Chauffeurs, Local 633, Teamsters

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 81 (N.L.R.B. 1977)

CHAUFFEURS, LOCAL 633, TEAMSTERS
Chauffeurs, Teamsters and Helpers Local Union No.
633 of New Hampshire, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Richard J. Laughton,
Sr. and Interstate Motor Freight System, Inc, et
al., Parties to the Contract. Case 1-CB-3134
June 10, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On December 30, 1976, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Chauffeurs, Teamsters and Helpers Local
Union No. 633 of New Hampshire, a/w Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Manchester,
New Hampshire, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order, as so modified.
I The Administrative Law Judge found that the superseniority clause at
issue herein is unlawful because it accords stewards superseniority for
purposes other than merely layoff and recall. While we agree with the
Administrative Law Judge that the clause is overly broad and hence
unlawful, we so find because it grants superseniority for all purposes, not
merely those pertaining to job retention, including layoff and recall. Cf.
Hospital Service Plan of New Jersey and Medical-Surgical Plan of New Jersey,
227 NLRB 585 (1976), and Motion Picture Laboratory Technicians, Local
780, International Alliance of Theatrical Stage Employees and Moving Picture
Operators of the United States and Canada, AFL-CIO (McGregor-Werner,
Inc.), 227 NLRB 558 (1976). Member Murphy further notes, in accordance
with her concurring opinion in Union Carbide Corporation. Chemical and
Plastics Operations Division, 228 NLRB 1152 (1977), that she would find
presumptively lawful job retention superseniority clauses for union stewards
or officers whose functions relate to furthering the bargaining relationship.
2 Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162
(C.A. 2, 1976).
230 NLRB No. 8
1. Substitute the following paragraph for para-
graph l(a):
"(a) Maintaining, enforcing, or otherwise giving
effect to those clauses in its collective-bargaining
agreements with the Parties in Interest named in
Appendix A which accord union stewards supersen-
iority for purposes other than job retention, including
layoff and recall."
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN FANNING, dissenting:
I would dismiss the complaint for the reasons set
forth in my dissenting opinion in Dairylea.2
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain and enforce any
agreement which gives our stewards top seniority
for all purposes other than job retention, includ-
ing layoff and recall, no matter what their length
of employment.
WE WILL NOT cause or attempt to cause any
employer to discriminate against any employee,
by assigning any term or condition of employ-
ment, other than those pertaining tojob retention,
including layoff and recall, to a union steward on
the basis of seniority when such steward, does not
in fact have top seniority in terms of length of
employment.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights protected by Section 7 of the Act.
CHAUFFEURS, TEAMSTERS
AND HELPERS LOCAL
UNION No. 633 OF NEW
HAMPSHIRE, A/W
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
case was heard at Manchester, New Hampshire, on
September 13, 1976, based on charges filed on December
15, 1975, and amended on January 21, 1976, alleging
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violations of Section 8(bXIXA) and (2) by the Respondent
Union.' Both the General Counsel and the Respondent
filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE PARTIES IN INTEREST
As admitted in the Respondent's answer, at all times
material herein, each of the parties listed in Appendix A,
attached hereto, have maintained places of business in the
State of New Hampshire where each has been engaged in
the hauling of general freight in interstate commerce. Each
of the Parties in Interest, in the course and conduct of their
respective business operations, derives gross annual reve-
nue in excess of $50,000 from its interstate freight hauling
operations. I therefore find that the Parties in Interest, and
each of them, are and have been, at all times material
herein, employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
Chauffeurs, Teamsters and Helpers Local Union No. 633
of New Hampshire, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereafter referred to as the Union or the
Respondent, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein, the Union has been the
collective-bargaining representative of the drivers, dock-
workers, and helpers employed by the Parties in Interest,
pursuant to individual identical collective-bargaining
agreements known as the Northern New England General
Freight Agreement Supplement to the National Master
Freight Agreement, hereinafter called the supplement,
effective for the period July 1, 1973, to March 31, 1976.2
Article 41 of the supplement, headed "Stewards-Appoint-
ments and Duties" provides in relevant part:
The Employer recognizes the right of the Union to
designate job stewards and alternates for each terminal
from the Employer's seniority list, but no more than
one in each classification. The authority of job stewards
and alternates so designated by the Union shall be
limited to, and shall not exceed the following duties and
activities: [a detailed listing of a steward's duties and
responsibilities ].
Stewards shall be granted super-seniority, for all
purposes including layoff.
Article 43, section l(d)(l) and (5), and article 52, section 2,
in sum, provide that seniority shall govern the employees'
I The employers listed in Appendix A attached hereto are the Parties in
Interest in this proceeding and will hereafter be referred to as such.
2 On April 1, 1976, a new supplement went into effect with a termination
date of March 31, 1979. This supplement, in evidence, consists of a list of
changes in the previous agreement, none of which are material to the instant
selection of starting times, vacations, and the distribution
of Saturday premium pay work.
