Auto Workers Local 1161 (Pfaudler Co.)

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1411 (N.L.R.B. 1984)

AUTO WORKERS LOCAL 1161 (PFAUDLER CO.)
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, Local Union No.
1161 and Pfaudler Company, a Division of Ken-
necott Corporation. Case 8-CB-5036
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 23 March 1984 Administrative Law Judge
Norman Zankel issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel and the Charging Party
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the United Automobile,
Aerospace and Agricultural Implement Workers of
America, Local Union No. 1161, its officers,
agents, and representatives, shall take the action set
forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. This
case was tried before me on January 18 and 19, 1984, at
Cleveland, Ohio. The charge was filed by the Charging
Party on August 15, 1983.1 The complaint was issued on
September 28.
The complaint alleges that the Union violated Section
8(b)(l)(A) and (2) of the National Labor Relations Act
(the Act) by unlawfully maintaining and seeking to en-
force a contractual provision in its collective-bargaining
agreement with Pfaudler Company (the Employer)
which grants superseniority to the Union's recording sec-
retary.
I All dates hereafter are in 1983, unless otherwise specified.
271 NLRB No. 224
On the entire record, including my observation of the
demeanor of the witnesses2 and after consideration of the
briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a New York corporation, at all materi-
al times, maintained an office and place of business in
Elyria, Ohio, where it was, and is, engaged in the manu-
facture of process equipment. Annually, the Employer
sold and shipped products, goods, and materials in excess
of $50,000 in value directly from that facility to points
outside Ohio. The answer admits, the record reflects, and
I find, the Employer is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
The answer admits, the record reflects, and I find the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the Union has maintained a superseniority
clause which is unlawful under Gulton Electro-Voice, 266
NLRB 406 (1983)3
2. Whether the Union violated Section 8(bXl)(A) and
(2) of the Act by unlawfully attempting to apply and en-
force a contractual superseniority provision with respect
to its recording secretary.
3. Whether the instant proceeding is time-barred by
Section 10(b) of the Act.
4. Whether a grievance filed on behalf of the Union's
recording secretary should be deferred to arbitration.
B. The Facts
Background
At all material times, the Union has been exclusive
contractual collective-bargaining representative for all
the Employer's production and maintenance employees.
The most recent collective-bargaining agreement, effec-
tive July 30, 1981, to July 30, 1984, includes, inter alia,
the following provisions which, in relevant part, provide
Article III-Representation-The Union shall be
represented by a Union Committee of Seven (7)
members, including the President, Recording Secre-
tary, and five (5) Zone Committee Members.
Article IX-Seniority. Paragraph 40
Members of the Union Committee . . . shall head
the seniority lists in their respective classifications.
. . .Such preferential seniority will not be used by
the Company or the Committee Members for pro-
motions or transfers ...
2 Upon the General Counsel's motion, all witnesses were sequestered.
3 Enfd. sub nom. Electrical Workers Local 900 v. NLRB, 115 LRRM
2760 (D.C. Cir. 1984).
1411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the above provisions, Pauline Markel, the
Union's recording secretary, had been accorded super-
seniority through the contract's term until August 5. On
that date, the Employer terminated Markel's supersenior-
ity. This was done as a result of the Employer's receipt
of a July 21 letter from Warren Davis, the International
UAW's district director. That letter declared "[T]he
Union hereby gives notice . . . [it] . .. .will not seek en-
forcement of the superseniority clause . .. for any Local
Union executive board officer other than the president
and vice president, unless involved in contract adminis-
tration duties." The letter continued, "The Union does
not object to the recall of those affected employees who
are currently on lay off as a result of the application of
superseniority to the . . . [Union's] . . . Treasurer, Re-
cording Secretary, Financial Secretary, Guide, Trustee,
Sergeant-at-Arms, or executive board at large positions."
There is no question Davis' letter was provoked by issu-
ance of the Board's Gulton Electro- Voice decision.
On August 5, Markel was informed she would be in
layoff status effective August 8. Simultaneously, the Em-
ployer recalled another employee, Jim Huffman, from
layoff. Huffman enjoyed natural seniority superior to
Markel.
On August 9, Markel filed a written grievance (Jt.
Exh. 5). The grievance charged the Employer with a
violation of the superseniority provision, and demanded
Markel's recall to work and that she be made whole.
