
for those it represents is not, however, without limitations. It may not include in
its contract terms which impinge upon the statutorily protected rights of employees
whom it does not represent, such as by precluding the latter through individual bar-
gaining, or by other means, from obtaining comparable benefits for themselves.
Clause 81, here in issue, does, as I read it, preclude employees unrepresented by
Respondent Union from obtaining comparable benefits for themselves. Because, as
I have already demonstrated, that clause prevents Respondent Company from grant-
ing to employees not represented by Respondent Union prior to the merger or acquisi-
tion date seniority rights comparable to those it must, by reason of the contract,
grant to those represented by Respondent Union prior to that date, it is vulnerable
to attack. In thus creating superseniority rights for employees of "Union Companies,"
the clause necessarily interferes with the right of employees not to join or seek rep-
resentation by Respondent Union. And by discriminating against those employees
who, prior to a merger or acquisition, have exercised their statutorily protected right
not to join Respondent Union, the clause inherently encourages membership of
employees in Respondent Union.°
It is undisputed that this clause, which appeared in the contract in effect when
Respondent Company acquired the White plants, was readopted in the current
Milk Industry Agreement which, by its terms, is effective from April 1, 1962, until
March 31, 1964.7 I therefore find that by continuously maintaining clause 81 in
effect subsequent to March 19, 1962, the Section 10(b) cutoff date, Respondent
Union has violated Section 8(b)(1)(A) and (2) and Respondent Company has
violated Section 8(a)(1) and (3) of the Act.
Even if, as Respondent Company asserts, clause 81 is merely silent on the question
as to what seniority credit, if any, is to be accorded employees in the companywide
bargaining units who were not members of or represented by Respondent Union
prior to being employed by Respondent Company and even if it does not require
that such employees be denied any seniority credit for service with their former
employer, I would, nevertheless, conclude that the clause is discriminatory on the
face of the contract. Respondent Company's argument that clause 81 guarantees
to new employees previously represented by Respondent Union seniority credit for
service with their former employer, but leaves open for negotiation at the time of
acquisition the issue as to whether such seniority credit should be accorded to
employees not previously represented by Respondent Union, is only another way of
saying that the contract contemplates that disparate treatment, though not required,
is permissible. Otherwise, there would be no occasion for negotiation on this point.
Put a little differently, Respondent Company seems to be arguing that the contract
clause says to one group of employees who come into the bargaining unit, "You are
guaranteed seniority credit with Respondent Company for your past service with
your former employer because you joined the Union and were represented by it
prior to your employment with Respondent Company," and says to another group
who come into the bargaining unit, "You are not guaranteed any seniority credit
for your service with your past employer because you delayed joining the Union
and being represented by it until now." Thus, even Respondent Company's inter-
pretation of clause 81 would appear to make it discriminatory in that it guarantees
to one group of employees, and not to another, certain benefits based solely on their
past representation by Respondent Union.
Although in reaching the conclusion that clause 81 is unlawfully discriminatory
I have considered that clause in conjunction with other provisions of the collective-
bargaining agreement, I do not, of course, purport herein to pass judgment on the
validity or invalidity of any other provision. Nor, indeed, do I purport herein to
pass on the validity or invalidity of clause 81 in any respect except that alleged in
the complaint and litigated at the hearing.
C. The layoffs of Martin M. Walsh and Lester J. O'Neil
As already indicated, White, prior to its acquisition by Respondent Company on
June 1, 1961, operated five plants in different towns, four of which had been or-
ganized by Respondent Union and covered by the Milk Industry Agreement, and a
6 Cf. Radio Officers' Union etc. v. N.L.R.B., 347 U.S. 17, and N.L.R.B. v. Brie Resistor
Corp., 373 U.S. 221.
7 The Agreement recites that it was ratified by the union membership on June 28, 1962.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fifth at Hyannis, Massachusetts, which was unorganized and treated as a unit separate
and apart from the other plants and not covered by the contract. The parties, at
the hearing, referred to White as being a "Union Company" insofar as the four
organized plants are concerned and as a non-"Union Company" insofar as the
Hyannis plant is involved, and I shall so regard them for purposes of this proceeding.