On January 27, 1976, Socrates Makris, secretary-treasur-
er of the Union, wrote a form letter to all the signers of the
supplement stating that since the National Labor Relations
Board had recently ruled that employers and unions
cannot grant superseniority to shop stewards except for
purposes of layoff and recall, any provision of the
collective-bargaining agreement in conflict with this ruling
"is rendered void and unenforceable." 3 However, accord-
ing to credible testimony by Makris, when this letter was
read at the January meeting of the Union at which many
stewards were present, a motion was passed instructing the
Union to rescind the January 27 letter. As a result another
letter dated February 13, 1976, was sent to the Parties in
Interest announcing that, since the Board's decision had
been appealed and since the Union was presently involved
in a similar case which it intended to litigate, "we must
continue to give full force and effect to our super-seniority
clause as presently written until a final, definitive determi-
nation is made. Therefore, it is requested that our letter of
January 27, 1976 be clarified in the respects set forth in this
letter."
In Dairylea, supra at 658, the Board held that "in view of
the inherent tendency of super seniority clauses to
discriminate against employees for union-related reasons,
and thereby to restrain and coerce employees with respect
to the exercise of the rights protected by Section 7 of the
Act, we do find that super seniority clauses which are not
on their face limited to layoff and recall are presumptively
unlawful, and that the burden of rebutting that presump-
tion (i.e., establishing justification) rests on the shoulders of
the party asserting their legality." The General Counsel
contends that the instant proceeding falls squarely within
the ambit of the Dairylea decision. The Respondent
disagrees, noting that here, unlike the Dairylea proceeding,
there is testimonial evidence which it argues distinguishes
this case from Dairylea, and in addition provides the
justification necessary to rebut the presumption established
by the Board's holding. Thus, Makris testified that, to his
recollection, in all except two instances stewards had been
elected rather than appointed. I find, however, that this is
not a significant factual distinction since the flaw which
gave rise to the Board's holding in Dairylea still remains.
As the Board stated:
The clause here in question gives union stewards, only
because they are union stewards, preference in securing
a rather wide range of on-the-job benefits. This fact is
not in dispute. Further, there is nothing a unit
employee can do, apart from being selected [or as here
elected] a steward, to acquire such preference for
himself. His actual seniority on the job avails him
nothing against the stewards' super seniority. Conse-
quently . . . viewed realistically the only way a unit
employee can gain such preference to on-the-job
benefits is to be a good, enthusiastic unionist ....
proceeding. Art. 41, "Stewards-Appointments and Duties," and Art. 43,
Sec. I(dXI) and (5), are specifically listed in the new supplement as having
"no change."
3 The letter referred to the Board's decision in Dairylea Cooperative Inc.,
219 NLRB 656 (1975), enfd. 531 F.2d 1162 (C.A. 2, 1976).
82
CHAUFFEURS, LOCAL 633, TEAMSTERS
Furthermore I note that article 41 of the supplement is
headed "Stewards-Appointments and Duties" and speaks
only of the Union's right to "designate" a steward.
Furthermore, as the General Counsel points out and as
Makris conceded, the Union's constitution and bylaws
contain certain eligibility requirements which must be met
to become a steward, including being a member in good
standing of the Local and having attended 50 percent or
more of the membership meetings for a period of the past 2
years.
Makris gave testimony to the effect that the superseniori-
ty provisions in question have not been enforced. I do not
credit this testimony since it is contrary to his February 13,
1976, letter, and to the testimony of John C. Lyons, vice
president of industrial relations of Quinn Freight Lines,
and Holmes Tracy, the Manchester, New Hampshire,
terminal manager for Spector Motor Freight, that during
1975 and 1976, respectively, they have accorded stewards
superseniority for purposes other than merely layoff and
recall. In the final analysis, the only real justification for
the existence of the superseniority provision is that it tends
to encourage individuals to serve as stewards as supported
by Makris' conclusionary opinion testimony that it would
be difficult for the Union to get individuals to serve as
stewards without the benefit of the superseniority provi-
sion. This same argument was advanced by the dissent in
the Dairylea case and rejected by the majority. Therefore,
under all the circumstances present here, I find and
conclude that the Respondent has not shown justification
for the superseniority provision sufficient to rebut the
presumption of its illegality. Therefore, I find that the
Respondent has violated Section 8(b)(1)(A) and (2) of the
Act.
CONCLUSIONS OF LAW
i. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. The Parties in Interest named in Appendix A
attached hereto are each employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. By maintaining and enforcing the stewards' super-
seniority clauses here in question, the Respondent Union
has violated Section 8(bXI)(A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act. Since I have found that the steward
superseniority clauses here in dispute are unlawful, I shall
therefore order that Respondent Union cease and desist
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
from maintaining, enforcing, or otherwise giving effect to
those clauses in its collective-bargaining agreements with
the Parties in Interest, which accord union stewards
superseniority with respect to terms and conditions of
employment other than layoff and recall. I shall also order
that the Respondent cease and desist from causing or
attempting to cause the Parties in Interest to discriminate
against employees in violation of Section 8(aX3) of the Act.