The grievance was denied as not comprising a lawful
subject. At this writing, the grievance has not been with-
drawn, nor has it been submitted to arbitration.4
The union committee (defined in art. III, supra) is an
integral part of the contractual grievance procedure.
(Art. III, par. 7, Jt. Exh. 3.) First- and second-step griev-
ances are processed by individual zone committeepersons
(art. X, Jt. Exh. 3). Regularly scheduled joint union-man-
agement meetings are conducted monthly. Step-three
grievances are considered during those meetings. The
forth grievance step is processed by the union committee
as a whole with a representative of the International
UAW.
The general duties of the Union's recording secretary
derive from the Union's constitution and bylaws. The
constitution provides:
Article 40-Duties of Local Union Officers: Re-
cording Secretary
Section 3. It shall be the duty of the Recording
secretary to keep a correct record of the proceed-
ings of the Local Union, sign all orders on the
treasury authorized by the Local Union, read all
documents and conduct the general corresponsence
received by the Local Union which does not per-
tain directly to the duties of the other officers of the
Local Union and keep same on file for future refer-
ence. The Recording Secretary shall bring to the at-
tention of the membership of the Local Union any
correspondence upon which the membership must
4 Apparently, the grievance was processed only through the third step
of a four-step grievance procedure preceding arbitration. The fourth step
must be invoked within I month from the written step-three response.
Markel's grievance was answered, in step three on August 16.
take action. The Recording Secretary shall comply
with the provisions of Article 50, Sec. 2. The Re-
cording Secretary shall furnish to the Research De-
partment of the UAW and to its Regional Director,
every six (6) months (January and July): (1) Three
(3) copies of the existing contract(s); (2) A complete
revised list of all classifications and rate for the
plant or plants covered by the contract(s); (3) Any
additional information gained through negotiations
with the respective plant management that may be
useful to other Local Unions in their collective bar-
gaining.
The constitution invests the recording secretary with
additional duties. Thus, under article 33, the membership
has the right to appeal any action of the local union, in-
cluding action on grievances. Article 33, section 3(a)
provides that a member's appeal be initiated by provid-
ing a written statement of the local Union's recording
secretary, who then presents the appeal for consideration
by the executive board as a whole. The recording secre-
tary is also required to inform the member of any execu-
tive board action on his appeal and to advise him of the
right to appeal that action.
Also, article 31, section 2 provides that any charges
against a UAW member for violations of the constitution
or for any conduct "unbecoming a member" be submit-
ted to the local recording secretary. Such charges are
then considered by the local union executive board. Be-
cause the local recording secretary is a member of the
local executive board, he or she is involved in the initial
disposition and appeal of a wide variety of disputes
under articles 31 and 33. Finally, article 50, section 4 and
5 of the constitution prohibits a local union from engag-
ing in a strike without first obtaining the International's
authorization and approval by a majority vote of the
local union members voting at a special meeting called
for such purpose. The recording secretary is responsible
for providing notice to the membership of such special
meeting. Also, under article 50, section 2, the recording
secretary is also required to prepare a written statement
of unresolved contract issues to submit to the Interna-
tional to support a request for strike authorization.
The Union's bylaws provide:
Article XI - Duties of Officers:
Section 3. RECORDING SECRETARY. It shall
be the duty of the Recording Secretary to keep a
correct record of the proceedings of the Local
Union, sign all orders on the Treasurer authorized
by the Local Union, keep them on file for future
references. He or she shall execute quarterly report
to the International Secretary-Treasurer on blanks
furnished by the International Union for that pur-
pose. He or she shall perform such duties as are re-
quired by the Constitution of the International
Union.
Also, article IV, section 3 of the bylaws directs the re-
cording secretary to notify the union membership of the
time and place of all special membership meetings.
1412
AUTO WORKERS LOCAL 1161 (PFAUDLER CO.)
The parties' collective-bargaining agreement, in article
III, paragraph 4 designates the recording secretary as a
member of the union committee which serves at the
monthly union-management meetings.
