Dravo Corp., Dravo Marine Equipment Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1176 (N.L.R.B. 1985)

1176 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dravo Corporation , Dravo Marine Equipment Com-
pany and Industrial Union of Marine and Ship-
building Workers - of America, Local Union -No.
61, AFL-CIO. Case 6-CA-16471
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON -
On 27 December 1984 Administrative Law
Judge Mary Ellen R. Benard issued the attached
decision. The General Counsel filed exceptions and
a supporting brief, and the Respondent filed a brief
in response. -
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,' and
conclusions and to adopt the recommended Order.
ORDER .
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings
In her exceptions the General Counsel contends, in part, that the judge
erred regarding the number of meetings between representatives of-the
Respondent and the Union 's negotiating committee The judge found
there were at least seven such meetings in 1979, five in 1980, four in
1981, nine in 1982, and five in 1983 A summary of such meetings com-
piled by the Respondent indicates that there were at least 12 meetings in
1979, 11 in 1980, 7 in 1981, 11 in 1982, and 7 in 1983 through 26 May
1983
' We find that these corrections do not affect the result here The Re-
spondent 's summary reflects that the vast majority of these meetings in-
volved such matters as contract concessions and subcontracting out
work Bargaining over such matters by the Union's negotiating commit-
tee clearly would not involve the steward -like performance of on -the-job
grievance processing or contract administration Gulton Electro-Voice, 266
NLRB 406 (1983), enfd sub nom Electrical Workers IUE Local 900 v
NLRB, 727 F 2d 1184 (D C Cir. 1984) Thus, these meetings are insuffi-
cient to justify extending supersenionty to members of the Union 's nego-
tiating committee
Charles H. Saul, Esq., of Pittsburgh, Pennsylvania, for
the General Counsel.
Michael D. McDowell, Esq., of Pittsburgh, Pennsylvania,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD , Administrative Law Judge.
The original charge in this case was filed on June 13,
1983, and amended on July 29 , 1983, by Industrial Union
of Marine and Shipbuilding Workers of America, Local
Union No . 61, AFL-CIO (the Union), against Dravo
Corporation„ Dravo Marine Equipment Company' (the.
Respondent). On December 23, . 1983 , the complaint
issued alleging , in substance , that the Respondent violat-
ed Sections 8(a)(1) and (5) and 8 (d) of the National
Labor Relations Act by abrogating a provision of the
Respondent 's collective-bargaining agreement with the
Union which provided for superseniori ty to the Union's
vice president and the members of its negotiating com-
mittee . The Respondent filed an answer in which it
denied the commission of any unfair labor practices.
A hearing -was held before me , on May 29 , 1984, in
Pittsburgh, - Pennsylvania . Following the hearing - the
General Counsel and the Respondent filed briefs, which
have - been considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation with an
office and place of business in Pittsburgh, Pennsylvania,
where it has been engaged , inter alia, in the manufacture
and nonretail sale of barges and towboats. During the 12-
month period ending May 31, 1983, the Respondent, in
the course and conduct of its business operations, pur-
chased and caused to be delivered to its Pittsburgh facili-
ty products, goods, and materials valued in excess of
$50,000 from States other than -the Commonwealth of
Pennsylvania. The answer admits and I find that the Re-
spondent is an employer engaged in commerce within
the meaning of the Act, and I further find that it effectu-
ates the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has represented the Respondent's produc-
tion and maintenance employees since 1945 and has en-
tered into a succession of collective-bargaining agree-
ments with the Respondent since that time. The most
recent contract was in effect from September 15, 1980,
until September 15, 1983;2 negotiations for a successor to
' The name of the Company is corrected pursuant to the agreement of
the parties
H All dates hereinafter are 1983 unless otherwise indicated
276 NLRB No. 128
DRAVO CORP. - 1177
that agreement'began in August. The 1980-1983 con-
tract,' herein 'called - the Agreement, contained what is
known as a superseniority clause, providing that certain
representatives of the' Union would have top seniority
rights in their job classifications. Specifically, the Agree-
ment granted superseniority to members of the Union's
negotiating and grievance committees, to stewards, and
to a maximum of eight other union officers.