The parties, on the other hand, have regarded the employees of all of Respondent
Company's plants as belonging in companywide units.8
Shortly after the June 1 acquisition by Respondent Company, Respondent Union
called a mass meeting of its members and explained to them the respective rights
under the Milk Industry Agreement of the former White employees from the or-
ganized plants and the other organized Respondent Company employees. Within
about 10 days or 2 weeks after the acquisition, union representatives also called a
meeting of the employees at the unorganized White-Hyannis plant.9 En route to
the meeting these representatives, including Business Agent Kramer, rode in a car
with Respondent Company's then director of labor relations and personnel, James
Walsh. According to the latter's credited testimony, after the union agents had
told him they were going to inform the White-Hyannis employees that, as required
by the union contract, they would have to join Respondent Union in 30 days, he
"asked the agents what their opinion was with respect to the seniority rights of the
former White . . . employees at Hyannis, and it was thrown right back at [him],
and [he] gave [his] opinion," which was to the effect that the White-Hyannis
employees were not entitled to have their seniority with Respondent Company
counted as of the beginning of their employment with White.io
The meeting with the employees was held in the score room of the plant. Labor
Relations Director Walsh and Local Plant Manager Bennett withdrew from the
meeting while union representatives addressed the employees. Among other things,
Business Agent Kramer told them that because they had not joined the Union prior
to the acquisition date, as they had a chance to do, their seniority with Respondentc
'Company would not be counted from the date of their employment with White but
would start with the date of acquisition, June 1. He explained that this "was ac-
cording to the contract." Management representatives returned to the meeting before
it was over and Labor Relations Director Walsh, upon being informed that union
representatives had said that the employees' seniority would start as of June 1, con-
firmed the accuracy of this report. He assured the employees, however, that there
was plenty of work for everyone and that instead of laying off any employees at
Hyannis, he expected to employ more people.ii I have no reason to doubt Walsh's
8In June 1962 the Board recognized the appropriateness of companywide units by direct-
ing an election in several of such companywide units composed of employees in different
categories at all of Respondent Company's plants. These plants consisted of those oper-
ated by Respondent Company prior to June 1, 1961-a processing and distribution plant
in Charlestown and distribution points in Marblehead, Watertown, Dorchester, Hyde
Park, and Hyannis-as well as the plants acquired from White on June 1, 1961, consisting
of a processing and distribution plant at Quincy and distribution points at Needham,
Duxbury, Hyannis, and Truro. See Whiting Milk Company, 137 NLRB 1143
9 Respondent Company, for a number of years prior to the acquisition, had also main-
tained a plant at Hyannis
"'I do not understand Walsh's asserted reasons for his decision, for after first testifying
that he had no argument about the Union's announced intention to require the former
White-Hyannis employees to join the Union in 30 days because that was "provided within
the contract," he further testified: "I told the Union Agents that in my opinion because
[Respondent Company] had maintained a branch at Hyannis for a number of years, which
was part of the contractual agreement with Local 380, and that because [White] had
segregated their operations at Hyannis from all other locations where they had a union
contract, that I felt it only fair, the only fair thing to do was to continue the practice
of [White], and that in my opinion these men were not entitled to seniority back to date
of employment with [White]. With this the Union agents concurred . . . .
11 The findings in the above paragraph are based upon the mutually corroborative and
credited testimony of employees Martin Walsh, Lester O'Neil, and Luther Perkins Busi-
ness Agent Kramer's version is to the effect that he told the employees that if they had
been a part of the bargaining unit prior to the acquisition, their employment with White
would be construed as employment with Respondent Company. I do not consider this as
a substantial variance in the testimony of the witnesses, for I am convinced that in the
context of the entire discussion, Kramer, whatever his precise words, was referring to the
contract provision guaranteeing superseniority to employees of "Union Companies" and
that the employees understood Kramer to be interpreting the contract. These occurrences
prior to March 19, 1962, the Section 10(b) cutoff date, are considered only as background
to shed light on the events occurring thereafter.
WHITING MILK CORPORATION 1045
sincerity in making this statement and am convinced that he did not make it for the
purpose of lulling the former White-Hyannis employees into a false sense of security
and thereby inducing them not to file unfair labor practice charges at that time.
It was almost a year later , in April 1962 , before any former White-Hyannis
employee felt any adverse effect from the placement of his name at the bottom of
the companywide seniority lists. Martin M. Walsh, an employee whose tenure at
the White-Hyannis plant dated back to May 5, 1955, was laid off on April 10, 1962,
when he was bumped by James Robinson, a former White-Quincy plant employee
whose tenure dated back only to January 30, 1961. Walsh was recalled on April 22,
1962, but was laid off again on December 14, 1962, when bumped by John Pierce, a
Respondent Company employee since June 11, 1960. Another former White-
Hyannis employee, Lester J. O'Neil, whose tenure dated back to October 29, 1955,
was laid off on April 21, 1962, when bumped by Sergio Almeida, a Respondent
Company employee since April 3, 1961. O'Neil was recalled on June 6, 1962, for
work during the summer season but was laid off again on October 28, 1962, and had
not been recalled by the date of the hearing in March 1963.