2. Markel's actual functions5
Markel served two terms as recording secretary, for a
6-year total. The parties presented considerable conflict-
ing evidence regarding Markel's actual functions in that
capacity. Markel testified. Generally, I found her re-
sponses to questions initially vague. Her testimony was
conclusionary and generalized, until pressed toward pre-
cision. William Reynolds, the Union's president at the
time of the hearing and union committeeperson in 1967-
1969, presented to testify by the Union, exhibited a tend-
ency to exaggerate. For example he testified he needs the
advice of the recording secretary "everyday," though
Markel herself had testified she could recall only a single
instance of consultation with him. Also, Reynolds testi-
fied (to show a need for Markel's in-plant presence) that
she was essential to preparing agendas for forthcoming
union-management meetings; yet, when pressed, Reyn-
olds admitted he made no effort to contact her to per-
form that function since her layoff. Union committeeper-
son Losha Zirkle was presented by the Union to testify
as to the functions of such officials. Among the employ-
ee witnesses presented by the Union," Zirkle was the
most impressive. She was candid and forthright through-
out her testimony. Much of her testimony, however, was
devoted to describing the functions of the zone commit-
teepersons in, and the mechanics of, grievance process-
ing. I find Zirkle's testimony of little probative value rel-
ative to the issue of Markel's required functions. Markel
was not a zone committeeperson, except for one day, 5
years before the hearing, when she was so formally des-
ignated. 7
The General Counsel's witnesses were the Employer's
industrial relations manager Richard Franklin; Plant Op-
erations Manager Timothy Fout; and General Foreman
Robert Bove. In contrast to the presentations of Markel
and Reynolds, I found Franklin, Fout, and Bove more
comprehensive, direct, concise, and precise. They were
unshaken when cross-examined. Their testimony is sup-
ported, in many instances, by the testimony of the
Union's witnesses. Wherever conflicts exists, I credit
Franklin, Fout, and Bove.
Markel testified she performed duties as recording sec-
retary in addition to those specified in the union's consti-
tution and bylaws. Thus she claimed she solved employ-
ee work-related problems on the shop floor, consulted
s Not every bit of evidence, nor argument of counsel, is discussed.
Omitted material has been considered, but deemed irrelevant, superfluous,
or of little probative value.
s International Representative Carl Cross also testified on behalf of the
Union to show the recording secretary functioned in preparation for col-
lective-bargaining negotiations. Cross acknowledged that he can commu-
nicate, and has communicated, with Markel after her layoff for that pur-
pose. In sum, I find Cross' testimony sheds no light on Markel's in-plant
functions.
I The five zone committeepersons are expressly designated as the in-
plant representatives of the unit employees. (art. III (V), (VI), and (VII),
It. Exh. 3.) In their absences, grievances are to be processed by the
Union president or his designee (Jt. Exh. 3, art. III (7)).
with employees regarding their grievances, carried infor-
mation with her which is used by zone committeepersons
and other union officers in grievance handling, posted
union notices, and kept minutes of union-management
meetings.
Examination of Markle's testimony regarding each of
these additional factors is illuminating. Concerning prob-
lem-solving on the shop floor, she first testified that em-
ployees "normally" would seek her for assistance in solv-
ing their work-related problems. When asked to describe
the frequency of such activity, Markel said those situa-
tions occurred "a lot of times." Later, she conceded it
occurred on "a very irregular basis." When asked to
detail the instances she performed such function, Markel
identified only two occasions within the past 4-1/2 years
which she claimed involved consultations on behalf of
employees with management officials. One of those inci-
dents took place when she had been formally designated
as alternate zone committeeperson. She acknowledged
she was then acting in the stead of the absent regular
zone committeeperson, and not in her capacity as record-
ing secretary. The second incident involved a joint meet-
ing among zone committeeperson Zirkle, Plant Manager
Fout, and Markel. Zirkle and Markel approached Fout
to discuss an attendance problem of another employee.
They told Fout they wanted a chance to work with that
other employee to assist her in resolving her problems.
They asked for Fout's cooperation. Fout was advised
that he was not being consulted on official union busi-
ness. The subject matter of their discussion was not con-
tained within any grievance then pending, nor did it later
become the subject of a grievance.
Markel presented no other examples of her claimed
problem-solving function. She agreed she generally has
not directly processed grievances and that she had not
been designated as alternate zone committeeperson for
over 2 years.
With respect to Markel's asserted consultation with
employees on grievances, she first testified those situa-
tions occurred "a lot" of times. She described, however,
only two such conversations. As a result of each consul-
tation, Markel directed the complaining employee to his
zone committeeperson. The record shows that employee
complaints are received by zone committeepersons fre-
quently, ranging from twice a week to daily.