The Agreement also contained a three-step grievance
procedure. At step 1 the aggrieved employee met with-
his steward and his foreman; if' no satisfaction was ob-
tained at that level the employee and steward met with
the superintendent and then, if the latter's answei did not
resolve the issue , wrote up the grievance. At the second
step the grievance was discussed between a grievance
committeeman and the grievant's superintendent, and at
the third step the grievance was discussed at a weekly-
meeting of the Respondent's industrial relations depart-
ment , the chairman of the grievance committee, and the
grievance committeeman and sometimes the steward
who had processed. the grievance to that stage. The
Agreement also provided that the Respondent would
honor the Union's request to permit its officers, stewards,
and members of the grievance and negotiating commit-
tees to attend special meetings to discuss grievances: Fi-
nally, the Agreement required that all grievances not set-
tled at the third step be submitted to prearbitration meet-
ings 'between the Respondent and the Union and, ulti-
mately; for arbitration.
Henry Brown, the Respondent' s manager of employee
relations, credibly testified that as of 1981 the Respond-
ent had about 1100 employees and operated on three
shifts. Subsequently, however, the Respondent suffered a
decline in business which resulted in massive layoffs of
employees;.as of February there were about 60 to 70 em-
ployees, and all unit employees were laid off on Septem-
ber 14.
During the period when 'the plant operated with three
shifts, about 60 percent of the employees worked on the
daylight shift. The only union officials who worked on
the other shifts were the shift stewards; all other union
representatives, including the Union's vice president and
all the members of the negotiating committee, worked on
the daylight shift. -
B.- The National Labor Relations Board's Decision in
Gulton Electro- Voice
1. The decision
March 7 the National Labor Relations Board issued its
decision in Gulton Electro-Voice, 266 NLRB 406 (1983).3
In that case the Board, overruling some prior decision,
held ' that contractual grants superseniority are lawful
only when applied to those union representatives who
perform stweard or other on-the-job contract admiriistia-
tion functions.
2. The Respondent's-reaction
Brown credibly testified4 that in early April the Re-
spondent's attorney, Michael McDowell, called him to
ask if he was aware of the Gulton decision.. Brown -re-
plied that he was not,- and McDowell said that' he
thought the decision would have an impact on the Re-
spondent's practice 'with. respect to; superseniority.
Brown further testified that after he had discussed the
matter with other counsel the Respondent became con-
cerned that by granting superseniority to union officials
who were not entitled to it under Gulton the Respondent
might -incur backpay liability to more senior employees
who had been laid off while junior union representatives
were. retained.
On April 21 representatives of the Union and the Re-
spondent met for an arbitration hearing. Just before the
proceeding began Brown gave a letter to Ernest Truffa,
the union president. The letter was dated the same day
and addressed to- Truffa, with the following text:
Dear Sir:
This is to inform you that our legal counsel has
notified us'[of] a recent N.L.R.B. decision involving
[Gulton], regarding "superseniority for union offi-
cials," the-result of this board decision necessitates
that we immediately obey the findings of this deci-
sion. We must, therefore, change our seniority prac-
tice which will directly result in the layoff of sever-
al individuals and the rehiring of several other indi-
viduals. In addition, the aforementioned ruling ne-
cessitates that effective as of this date-certain union
officials are no longer granted top seniority under
the labor agreement. These individuals are:
Vice President --
Executive secretary
Recording Secretary
Treasurer
Trustees'
Negotiating Committee Members
The following union officials will continue to have
top seniority: -
President
Grievance Committeemen
Department Stewards
It is necessary that we take, this action to avoid
any liability on the part of the company for viola-
tion of this recent decision.
As of April 22, and in consequence of the Respond-
ent's decision April 21, three.employees were laid off:
James Miller , the Union's treasurer, Albeit Spardy, a
member- of the negotiating committee, and Robert
Borner, a union trustee. Also on April 22 there was, a
meeting between management and union officials to dis-
8 Enfd sub nom Electrical Workers IUE Local 900 v. NLRB, 727 F 2d
1184 (D C Cir 1984)
• Brown appeared to be a candid and forthright witness who exhibited
good recollection I therefore generally credit him, except where I have
specified otherwise
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuss a contract the Respondent had received to build 15
barges but, according to Brown, most of the discussion
at the meeting was about the superseniority issue. There
were several subsequent -meetings between representa-
tives 'of 'the two parties, including one attended by
Arthur Batson, president of the Industrial Union of
Marine and -Shipbuilding Workers of America, herein
called the National Union, with which the Union is affili-
ated. However, the Respondent did not change its posi-
tion as expressed in the April 21 letter as to which union
officials were entitled to superseniority.
