A.P.A. Transport Corp.

National Labor Relations Board - Board Decisions

Jan 19, 1979

239 N.L.R.B. 1407 (N.L.R.B. 1979)

Corp. mot~on t h e N;~tiorlal L.ahor
Summar) Judgment
Michael era1 suhniits.
145
allegation5 (1)
presumptively ur~der Dairylea
lnr..' hec;rusc
' and 12)
an)
Oil Janui~ry
that A.P.A. Transport Gorp.. herein A.P.A.. and Lo- and that the ~~~~d issue an order requiring
lr Respondents to cease maintaining and to delete the
of sulrrsen,ority cla,se insbfar as it extends beyond
herein Local 6177 had violated Section 8(a)(l) and ( 3 ) layclff and recall, appropriate notices, and to
and Sectior 8(bHIHA) and (2)+ Of the take such other just and proper relief as the Board
P.elations may deem appropriate.
5. On August 20. 1976, the Board issued an order
Director lor Region 22 informed the Charging transferring Be proceedings to the Board and a
I, To Show Cause $hy the General Counsel.s Mo-
with respect to the contention lhat for Summary Judgment should not be granted.
had been enforcing the superseniority Subsequently, Respondents filed a brief in
lion to the Motion for Summar). Judgment. con-
manner the over-the-road stew- ending, in substance, (I) that the facial validity of
ard to bid his route ahead Of the Charging article 42 with regard to layoff, rehire, and bidding is
established by Diaryka and the Regional Di-
the over-the'road steward such a How- rector's dismissal letter; that since the present
he stated that. xttlementq a 'Om- Dairylea
legal at the time executed and no violation
illvalid
On 21* 1976y the Regiona1 Director an face when read in conjunction with the saving provi-
in the contract.
upon the entire record in this proceeding, the
eng~ged Board makes the following:
afft,cting meaning
8(a)(l) (3), 8(b)(l)(A) (2),
i(6) (7) ~ ~ l i ~ ~ on the ~~~i~~ for summary ~~d~~~~~
for all
purposes including rehire, bidding, and of
8(b)(l)(A)
Subwquent'~ the answers' in sub- and Section 8(a)(3) and (1) of the Act.' Even thou@ admitting the violation found in Dairy,ea involved
the 'iolation 617 lurther an- as well as maintenance of a supersenio"ty dause, the
because the 'lause had been in
swered that the complaint should be dismissed (I)
successive
7219 (1975). F.ld Clr.
:Ontracts for at least 20 years; (2) because of the he equivalent the '.recall" Darn.lea and
Acting Regio la1 5 dismissal letter; provis~on the supersenior~~y c laux at
'The brlef
lnd (3) the cornplaint' maintenance
Truck L'nion 807, lnrernarional Brorherhd qf
)f COntriiCt language but no implementation xrers, chaujfeurs. Warehoucemen and of ~ m e r i c ~ (While Rork
of Act. a8e.v. Inr.). N L R B (1973). enforcement denled 506 F.2d
Thereafter, 3n August 1976, the ~~~~~~l Coun- (2d Cir. Nu.Car Inc.. 187 nonl. Rosen 455 F.2d Oschenvir:. er
d1h.a Oscherwir: and 130 1078. 1079 (1961).
*. ..
,.I i . . , 4 .-
L ,.'# / -
A.P.A. TRANSPORT CORP. 1407
A.P.A. Transport and Michael R. Balice D.C., a to Relations
Board for and a memorandum
Chauffeurs, Warehousemen and Helpers of Amer-
ica and R. Balice. Cases 22-CA­-6760 and Counsel in effect, that the pleadings
22­CB­3 herein demonstrate that there is no genuine issue as
to any in the complaint since article 42
January 19. 1979 is invalid Cooperative
i t extends superseniority beyond layoff
DECISION AND ORDER
and recall the Respondents have not pre-
sented justification for the extension in rebuttal
of tht presumption of illegality. Accordingly. he re-
13. 1976, charges were filed alleging quests that the Motion for Summary Judgment be
cal 617. ternational Brotherhood of Teamsters.
Chauffeurs. Warehousemen and Helpers America.
National Labor Act, as amended. By a dis-
missal letter dated May 1975. the Acting Regional
No-
that he was refusing to issue a complaint because.
tion
opposi-
clause in their collective-bargaining contract in an
the investigation had revealed necessity for granting
preference. (2)
contract predated the language of article 42
plaint would issue alleging that the clause was pre-
sumptively on its face. should be found; and (3) that article 42 is legal on its
order consolidating cases, complaint, and notice of
sionhearing alleging that Respondents A.P.A. and Local
617 have in and are engaging in unfair labor
practices commerce within the of
Section and Section and
and Section and of the Act. by maintaining a
collective-bargaining contract providing in article 42
thereof that: It is well settled that. contrary to Respondents'
Stewards shall be granted super-seniority contention. mere maintenance of a contract clause
layoff, discriminatory on its face, without evidence dis-
job preference. criminatory enforcement or implementation, is suffi-
cient to find a violation of Section and (2)
stance the maintenance of article 42 but
YLRB 656 enfd. 531 1162 (2d 1976).
parties treat as term used in the
Director's May "rehire" of issue herein.
was tiled by Local 617 and adopted by A.P.A.
Drivers Local No. Team-
the Helpers Bever-
hereof, did not set forth a violation the 207 259. 263 1382
1974). Curriers. NLRB 850 (1971). enfd. sub
v. N.L.R.B.. 615 (3d Cir. 1972): Max B. al..
el, by counsel, filed with the Board in Washington, I . Sons. N L R B
. , ,
,
~-~ ~. ~ - - - -- - - ~- --
colleagues Dairylea
illegal
imples mere
Duir19-
lea
Dairvlea.
separite
It?dustrial
i.e..
ble
tion
grievances
sumption
spondent's
employee^.^
sionary
tion
prevision
refus-
the
tion
ju~tif ied.~
lawful
to
e ~ t e n t . ~ 8(a)(3) 8(b)(l)(A)
-- ' Dairylea. 658.
that IS when it is alleged that there are no litigable mt ters
superseniority requiring a hearing. A respondent who wishes a hear-
Dar