In connection with the claim Markel carried docu-
ments with her used by union officials, she testified those
documents included past grievances and notes, minutes
of management-union meetings over a 2-year period, and
the union constitution. When asked to describe how
these documents were used by the zone committeeper-
sons, Markel admitted she had no recollection of any
zone committeeperson asking to refer to the notes of
union-management meetings, and recalled only two occa-
sions when she was asked for information on prior griev-
ances. On each of these latter occasions, the needed in-
formation was not in her briefcase. Markel had to go to
the union hall during lunch hour in one of those inci-
dents, and after work in the other, to procure the re-
quested information.
1413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding notice posting, Markel testified she posted
notices of monthly membership meetings, formal ap-
pointments of alternate zone committeepersons, and mis-
cellaneous other matters of general interest, on the Em-
ployer's bulletin board. Prior to her layoff, Markel gen-
erally was at work to perform this function. In her ab-
sence, required notices had been posted by the union
president. Since Markel's layoff, she acknowledged she
sometimes visited the shop to post notices without the
Employer having attempted to deny her plant access or
otherwise prevent her from posting them.
Relative to Markel's minute-keeping during union-
management meetings, the evidence shows those meet-
ings are held during working hours (Jt. Exh. 3, art. III
(9)). The primary purpose of those meetings is to discuss
and consider grievances. Markel agreed her principal
function during those meetings was to record the pro-
ceedings. The Union's president was principal spokesper-
son. Zone committeepersons take part in discussions
during consideration of grievances which involve em-
ployees within their zone.8 Notes of these meetings are
also made by one of the Employer's representatives
present. It is the latter's notes which become the official
minutes, copies of which are ultimately distributed to
each member of the seven-member union committee.
Generally, I week's advance notice of the union-man-
agement meetings is provided participants. Markel testi-
fied she continued to keep minutes of those meetings
after her layoff, and admitted that it is not necessary for
her to be in the shop in order to do so.
Occasionally the union committee (including the re-
cording secretary) caucuses, out of the presence of the
management officials, to consider and vote on its position
regarding grievances. As a member of the union commit-
tee, Markel casts a vote. When the meeting reconvenes
jointly with management, it is the union president who
announces the Union's position. Markel, as recording
sec'retary, never has made that announcement.
C. Analysis
1. The superseniority clause maintenance and
enforcement
The plain language of the contractual superseniority
clause in question undeniably grants such status to the
Union's recording secretary.
In Gulton Electro-Voice, supra, the Board announced
the test by which it would determine whether supersen-
iority grants to union officials would be lawful. Thus, the
Board stated, "We will find unlawful those grants of su-
perseniority extending beyond those employees responsi-
ble for grievance processing and on-the-job contract ad-
ministration. We will find lawful only those supersenior-
ity provisions limited to employees who, as agents of the
union, must be on the job to accomplish their duties directly
related to administering the collective-bargaining agree-
ment. " Gulton, supra at 409. (Emphasis added.)
This standard has been applied consistently in subse-
quent cases. See Inmont Corp., 268 NLRB 1442 (1984);
s The shop is divided into five zones, each of which is serviced by a
specific zone committeeperson.
Hubble, Inc., 268 NLRB 620 (1984); Electrical Workers
IUE Local 826 (Otis Elevator), 268 NLRB 180 (1983);
Niagra Machine & Tool Works, 267 NLRB 661 (1983);
and Auto Workers Local 561 (Scovill), 266 NLRB 1056
(1983).
Two elements must exist for a superseniority grant to
be lawful. The union official desiring such status must (1)
be responsible for grievance processing or other matters
directly related to administering the labor agreement,
and (2) demonstrate that on-the-job plant presence is re-
quired to perform those activities. Auto Workers (Ex-
Cell-O Corp.), 268 NLRB No. 206, slip op. 4-5 (1984)
(unpublished).
Superseniority is inherently discriminatory. Gulton,
supra at 407; Dairylea Cooperative, 219 NLRB 656 (1975),
enfd. sub nom. Teamsters Local 338 v. NLRB, 531 F.2d
1162 (2d Cir. 1976).