When laying off employees Walsh and O'Neil, Hyannis Plant Manager Bennett
made statements to the effect that their replacements had been in the Union longer
than they had and that if Walsh and O'Neil had joined the Union while working
for White they would not have been selected for layoff. These statements, as I view
them, were mere reiterations of the fact, already known to the employees, that
because of their lack of representation by the Union while employed by White,
they, unlike the other former White employees who were so represented, were
not given credit with Respondent Company for their prior service with White.
There is also testimony by Martin Walsh that Plant Manager Bennett, in January
1963, told him that he, Bennett, and Arnold Bullock, president of Respondent
Company, had a telephone conversation that day in which both agreed that they
wanted to give the former White-Hyannis employees their "full seniority" but that
the Union would not permit it. This testimony stands uncontradicted in the record
and I credit it. The statement of Bennett is hearsay as to Respondent Union, how-
ever, and I do not infer from Bennett's statement that Respondent Union was ap-
proached and expressed itself on the seniority issue on any occasions other than
those already described . Bennett's statement to Walsh does indicate , however, that
as late as January 1963 Respondent Company reconsidered its June 1961 decision
with respect to seniority of the former White-Hyannis employees and would have
been willing to modify that decision but for its assumption that the Union would
not go along with such a change . In view of clause 81 of the Milk Industry Agree-
ment, this was perhaps a reasonable assumption.
As I view the evidence, the layoffs of Walsh and O'Neil in April 1962 and there-
after occurred as a result of clause 81 of the Milk Industry Agreement which re-
quired Respondents discriminatorily to place Walsh and O'Neil and other former
White-Hyannis employees at the bottom of the companywide seniority lists and
continuously thereafter to maintain their inferior seniority status.12 Because of
the limitations proviso of Section 10 (b) of the Act, I do not find Respondents' action
in placing the employees at the bottom of the seniority lists in June 1961 to be
an unfair labor practice . I do find, however, that Respondents ' action in April
1962 and thereafter (within the Section 10(b) period ) in laying off Walsh and
O'Neil was the result of Respondents ' continuous maintenance and enforcement of
the unlawful contract provision and that Respondent Union thereby violated Section
8(b) ( I ) (A) and (2 ) and Respondent Company thereby violated Section 8(a) (1)
and (3 ) of the Act.
In view of my finding above , based upon the illegality of clause 81 of the con-
tract , I find it unnecessary to, and do not, decide whether, if that clause were not
illegal on its face or on the face of the contract , conduct of either Respondent
^ At the hearing, Respondents sought to show that prior to the acquisition date, em-
ployees at the White-Hyannis plant had no legally enforcible seniority rights I regard
this factor as immaterial, however, for clause 81 in requiring an employer signatory to
the contract to grant superseniority rights to employees represented by Respondent Union
prior to an acquisition or merger , does not distinguish between other employees on the
basis of whether they had any legally enforcible seniority rights with their former em-
ployer. Respondent Union concedes as much when it states in its brief: "Accordingly, as
seniority is established by contract and is not inherent, it is clear that all non-Local 380
[Respondent Union] employees of the other company would have no contractual seniority
rights upon it merger or acquisition . This group of non -Local 380 employees could include
non-Union, Union or even members of another Teamster Local. In any event, if they do
not belong to Local 380, they have no enforceable or contractual seniority rights."
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the Section 10(b) period might independently be construed as in violation
of the statute.
One other contention made by the General Counsel calls for a ruling. He asserts
that following the acquisition by Respondent Company of the White plants and
employees, Martin Walsh and other former White-Hyannis employees were dis-
criminatorily deprived of a right they previously enjoyed of selecting the time for
their vacations on a seniority basis because they had not been members of Respond-
ent Union as long as some other employees in their categories. The evidence on this
point was inconclusive, but if there was any discrimination involved, it would seem
to flow from the discriminatory fixing of the employees' seniority and category
service status pursuant to clause 81 and the application of clauses 150 and 153
of the current Milk Industry Agreement which apparently permits preferences for
vacation times on a seniority basis. A remedial order requiring the discontinuance
of the discriminatory requirement with respect to seniority and category service
status should also incidentally remedy any discriminatory treatment of employees
with respect to their vacation choices.
CONCLUSIONS OF LAW
1. Respondent Union and Respondent Company have violated Section 8(b) (1) (A)
and (2) and Section 8(a)(1) and (3) of the Act, respectively, by continuously,
since March 19, 1962, maintaining and giving effect to a contract term which, on
the face of the contract, requires discrimination against employees on the basis of
their prior lack of representation by Respondent Union.