On June 8 Brown wrote to Truffa requesting negotia-
tions on "more compatible" superseniority language. The
next day McDowell wrote to Thomas Lippard, counsel
for the Union, stating the Respondent's position that its
action was consistent with the Board's decision in
Gulton, but enclosing a copy of Brown's letter to•• Truffa
and suggesting negotiations. Lippard replied by letter
dated June 10, stating that the Respondent had unilater-
ally changed a•provision of the contract, that "[tjo the
extent that negotiations are appropriate at all, perhaps
you will present to me a proposal to accommodate the
harsh change you-have unilaterally imposed"; and that
the Union intended to file unfair labor practice charges.
.In the meantime, and' prior to the Board's decision in
Gulton, the need for layoffs had reached the. point that
an issue arose as to priority among those employees with
superseniority. The Respondent's position had been that
the most senior employee of those with superseniority
would be retained. On August 31, 1982, Batson, who at
that time was the National Union's vice president and
secretary-treasurer, wrote to Brown, stating the National
Union's 'position that the first union officials to be laid, off
should be the members of the negotiating committee, fol-
lowed by the grievance committee, the official board
(which comprises the eight elected officials of the local
union: the president, vice president, treasurer, executive
secretary, recording secretary, and three trustees), and
the stewards, in that order. Brown credibly testified that
the issue was eventually submitted to arbitration and the
Union prevailed.
C. The Evidence as to the Functions of the Union's
Vice President and Negotiating Committeemen
1. The negotiating committee
It is undisputed that the members of the negotiating
committee are responsible for the conduct of collective
bargaining on the Union's behalf with the Respondent,
and that this is the only function of the committee speci-
fied in the Union's bylaws. It is also undisputed that all
negotiation sessions for collective-bargaining agreements
after 1971 were held outside the plant. However, while
Nicholas Kapko, chairman of the negotiating committee,
testified that there were 30 to 50 meetings to negotiate
the Agreement, Richard Williamson, the Respondent's
assistant employee relations manager, testified that there
were 19 or 20 sessions before agreement was reached.
Kapko similarly testified that there were 30 to 50 meet-
ings to negotiate a successor contract, while Williamson
testified that there. had been either 27 or 28 sessions for
that purpose.
Kapko testified that the negotiators are. responsible not
only for negotiating the collective-bargaining agreement
but they also, handle day-to-day problems involving the
contract and meet frequently with members of manage-
ment. Specifically, according to Kapko, meetings are
held quarterly to discuss various concerns It is undis-
puted that these meetings are held in the plant. However,
according to Brown, although these meetings are sup-
posed to be held every 3 months, in practice during the
term of the Agreement there were about three meetings
per year. The.only documentary evidence with respect
to quarterly meetings is the minutes of those meetings
that were conducted on July 2 and October 8, 1981, and
on February 15 and October 28, 1982.
I credit Brown over Kapko. As noted above, I found
Brown generally credible. However,,I, was not.favorably
impressed with Kapko's demeanor, for he did not appear
to be entirely straightforward but, instead, seemed to ex-
aggerate his testimony in order to bolster the Union's po-
sition in this case V
Kapko also testified that the negotiating committee
had met with management to discuss a variety of issues,
specifically mentioning meetings on the use of outside
subcontractors or new or unusual equipment, elimination
of jobs, the closing of the machine shop, changes in rates
of pay, the change to a new insurance carrier, a change
with respect to the timeclocks, the installation of vending
machines, and use of a canteen service. According to
Kapko, whenever the Respondent intended to use an
outside contractor in the plant, it. was the duty of the
chairman of the negotiating committee members to inves-
tigate the matter and to then meet, along with the nego-
tiating committee, with representatives of management.
Also according to Kapko, if the Respondent utilized con-
tractors over the Union's objection and the Union decid-
ed to grieve the matter, the chairman of the negotiating
committee prepared the Union's grievance, assisted the
chairman-of the grievance committee at the third step of
the grievance procedure, and testified in the arbitration
proceeding if there was one.