The contract clause in this case, on its face, satisfies
the requirements of the General Counsel's prima facie
case. The burden thus shifts to the Union to demonstrate
that its recording secretary is required to perform griev-
ance and on-the-job contract administration activities.
The totality of credited evidence persuades me this
burden has not been met.9
Disposition of the underlying issue depends on resolu-
tion of the factual question: Do the duties and activities
of recording secretary involve such matters of grievance
processing and contract administration that require that
official's in-plant presence? To answer this question re-
quires analysis of the constitutional duties, obligations
and responsibilities, as well as the functional activities of
the recording secretary.
The applicable constitution and bylaw provisions, in
my view, do not mandate the recording secretary's par-
ticipation in grievance processing or administration of
the collective-bargaining agreement. The duties imposed
on the recording secretary admittedly can be performed
off-the-job. Accordingly, I conclude that the provisions
of the constitution and bylaws, standing alone, do not
vest the recording secretary with such responsibilities
which would justify a grant of superseniority.
Nonetheless, the Union argues that the actual functions
performed by its recording secretary Markel, in particu-
lar, demonstrate the need for her presence on-the-job. I
disagree.
Plainly, the proven performance of certain functions
does not establish a requirement of the recording secre-
tary's in-plant presence. In Markel's 6 years as recording
secretary, she participated in only one discussion with
management officials concerning employee work prob-
lems. This was as alternate zone committeeperson and
not in her capacity as recording secretary. The single
other such discussion is so isolated, in the context of em-
ployee problems arising almost daily, as to warrant no
further comment.
9 The Union argues that the Gulton standards are improper. In the al-
ternative, the Union contends the record contains evidence which meets
those standards. Determination of the propriety of these standards is not
within my authority. This decision deals only with the alternative conten-
tion.
1414
AUTO WORKERS LOCAL 1161 (PFAUDLER CO.)
Markel's discussions of problems with individual em-
ployees fail to support the Union's contentions, for two
reasons; first, because those problems were actually han-
dled by the appropriate zone committeeperson and,
second, because the record shows the discussions were
gratuitous undertakings, engendered by virtue of her per-
sonal experience and knowledge. That her wisdom was
acquired through her service as recording secretary is
fortuitous, and did not derive from the exercise of the
duties prescribed for that office. Thus this factor does
not militate toward the conclusion that the recording
secretary is required to be present in the shop.
The records Markel claimed she kept, she asserted,
were in the trunk of her automobile. Concededly, main-
tenance of the Union's records is a function encompassed
within the recording secretary's duties. It is not, howev-
er, prescribed that those records should be maintained in
or near the work place of the represented employees. If
such a requirement had existed, the evidence neverthe-
less shows on-the-job presence of either the records or
the recording secretary was unnecessary because Markel
had to obtain the records, in the two situations she de-
scribed, by traveling to the union hall during nonwork-
ing hours.
The notice-posting function assumes a similar charac-
ter. The evidence shows virtually any union official
could post notices, as did its president. More important-
ly, Markel, herself, acknowledged she had no difficulty
posting notices after her layoff. Patently, the notice-post-
ing activities of the recording secretary, especially in the
instant context, bear no relationship to contract adminis-
tration or day-to-day grievance handling.
Likewise, the record reflects no impairment of the re-
cording secretary's function of keeping minutes at the
monthly joint union-management meetings. Markel per-
formed that activity, even after her layoff. She admitted
she need not be at the shop to satisfy this aspect of her
functions. Ample advance notice of the meetings was
available.
The collective-bargaining agreement provides cogent
evidence that the recording secretary is not a necessary
functionary in grievance handling. The zone committee-
persons are responsible for initial grievance processing.
When grievances reach the third step, they are bought to
the Union's management committee. There, the record-
ing secretary (though attending) is responsible only for
memorializing the proceedings. Though the evidence
shows the recording secretary casts a vote to determine
the Union's position on grievances, that function is per-
formed as an intraunion matter. Discussion of the merits
of grievances, and announcement of statements of the
Union's position, involves the zone committeepersons
and union president.
The Union argues each of the above-cited cases, espe-
cially those involving other UAW Locals, is markedly
distinguishable from the case at bar because, herein, the
evidence reflects the actual functions of the recording
secretary far exceed the proved functions of the officers
involved in the cited cases. Unquestionably, some such
additional evidence appears herein. That evidence, how-
ever, has been clearly exaggerated. Whatever Markel, as
recording secretary, has done in the formal or informal
grievance procedure has been of valuable assistance and
was performed with arguably commendable objectives.