Finally, I shall order the Respondent to notify, in writing,
all employer signatories to the Northern New England
General Freight Agreement Supplement to the National
Master Freight Agreement that the Union will not
maintain or enforce any provision of said agreement that
accords union stewards superseniority with respect to
terms and conditions of employment other than layoff and
recall. Respondent will also be ordered to post an
appropriate notice notifying its members of this action.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 4
The Respondent, Chauffeurs, Teamsters and Helpers
Local Union No. 633 of New Hampshire, a/w Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its officers, agents, and represen-
tatives, shall:
I. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving effect to
those clauses in its collective-bargaining agreements with
the Parties in Interest, named in Appendix A, which accord
union stewards superseniority with respect to terms and
conditions of employment other than layoff and recall.
(b) Causing or attempting to cause the Parties in Interest,
named in Appendix A, to discriminate against employees
in violation of Section 8(aX3) of the Act.
(c) In any like or related manner restraining or coercing
the employees of the Parties in Interest in the exercise of
their rights protected by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Notify, in writing, all employer signatories to the
Northern New England General Freight Agreement
Supplement to the National Master Freight Agreement
that Respondent Union will not maintain, enforce, or
otherwise give effect to those clauses of that agreement
which accord union stewards superseniority with respect to
terms and conditions of employment other than layoff and
recall.
(b) Post at its office and meeting halls used by or
frequented by members and employees it represents at the
Parties in Interest named in Appendix A copies of the
attached notice marked "Appendix B." 5 Copies of said
notices, on forms provided by the Regional Director for
Region 1, shall be posted by Respondent immediately
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an order of
the National Labor Relations Board."
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to the above-described
members and employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material. The Respondent shall furnish the Regional
Director for Region I with a sufficient number of signed
copies of such notice for posting by each of the Parties in
Interest, if they so wish, in places where notices to
employees are customarily posted.
(c) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
Associated Transportation, Inc.
380 Madison Avenue
New York, NY 10017
Attn: Mr. John Barston
Auclair Transportation, Inc.
333 March Avenue
Manchester, NH 03103
Attn: Mr. Maurice McCarthy
Bartletts Express
71 Harrison Street
Keene, NH 03431
Attn: Mr. Herman Lagerberg
Blue Line Express, Inc.
Lowell Road
Nashua, NH 03060
Attn: Mr. Keith Vaskelonis
Consolidated Freightways
Post Office Box #4121
Portland, Oregon 97208
Attn: Mr. Patrick Fleming
Dearborns Motor Express
Exeter, NH 03833
Attn: Mr. William Walsh
Graf Brothers
Water Street
Newburyport, MA 01950
Attn: Mr. Tyng Graf
G. H. Harnum, Inc.
867 Woburn Street
Wilmington, MA 01887
Attn: Mr. G. H. Harnum
Gypsum Haulage, Inc.
Post Office Box # 30248
Cleveland, Ohio 44130
Attn: Mr. William Gorbett
Hemingway Transportation, Inc.
438 Dartmouth Street
New Bedford, MA 02740
Attn: Mr. Donald Kelly
Hermsdorf Fixture Manufacturing Company
108 Franklin Street
Manchester, NH 03101
Attn: Mr. James Tyre
Holmes Transportation, Inc.
Post Office Box # 1023
Framingham, MA 01701
Attn: Mr. James Malkin
Interstate Motor Freight System
134 Grandville Avenue W.W.
Grand Rapids, MI 49502
Attn: Mr. D. Verberg
Jones Motor Company, Inc.
Bridge & Schuylkill Road
Spring City, PA 19475
Attn: Mr. Charles Long
Law Motor Freight, Inc.
Airport Road
Post Office Box #407
Nashua, NH 03060
Attn: Mr. George Law
Lewis Express, Inc.
5 Pine Street
Littleton, NH 03561
Attn: Ms. Mary Ball
M & M Transportation Company
186 Alewife Parkway
Cambridge, MA 02138
Attn: Mr. George Borgos
McCarthy Transportation, Inc.
62 Everett Street
Westwood, MA 02090
Attn: Mr. Paul Dowling
McLean Trucking Company
617 Waughtown Street
Winston-Salem, NC 27107
Attn: Mr. R. J. Ehrhardt
Maislin Transport, Inc.
2250 Maislin Street
LaSalle, Montreal
Quebec, Canada H8NIX3
Attn: Mr. A. Maislin
Nashua Motor Express
270 Amherst Street
Nashua, NH 03060
Attn: Mr. George Juris
Quinn Freight Lines
1093 North Montello Street
Brockton, MA 02746
Attn: Mr. John Lyons
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CHAUFFEURS, LOCAL 633, TEAMSTERS
St. Johnsbury Trucking, Inc.
40 Erie Street
Cambridge, MA 02139
Attn: Mr. William Dodge
Spector Freight System
205 West Wacker Drive
Chicago, IL 60606
Attn: Mr. Nicholas Catsinas
Universal Coordinators, Inc.
Post Office Box # 334
Elmwood Park, NJ 07407
Attn: Mr. Louis Kolsman, Jr.
Willey's Express
Post Office Box #488
Laconia, NH 03246
Attn: Mr. Floyd M. Willey
Yellow Freight Systems
Post Office Box #7270
10990 Roe Avenue
Shawnee Mission, KS 66207
Attn: Mr. Thomas W. McCullough
85