Kapko further testified that management had called
meetings with the negotiating committee to discuss drug
and alcohol abuse , blood drives, savings bonds drives,
and identification cards. According to Kapko, the .meet-
ings were generally attended by Brown and Williamson,
were held either in Brown's office or the plant cafeteria,
occurred once every week or 2 weeks, and were held on
working time-for which the negotiating committee mem-
bers were paid by the Respondent.
Brown testified that aside from the quarterly meetings
there were only about two meetings per year on outside
contracting or similar issues. However, in' support of
Kapko's testimony the General Counsel introduced into
evidence minutes of various -meetings between the nego=
hating committee and representatives of management.
These minutes establish that there were at least seven
meetings between representatives of management and the
committee in 1979 and five meetings in 1980. There.were
DRAVO CORP' - 1179
at least four' meetings in 1981.5 In 1982 there were at
least nine meetings, and there were at least five meetings
in 1983. At least two of the 1983 -meetings for which
minutes were offered into evidence were concerned with
the issue of superseniority. In view of these documents, I
conclude that neither Brown nor Kapko was credible on
the number of meetings, and that there were more meet-
ings than Brown asserted, but fewer than the number
claimed by Kapko.
The General Counsel further introduced into evidence
about a dozen notices from the Respondent to the Union
on the subject of using outside contractors for certain
work. Some-of these notices predate the Agreement, and
the record-does not show whether there were meetings
between the negotiating committee members and the Re-
spondent's officials to discuss these contracts.
Kapko also testified that the members of the negotiat-
ing committee answered questions from employees on a
daily basis and on working time in the plant and that the
questions involved such topics as contract provisions, in-
surance' coverage, and the like. Indeed, according to
Kapko, between 1978 and 1980 he only performed within
his job classification about 10 times, and spent the rest of
his time handling all types of work-related problems for
employees and sitting in on meetings with Brown on sub-
jects such as employees missing time. Although these
functions are not listed among the responsibilities of the,
negotiating ' committee members in either the Union's
bylaws or the collective-bargaining agreement, Kapko
testified that they had been added to the negotiators'
duties as part of a Relationships= by Objectives program
in which the Respondent and the Union participated
under the auspices of the United States Department of
Labor. According to Kapko, as part of this program
union representatives were taught to take more responsi-
bility for resolving problems before they reached the
level of grievances. The program also included about 3
days per year of classroom work for union and manage-
ment representatives as well as some followup - meetings.
The last Relationships by Objectives session was in 1981.
The Respondent introduced into evidence documents
titled "Mutual Lists of Objectives,", which Brown credi-
bly testified were the mutually agreed-upon objectives
established by the Respondent and the Union pursuant to
the Relationships by Objectives programs. It appears that
these lists were prepared yearly from 1977 through 1981;
each list _ includes an itemization' of objectives plus a
statement of how and when each objective was to be
achieved. The 1977 list includes the objective that "The
parties agree to improve the climate in dealing with-each
other, through mutual respect and conducting themselves
in a businesslike manner," to be implemented through es-
tablishment of biweekly departmental meetings ' and
review by the industrial relations department and the ne-
gotiators; and the 1978 list includes a commitment for
the negotiators and the industrial relations department to
review job descriptions and temporary assignments in
6 A memorandum of intentwith respect to the retirement plan was ex-
ecuted by the Union and the Respondent on May 21, 1981 . The record
does not show whether there were any meetings between the negotiating
committee and the Respondent on the subject prior to preparation of the
memorandum.
light of'the Respondent's market position and on an "as
needed" basis. The 1979 list includes an objective to "at-
tempt to resolve non-economic language prior to con-
tract expiration," to be'- implemented,.by,, a meeting in,
April 1980 between members of the Union's negotiating
committee and representatives of the Respondent (R.
Exh. 15c, p.1), as well as an, objective to "foster the de-
velopment,and acceptance of new products and process-
es," also. to be discussed between union negotiators and
management . The 1980 list includes a provision for meet-
ings in April and May of that year between Respondent
officials, and union negotiators to discuss daily overtime.