Yet, the record is equally clear that those functions are
not required by her office. They resulted, and were un-
dertaken, purely from what might be called her personal
institutional memory and experience. Other union offi-
cials, the president, and zone committeepersons were the
duly-constituted recognized and functioning officials for
in-plant contract administration and grievance process-
ing.
The recording secretary's remaining functions are con-
nected to obligations as a union officer and executive
board member; and not directly related to the adminis-
tration of the collective-bargaining agreement. The level
of responsibility vested in the recording secretary for
such purposes, does not, in my view, rise to the level of
responsibility which meets the Gulton standards recog-
nized as necessary to help stabilize labor relations in the
shop. They are strictly intraunion activities.
On all the above, I find that maintenance of the provi-
sion which grants superseniority to the recording secre-
tary is unlawful in violation of Section 8(bX)(l)(A) of the
Act.
I now turn to the General Counsel's contention that
the Union unlawfully sought to enforce and apply the su-
perseniority clause. This is based on the filing1 ° and
processing of Markel's layoff grievance.
The Union concedes the purpose of the grievance is to
compel compliance with the superseniority clause which
I have found unlawful. That admission, coupled with the
fact the grievance has not been withdrawn, comprises an
undeniable effort to enforce and apply the superseniority
clause to the Union's recording secretary which, in the
instant circumstances, is unlawful, in violation of Section
8(b)(2) of the Act. That section provides, in relevant
part, ". . . it shall be an unfair labor practice for a labor
organization or its agents . . . to cause or attempt to
cause an employer to discriminate against an employee in
violation of [Section] 8(a)(3)."
In the instant case, implementation of superseniority
for the recording secretary would cause the Employer to
lay off, for discriminatory reasons, an employee more
senior to the recording secretary. This is precisely a
result the Act intends to proscribe. That result is exacer-
bated by the Union's claim (discussed infra) that the alle-
gations herein should be deferred, pending submission of
the grievance to the contractual arbitration procedure.
See Distillery Workers Local 122 (Oz Liquor), 261 NLRB
1070 (1982).
0o During my effort at the hearing to delineate the isues. I asked the
General Counsel whether he contended the mere filing of Markel's griev-
ance constitues a violation of the Act. The Oeneral Counsel replied at-
firmstively. The parties were asked to brief that issue. All have done so.
My examination of the complaint reveals such a violation is not explicitly
alleged. I consider the matter to have been fully litigated. Nonetheless, in
view of my disposition of the issues actually pleaded, and the fact that
each of the cases cited by the General Counsel and the Union in support
of the theory that the filing of a grievance to enforce an unlawful con-
tract provision is clearly distinguishable because it ws not the filing of a
grievance which constituted any unfair labor practices found in those
cases, I conclude it serves no useful purpose to make findings on this un-
pleaded theory.
1415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On all the foregoing, I find that the Union has violated
Section 8(b)(2) of the Act by processing and maintaining
the Markel grievance.
2. The statute of limitations issue
The Union claims these proceedings are barred by
Section 10(b) of the Act because the statute of limitations
began to run either (a) on September 15, 1982 (when
Markel's superseniority under the current collective-bar-
gaining agreement was posted), (b) in June 1982 (when
Markel was initially granted superseniority), or (c) in
July 1981 (when the unlawful clause was negotiated and
first became effective).
In pertinent part, Section 10(b) states "[N]o complaint
shall issue based upon any unfair labor practice occur-
ring more than 6 months prior to the filing of the
charge." Each of the dates proposed by the Union to
have initiated the application of Section 10(b) is more
than 6 months before August 14, 1983, the date on which
the instant charge was filed. The question presented is
whether or not any act occurred within 6 months of the
charge's filing which constitutes an unfair labor practice.
In relevant part, the instant complaint alleges:
5(a) On or about July 30, 1981, the Employer and
Respondent (the Union) entered into, and since said
date have maintained, an agreement which provides
in pertinent part: (Text of Article III, paragraph 4
and Article IX, paragraph 40 omitted. See Section
II-B (1), supra for text.)