2. Respondent Company has violated Section 8(a)(3) and (1) of the Act by
laying off employees Martin M. Walsh and Lester J. O'Neil pursuant to the require-
ments of an unlawfully discriminatory contract term, and Respondent Union has
violated Section 8(b)(1)(A) and (2) of the Act by causing Respondent Company
to lay off said employees.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents violated the Act, my Recommended Order will
require them to cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It having been found that Respondents , since March 19, 1962 , have maintained
and enforced a provision in their collective-bargaining contract which unlawfully
requires discrimination against employees not previously represented by Respondent
Union at the time of a merger or acquisition, my Recommended Order will require
that Respondents cease and desist from giving effect to this discriminatory feature
of said provision and eliminate said provision from the contract or revise it so
that it will not require disparate treatment of any employee on the basis of his
premerger or preacquisition representation by Respondent Union. It will further be
recommended that Respondent Company revise its seniority rosters so as to elimi-
nate any element of discrimination against Respondent Company's present employees
based upon the application of that unlawful provision. Although Walsh and O'Neil
were the only employees shown by the record to have felt any adverse effect as a
result of the application of the discriminatory contract provision, other employees
who were working for non-"Union Companies " prior to their acquisition by Re-
spondent Company were similarly situated and may feel such adverse effects in
the future if the seniority rosters are not revised as herein required.
To remedy the discriminatory layoffs of Walsh and O'Neil, my Recommended
Order will require Respondent Company to offer them reinstatement to the same
employee status, rights, and privileges they would have enjoyed but for the dis-
crimination against them.13 Respondent Union , jointly with Respondent Company,
will be required to make them whole for any loss of pay suffered by reason of such
discrimination. Such backpay shall be computed on a quarterly basis, as provided
by the Board in F. W. Woolworth Co., 90 NLRB 289, and interest at the rate of
6 percent per annum shall be added. See Isis Plumbing & Heating Co., 138 NLRB
716 and Reserve Supply Corp. v. N.L.R.B., 317 F. 2d 785 (C.A. 2).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case , it is recommended that:
13 Of. Filtron Company, Inc., 134 NLRB 1691, 1712 , enfd . 309 F. 2d 184 (C.A. 2).
WHITING MILK CORPORATION 1047
A. The Respondent Whiting Milk Corporation, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Maintaining or giving effect to any provision of a collective-bargaining agree-
ment with Respondent Union which discriminates against any employee with respect
to seniority or category service rights with Respondent Company on the basis of
his prior lack of membership in or representation by Respondent Union.
(b) Encouraging membership of employees in Respondent Union by laying them
off or otherwise discriminating in regard to their hire or tenure of employment or
any term or condition of their employment on the basis of their prior lack of
membership in or representation by Respondent Union.
(c) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of their rights guaranteed in Section 7 of the National Labor
Relations Act, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Eliminate from its collective-bargaining agreement with Respondent Union
any provision requiring preferential treatment of employees on the basis of their
membership in or representation by Respondent Union prior to becoming employees
of Respondent Company.
(b) Revise its seniority or category service rosters so as to eliminate any element
of discrimination against its employees based upon whether they were members of
or represented by Respondent Union prior to becoming employees of Respondent
Company.
(c) Offer to Martin M. Walsh and Lester J. O'Neil immediate reinstatement to the
same employee status, rights, and privileges they would have enjoyed but for the
discrimination against them and, jointly and severally with Respondent Union, make
them whole for any loss of earnings suffered as a result of such discrimination, all
in the manner more particularly described in the section of the Intermediate Report
entitled "The Remedy."
(d) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all records necessary for the
determination of the amount of backpay due under the terms of this Recommended
Order.
(e) Post at each of its plants copies of the attached notice marked "Appendix
A." 14 Copies of said notice, to be furnished by the Regional Director for the First
Region, shall, after being duly signed by a representative of Respondent Company,
be posted immediately upon receipt thereof in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set forth in (e)
above, as soon as they are forwarded by the Regional Director, copies of the Re-
spondent Union's attached notice marked "Appendix B "
(g) Notify the Regional Director for the First Region, in writing, within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps
it has taken to comply therewith.is
B. The Respondent Milk Wagon Drivers & Creamery Workers Union, Local 380,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its officers, representatives, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Maintaining or giving effect to any provision of a collective-bargaining agree-
ment with Respondent Company which discriminates against any employee with
respect to seniority or category service rights with Respondent Company on the basis
of his prior lack of membership in or representation by Respondent Union.
14 If this Recommended Order should be adopted by the Board, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" In the notice If the Board's Order should he enforced by a decree of a United
States Court of Apneals, the words "A Decree of the United States Court of Appeals,
Enforcin; an Order" shall be substituted for the words "A Decision and Order."