There are no specific references to the Union's negotiat-
ing committee in the list for 1981, the last year the pro-
gram was utilized. Although the list for each year in-
cludes an.-objective of improving grievance resolution at
lower levels, none of the lists indicates that union nego-
tiators -were to have any responsibility for implementing
this objective. Indeed, except as noted above, there are
no references in any. of the lists to union negotiating
committee members. -
Neither Brown nor Williamson, the only management
officials to testify, had firsthand knowledge of how often
negotiating committee members settled problems on the
plant floor without any formal grievance being filed, and
thus Kapko's testimony that he spent substantial periods
of time in that activity was, essentially uncontradicted.
Nonetheless, I do not. credit him on this point. First, as
discussed above, I have found that he had. a tendency to
exaggerate his testimony on the Union's behalf. Second,
although the record is replete with assertions by union
representatives, both in testimony before me and in min-
utes of the Union 's meetings with management on the su-
perseniority issue , that the negotiators were active in
contract. administration and grievance processing, it is
noteworthy that. there is no documentary support for
these contentions. Thus, despite the Union's reliance on
the increased responsibilities of the negotiators pursuant
to the, Relationships by Objectives program, the objec-
tives articulated as the result of these programs do not
indicate any enhancement of these officials' functions
but, 'rather, refer, repeatedly to more responsibility for
stewards and firstline management. Similarly, there is no
indication in the National Union's constitution, the
Union's bylaws, or the,Agreement that negotiators pos-
sessed the kinds of responsibility that Kapko ascribed to
them.. . -
Kapko also testified- that as chairman of the negotiat-
ing committee he' sat in on` all arbitrations as well- -as
prearbitration meetings with management, sometimes
joined the stewards in. meetings at the first step of the
grievance procedure, and sometimes went.to the biweek-
ly meetings of the stewards- and the superintendents. He
further testified that he participated-in the third step of
the grievance procedure at least six or seven times be-
tween September, 1980 and September 1983. Williamson
also testified about negotiating committee members' in-
volvement in third-step grievance processing, stating that
of the 334 grievances which -went to' the third step
during the term of' the Agreement, there were 10 at
which a negotiator appeared at the third step, and in 7 of
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those 10 instances the negotiator who appeared was the
grievant' Further, according to Williamson, there are no
more than two prearbitration meetings 'per - year, and
they are always arranged in advance.6
Finally, according to Kapko, the' chairman of the ne-
gotiating committee sat on the Union's pension and insur-
ance committees; in this capacity he, along with the
union president and another negotiator, accompanied em-
ployees who were about to retire'to meetings at which
the employees' retirement benefits were explained to
them.
It is undisputed that Kapko was off work an extended
period of time in 1979, some 153 days plus 30 days on
union business, and was off work for 20 days plus 108
days on union -business to negotiate the Agreement in
1980.7 - •
In March 1981 Kapko was injured at work and was
off until August 1982. He worked until December 1 of
that year, was off again for a month on disability, and
was laid off on January 1, 1983. He was still on layoff
status as of the time of the hearing. Kapko testified that
he found it difficult to perform his duties as negotiator
when he was not present in the plant because when he
made a special trip to the plant he was not always able
to find the people to whom he needed to talk and be-
cause during the spring and summer of 1983 management
would not let union officials into-the plant. That policy,
was changed, however, and Kapko testified that subse-
quently-he could •go into the plant as-long as he contact-
ed the guards first.
2. The vice president
The record establishes that the union president spent at
least 15 to 20 hours per week outside the plant and at the
Union's office. John Vratoric, vice president of the
Union from November 1982 until his resignation the
week before the instant hearing, testified that the presi-
dent handled grievances and investigated trouble in the
plant and that the vice president's duties were to act for
the president in the latter's absence, police the collective-
bargaining agreement, and help settle grievances at the
first step. According to Vratoric, the vice president was
involved in grievance processing on almost a daily basis
and also attended the quarterly meetings between the ne-
gotiating committee members and representatives of the
Respondent and sometimes attended negotiating, sessions
for collective-bargaining agreements. However, Brown
credibly testified that usually the only time management
officials had dealings with the vice president was when
the president was on vacation or•ill. Brown further testi-
fied that Vratoric's predecessor- as vice president, Robert
Borner, had been more active than most other vice presi-
dents had been,-and had frequently taken messages from
the Union's president to Brown. Nonetheless, according
to Brown, on those occasions when the vice president
became involved in grievance handling due to the ab-
sence of the president, a final decision was usually de-
6 I credit Williamson on this point , for he seemed to testify candidly
and to display good recollection. .