5(c) On or about August 10, 1983, Respondent at-
tempted to apply and enforce . . . (the alleged un-
lawful superseniority agreement) . . . to cause the
Employer to recall Respondent's Recording Secre-
tary from layoff in preference to another employee
with greater actual seniority.
Paragraphs 6 and 7 of the complaint allege that each
of the above acts constitutes violations of Section
8(b)(1)(A) of the Act.
The Union is literally correct in asserting that the date
when maintenance of the superseniority clause began
(July 30, 1981) is beyond 6 months from the date the
charge was filed. Nevertheless, I conclude that factor
does not warrant application of Section 10(b) in the cir-
cumstances of this case. I have not found that the execu-
tion of the 1981-1984 collective-bargaining agreement
was violative of the Act.
The evidence shows that regardless of the dates the
superseniority clause became effective or the initial date
of Markel's superseniority was granted, it was in effect
uninterruptedly from at least September 1982 until her
August 8, 1983, layoff. Thus, maintenance of the contrac-
tual provision, found unlawful as to the recording secre-
tary, occurred on a daily basis for several months imme-
diately preceding the filing of the charge.
The complaint, in paragraph 5(C), charges that it is an
unlawful effort, at least by the Union's pursuit of Mar-
kel's grievance, to apply and enforce the unlawful super-
seniority by reestablishing her superseniority status
which she enjoyed until the Employer's receipt of the
UAW's district director's letter. That pursuit began on
August 9, 1983, only 6 days before the charge was filed.
Processing of the grievance clearly was an attempt to en-
force and apply the superseniority provision which I
have found unlawful. Thus, the activity which I have
found unlawful occurred well within the 6-month period
before the charge was filed.
In the above-described chronology, the Union's unlaw-
ful conduct, as unfair labor practices, are not barred by
the Act's statute of limitations (Auto Workers Local 561
(Scovill), supra, fn. 5 and accompanying text. In Auto
Workers Local 561, Judge Hutton S. Brandon wrote a
scholarly examination of this issue. (See Judge Brandon's
decision, p. 9-10, including his observations on NLRB v.
Auto-Warehousers, 571 F.2d 860 (5th Cir. 1978), princi-
pally relied on by the Union in the instant case. I fully
concur in, and subscribe to, Judge Brandon's 10(b) dis-
cussion, analysis, and conclusions, and incorporate them
by reference.)
On all the foregoing, I find no merit to the Union's
claim that this action is time-barred.
3. Deferral to arbitration
In closing remarks at the hearing, the Union's counsel
moved me to defer decision on the merits of the com-
plaint allegations to the parties' contractual arbitral
forum. The motion was taken under advisement, for
ruling within this decision. The General Counsel and
Employer oppose the motion. On the state of this record,
I conclude the Union's motion must be denied.
It is true, as the Union contends, that the Board, in
United Technologies Corp., 268 NLRB 557 (1984), strong-
ly expressed the view that recourse to a contractually ne-
gotiated arbitral process for resolution of issues arising
under a contract is preferable to litigation of the issues
before the Board. Thus, the Board stated, "where an em-
ployer and a union have voluntarily elected to create dis-
pute resolution machinery culminating in final and bind-
ing arbitration, it is contrary to the basic principles of the
Act for the Board to jump into the fray prior to an
honest attempt by the parties to resolve their disputes
through that machinery" (268 NLRB at 559). Deferral to
the contractual arbitration procedure "is merely the pru-
dent exercise of restraint, a postponement of the Board's
processes to give the parties' own dispute resolution ma-
chinery a chance to succeed" (268 NLRB at 560).
Gulton and its progeny make clear that it is for the
Board to establish the standards by which it will be de-
termined whether or not a particular contractual super-
seniority clause has exceeded lawful bounds. That issue,
in the first instance, is for the Board to decide. It is
beyond the authority and competence of an arbitrator. I
have found above that the duties and responsibilities of
the instant Union's recording secretary do not require
that officer's in-plant presence to further the administra-
tion of the collective-bargaining agreement. Accordingly,
I conclude that the evidence does not overcome the in-
herently discriminatory grant of superseniority to the
Union's recording secretary.
In this context submission of Markel's grievance to ar-
bitration, and deferral of a decision on the merits of the
complaint allegations to that process, neither provides a
1416
AUTO WORKERS LOCAL 1161 (PFAUDLER CO.)
means for resolution of the underlying issues of the
grievance nor fosters the precepts of collective bargain-
ing.