15 If this Recommended Order should be adopted by the Board, this provision shall be
modified to read- "Notify the said Regional Director, in writing, within 10 days from
the date of this Order, what steps have been taken to comply herewith "
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Causing or attempting to cause Respondent Company to lay off or otherwise
discriminate against any of its employees in violation of Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing employees of Respond-
ent Company in the exercise of their rights guaranteed in Section 7 of the Act, ex-
cept to the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Eliminate from its collective-bargaining agreement with Respondent Com-
pany any provision requiring preferential treatment of employees on the basis of
their membership in or representation by Respondent Union prior to becoming
employees of Respondent Company.
(b) Jointly and severally with Respondent Company, make whole Martin M.
Walsh and Lester J. O'Neil for any loss of pay suffered by reason of the discrimina-
tion against them, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(c) Post at its offices, in conspicuous places, copies of the attached notice marked
"Appendix B." 16 Copies of this notice, to be furnished by the Regional Director
for the First Region, shall, after being duly signed by a representative of Respond-
ent Union, be posted immediately upon receipt thereof and be maintained for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken by Respond-
ent Union to insure that these notices are not altered, defaced, or covered by any
other material.
(d) Additional copies of this notice, to be furnished by said Regional Director,
shall, after being signed by a representative of Respondent Union, be forthwith re-
turned to the Regional Director for posting by Respondent Company, as required
above.
(e) Post at the same places and under the same conditions as set forth above,
as soon as they are forwarded by the Regional Director, copies of the attached notice
marked "Appendix A."
(f) Notify said Regional Director, in writing, within 20 days from the receipt of
this Intermediate Report, what steps have been taken to comply therewith.'''
16 See footnote 14
17 See footnote 15
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, you are notified that:
WE WILL NOT maintain or give effect to any provision of our collective-
bargaining agreement with Milk Wagon Drivers & Creamery Workers Union,
Local 380, which discriminates against any employee with respect to seniority
or category service rights on the basis of his prior lack of membership in or
representation by said union.
WE WILL NOT encourage membership of our employees in said union by
laying them off or otherwise discriminating in regard to their hire or tenure
of employment or any term or condition of their employment on the basis of
their prior lack of membership in or representation by said union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist unions, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from such activities,
except to the extent that such right may be affected by an agreement requiring
union membership as a condition of employment, as authorized in Section
8(a)(3) of the National Labor Relations Act.
WE WILL eliminate from our collective-bargaining agreement with the Union
any provision requiring preferential treatment of employees on the basis of
their membership in or representation by the Union before becoming our
employees.
WE WILL revise our seniority or category service rosters so as to eliminate
any element of discrimination against our employees based upon whether they
were members of or represented by the Union prior to being employed by us
WHITING MILK CORPORATION 1049
WE WILL offer to Martin M. Walsh and Lester J. O'Neil immediate reinstate-
ment to the same employee status, rights, and privileges they would have en-
joyed but for our discrimination against them, and we will, jointly and
severally with the Union, make them whole for any loss of earnings suffered
by reason of the discrimination against them.
WHITING MILK CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. Lafayette 3-8100, if they have any question concerning this notice or
compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT maintain or give effect to any provision of our collective-
bargaining agreement with Whiting Milk Corporation which discriminates against
any employee with respect to seniority or category service rights with Whiting
on the basis of his prior lack of membership in or representation by our Union.
WE WILL NOT cause or attempt to cause Whiting to lay off or otherwise dis-
criminate against any of its employees in violation of Section 8(a)(3) of the
National Labor Relations Act.
WE WILL NOT in any like or related manner restrain or coerce employees
of Whiting in the exercise of their right to self-organization, to form, join, or
assist unions, to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of collective-bargaining
or other mutual aid or protection, or to refrain from such activities, except to
the extent that such rights may be affected by an agreement requiring union
membership as a condition of employment, as authorized by Section 8(a)(3)
of the National Labor Relations Act.
WE WILL eliminate from our collective-bargaining agreement with Whiting
any provision requiring preferential treatment of employees on the basis of
their membership in or representation by our union prior to being employed
by Whiting.
WE WILL, jointly and severally with Whiting, make whole Martin M. Walsh
and Lester J. O'Neil for any loss of pay suffered by reason of the discrimination
against them.
MILK WAGON DRIVERS & CREAMERY WORKERS
UNION, LOCAL 380, A/W INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA,
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, Boston
Five Cents Saving Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. Lafayette 3-8100, if they have any question concerning this notice or
compliance with its provisions.