When union officials are excused from work for union business they
are paid by the Union rather than by the Respondent.
layed until the president became available. Brown further
testified that Borner was a maintenance mechanic whose
work took him to all areas of the,plant, while Vratoric
was a craneman.
Vratoric was laid off on December 17, 1982, and re-
mained on layoff status as of the date of the instant hear-
ing.8 He testified that during the relatively short period
between assuming the office of vice president and this
layoff he participated in at least five to -eight grievances
at the first step, preventing them from going any further,
and that supervisors approached him almost daily about
contractual issues. Many of these questions apparently in--
volved temporary assignments of employees to jobs out-
side their usual duties, and Vratoric credibly testified
that when he dealt with these questions the steward in
his department was on disability leave, and the employ-
ees who would have served as steward in that official's
absence were either laid off or not working for some
other reason. .
It is undisputed that the Union's bylaws list as the vice
president's duties the performance of the president's
functions in the latter's absence, attendance at union
meetings , substitution for the president as an ex officio
member on committees when necessary, and assistance to
the president upon the latter's request. The bylaws do
not specify grievance processing as one of the vice presi-
dent's functions, but Vratoric testified that the Relation-
ships by Objectives program discussed above expanded
the responsibility of the Union's vice president as well as
that of the negotiating committee members with respect
to grievances at the first step. However, none of-the lists
of objectives in evidence contains any reference to the
Union's vice president.
Vratoric testified that during the period after his elec-
tion as vice president and prior to his layoff he was not
involved in any grievance at the third step, but that be-
tween the date of his layoff and the expiration of _•the
Agreement he participated in third-step grievance pro-
ceedings once or twice. However, Williamson testified
that during the entire term of the Agreement the union
vice president appeared at the third-step grievance meet-
ing only twice. I credit Williamson, for Vratoric, -like
.Kapko, seemed to exaggerate his testimony to some
extent, while Williamson impressed me as more careful
to be accurate. -
It is also undisputed that at material times the Union
represented employees of other employers as well as
those employed by the Respondent, and Vratoric testi-
fied that his only contacts with those other employers
were meetings -perhaps once a month with production
management and that he was not involved in any negoti-
ations at their plants.
For the same reasons as those given above with re-
spect. to my findings about Kapko's contract administra-
tion activity, I find that Vratoric did not engage in as
8 It is undisputed that if Vratonc had continued to have supersenionty
he would have received backpay pursuant to an arbitration award in Sep-
tember The arbitrator found that the Respondent acted contrary to the
Agreement in 1982 by placing in the bargaining unit four former foremen
who had been laid off from their supervisory positions , and by retaining
those former foremen while laying off other employees -
DRAVO
much day-to-day contract administration or grievance
processing as he claimed.
D. Analysis and Conclusions
1. Applicable principles
As noted above, in Gulton the Board held that super-
seniority could legitimately be applied only to union offi-
cers who perform steward or other on-the-job contract
functions. In Gulton itself both of the two officers in-
volved, the recording secretary and the financial secre-
tary-treasurer, sat on the union's executive board, but
neither had any involvement in the processing of em-
ployee grievances The recording! secretary, further, had
no responsibilities for meeting with management regard-
ing problems of contract administration, but the financial
secretary-treasurer met once each month at the plant
with the employer's financial officer; however, her only
role with respect to contract administration was the
monitoring of dues withholding. In explaining its hold-
ing, the Board emphasized:
In consideration of the underlying purpose of the
Act "to provide additional facilities for the media-
tion of labor disputes affecting commerce," insuring
the enforcement of the collective-bargaining agree-
ment by retaining on--the-job union representatives
responsible for processing grievances is a sufficient-
ly compelling reason to allow limited superseniority
with respect to layoff and recall to those who per-
form steward-like duties. It is the immediacy of at-
tention that stewards can-offer that place the stew-
ards in such a special position. Further, steward job-
retention superseniority is necessary to the stew-
ards' ability to carry out the primary duties of their
union position. However, superseniority is inherent-
ly discriminatory and the stewards' need to maintain
an on-the job presence does not generally apply to
officers; thus the justification used for stewards does
not extend to officers generally-unless the latter
perform steward-like duties.9
The Board has followed Gulton in a number of cases,
and review of those decisions as well as of Gulton sug-
gests a number of factors to be considered in assessing
the validity of a grant of superseniority:
1. In determining what functions an official performs,
it is appropriate to consider both the statements of-that
official's duties as set forth in documents such as the col-
lective-bargaining agreement and the union's constitution
and bylaws, and testimonial evidence.' 0 However, the
evidence, whether documentary or testimonial, must
demonstrate that the on-the-job contract administration
and grievance processing functions the official performs
are required by his union office. i i
2. The intermittent substitution for stewards by an offi-
cial whose primary union duties do not involve steward-
9 266 NLRB at 408
10 Wayne Corp., 270 NLRB 162 ( 1984).
11 Auto Workers Local 1161 (Pfaudler Co.), 271 NLRB 1411 (1984)
CORP. 1181
type functions does not justify the grant of supersenibrity
to that official. I 2 '
3. An official who does not otherwise perform stew-`
and-type duties is not entitled to superseniority merely
because he renders informal opinions on contract admin-
istration,13 or answers questions on contract interpreta-
tion or the status of grievances.14
4. In order for a grant of superseniority to be valid it
must be shown that the official invoking superseniority
"must be on the job to accomplish [his] duties," 15 and
there must be a "compelling need for a steward or other
union agent to perform on-the: job grievance processing
or contract administration ." (Emphasis added.) 16 -
5. The convenience for the union in having a given of-
ficer on the job does not warrant a grant of supersenior-
ity.1':
2. Concluding findings
As discussed above, there is no documentary evidence
that the vice president of the Union and the negotiating
committee members perform steward-like or day-to-day
contract administration functions , and I have found that
Kapko and Vratoric exaggerated the amount of responsi-
bility these officials have for dealing with grievances or
potential grievances. As also discussed- above, the record
demonstrates that during the term of the Agreement
these officials had little involvement at the third step of
the grievance procedure. Further, the record shows that
there were not nearly as many meetings between negoti-
ating committee members and management on contract
administration issues as Kapko alleged, that meetings to
negotiate the collective-bargaining agreement were not
held at the plant, and that both Kapko and Vratoric con-
tinued to perform as union officials despite being off
work for long periods of time.
It also appears that those functions which necessitated
the presence at the plant of any of these officials were
performed only intermittently; thus, there is no evidence
that either the meetings to explain to retirees their bene-
fits or the occasions when the negotiating 'committee
chairman investigated the propriety of the use of outside
contractors were particularly frequent, and Vratoric ad-
mitted that he talked to supervisors about temporary as-
signments because the steward for his department was
absent . With respect to the issue of whether it was neces-
sary for these officials to be at the plant to perform their
union duties, it is also noteworthy that the negotiating
committee members and officers all worked on the day-
light shift; if the stewards really needed the assistance of
these officers, it would seem likely that at least some of
them would work on the off shifts.
In sum, the record does not establish that the members
of the negotiating committee or the vice president acted
12 Wayne Corp., supra
's Inmont Corp , 268 NLRB 1442 (1984)
14 Ford Motor Co., 269 NLRB 250 fn 7 (1984); Auto Workers Local
1131 (Houdaille Industnes), 268 NLRB 1468, 1471 (1984)
11 Inmont Corp, supra, quoting Gulton.
16 Niagara Machine & Tool'Works, 267 NLRB 661 (1983), enfd. 746
F.2d 143 (2d Cir 1984)
17 Auto Workers Local 1384 (Ex-Cell Corp.), 267 NLRB 1303 (1983).
f
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
often enough in a steward-type role to satisfy the stand-
ard established in Gulton and its progeny for granting
these officials superseniorty. I therefore find that the Re-
spondent was justified in abrogating the superseniority
provision in the Agreement as it applied to them, and I
shall recommend that the complaint be dismissed.
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
labor organization within the meaning of Section 2(5) of
the Act.
3. A preponderance of the credible evidence does not
establish that the Respondent has violated the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER
The complaint is dismissed.
1. Dravo Corporation, Dravo Marine Equipment
Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Industrial Union of Marine and Shipbuilding Work-
ers of America, Local Union No. 61, AFL-CIO is a
18 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.