Moreover, it cannot be said that the underlying issues
could be resolved by recourse to arbitration. The con-
tract's meaning does not lie at the core of the instant dis-
pute. Instead it revolves around the legality of the super-
seniority clause. That is a threshhold question which
must be resolved by the Board. Once that question of
contract legality has been resolved (as I have done),
nothing remains for an arbitrator's decision.
Moreover, the lesson of Wine & Liquor Store Employ-
ees Union, Local 122, supra, is instructive. There, a union
attempted to use the contractual arbitration procedure to
enforce an unlawful union-security clause. The attempt
to arbitrate was held to be violative of the Act. Thus, it
is clear that lawful invocation of the arbitration proce-
dure presumes the legality of the clause which gives rise
to the arbitration proceedings. In the instant case, the
disputed clause is unlawful as applied to the recording
secretary. Submission to arbitration would compound the
illegality found herein and also cloak that illegality with
an unwarranted aura of respectability. It follows that the
Union's request to defer to arbitration should be rejected.
Accordingly, the Union's motion is denied.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By maintaining and enforcing a seniority clause in
its collective-bargaining agreement with The Pfaudler
Company, a Divison of Kennecott Corporation, accord-
ing the Union's recording secretary superseniority, and
by attempting to enforce and apply that provision by
processing a grievance on behalf of the recording secre-
tary to reeinstate such superseniority, the Union engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act.
4. Section 10(b) of the Act does not bar the instant
proceedings.
5. It is not appropriate to defer Markel's grievance to
the contractual arbitration procedure.
6. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Union has engaged in certain
unfair labor practices, it shall be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
I have found the superseniority clause here in dispute
is unlawful as applied to the Union's recording secretary.
Thus, the Union shall be ordered to cease and desist
from maintaining and enforcing, or attempting to en-
force, such clause with respect to its recording secretary.
Inasmuch as the Union's pursuit of Markel's grievance
is for an unlawful objective (enforcement and application
of the unlawful superseniority), the Union shall be or-
dered to cease and desist from such pursuit by requiring
the gievance to be withdrawn and by refraining from
filing further grievances to grant superseniority to its re-
cording secretary. See Teamsters Local 515 (Cavalier
Corp.), 259 NLRB 678 (1981).
Finally, the Union shall be ordered to cease and desist
from, in any like or related manner, restraining or coerc-
ing employees in the exercise of their rights guaranteed
by Section 7 of the Act.
On these findings of facts and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, United Automobile, Aerospace and
Agricultural Implement Workers of America, Local
Union No. 1161, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Maintaining and enforcing, or attempting to en-
force, its superseniority clause in its collective-bargaining
agreement with Pfaudler Company, A Division of Ken-
necott Corporation, with respect to the Union's record-
ing secretary.
(b) Further processing Markel's grievance of August 9,
1983, and filing and processing any further grievance
which would have the effect of granting superseniority
to its recording secretary.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Immediately withdraw Markel's August 9, 1983
grievance and file and process no further grievance
which would have the effect of granting superseniority
to its recording secretary.
(b) Post at its offices and meeting hall copies of the at-
tached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 8 after being signed by the Union's authorized
representative, shall be posted by it immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be
taken by the Union to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Mail signed copies of the attached notice to the Re-
gional Director for Region 8, for posting by the Employ-
er, if it is willing.
I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTIcE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT maintain and enforce, or attempt to en-
force, any agreement with Pfaudler Company, a Division
of Kennecott Corporation, which accords superseniority
to our recording secretary.
WE WILL NOT cause or attempt to cause the above-
named employer to discriminate against employees by re-
quiring that our recording secretary be retained as an
active employee when other employees who have great-
er seniority in the terms of length of employment are laid
off.
WE WILL NOT file or process any grievance which has
the effect of giving superseniority to our Recording Sec-
retary.
WE WILL NOT in any like or related manner restrain or
coerce the employees of Pfaudler Company, a Division
of Kennecott Corporation, in the exercise of their rights
set forth at the top of this notice.
WE WILL immediately withdraw the August 9, 1983
grievance on behalf of our recording secretary.
UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, LOCAL UNION No. 116
1418