Electrical Workers IBEW Local 1977 (A. O. Smith Corp)

National Labor Relations Board - Board Decisions

Apr 17, 1992

307 N.L.R.B. 138 (N.L.R.B. 1992)

138
307 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is conceded that neither the superseniority nor the
committeeperson appointment clause violates the Act on its face.
What is contested is whether the Union violated the Act in attempt-
ing to enforce its interpretation of the committeeperson appointment
language.
2 There is no indication in the record what the practice was prior
to Glenn’s taking office.
3 Glenn testified that his reason for the increase was that he be-
lieved that the employee complement had gone up by 50 or 60 em-
ployees, to over 200, and accordingly, an additional committeeperson
was justified on the first shift. (Under his reasoning, the Union was
entitled to one committeeperson for the first 75 employees, a second
for employees 76–150, and a third committeeperson for employees
151 and up.) He further testified that he wanted to add another
committeeperson to appease the truckdrivers, who felt they had been
overlooked during contract negotiations.
4 Surber testified that under his interpretation of the contract, the
Union was actually entitled to only one committeeperson for the first
shift (because the employee complement was below 150 on that
International Brotherhood of Electrical Workers,
Local 1977, AFL–CIO–CLC (A. O. Smith Cor-
poration) and Gerald Keith Victor. Case 9–CB–
7832
April 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 26, 1991, Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a brief in support.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
This case presents the issue of whether the Union
abused a contractual superseniority provision in viola-
tion of Section 8(b)(2) of the Act by designating stew-
ards, or committeepersons as the parties refer to them,
in excess of the number that the contract allowed.1 The
judge found that the effect of such excess designations
was to give the committeepersons superseniority rights
to the detriment of other bargaining unit employees;
and he recommended that the Union be ordered to
make whole any employee who had been laid off as
a result of the Union’s conduct in appointing excess
committeepersons. For the reasons stated below, we
agree with the judge’s finding that designation of a
third steward on one shift was unlawful, but we do not
agree with him as to the second steward and we mod-
ify the Order accordingly.
I. FACTUAL FINDINGS
The contract clause in question reads as follows:
The Company recognizes the right of the Union
to designate Committeepersons on a plant-wide
ratio of one (1) Committeeperson for each sev-
enty-five (75) bargaining unit employees on the
active payroll of the Company. The Union recog-
nizes, however, that the following limitations shall
be placed on the designation of Committee-
persons:
One (1) Committeeperson may be selected from a
department in which up to forty (40) employees
per shift have been assigned by the Company; if
more than forty (40) employees per shift have
been assigned to a department, two Committee-
persons may be designated. In those departments
where over two (2) Committeepersons are se-
lected, no more than two (2) may be selected
from the same classification. In no event shall the
total number of Committeepersons exceed
plantwide ratio of one (1) Committeepersons for
each seventy-five (75) employees, except for the
following conditions. When there are less than
seventy-five (75) employees assigned to a shift, a
Committeeperson may be appointed to that shift
without affecting the plantwide ratio of one (1)
Committeeperson for each seventy-five (75) em-
ployees on the active payroll.
A provision elsewhere in the contract gives these
committeepersons (and the Union’s president and vice
president) superseniority in the event of a layoff.
When he took office in 1989, Union President David
Glenn designated four committeepersons pursuant to
this provision: two for the first shift, and one each for
the second and third shifts.2 It is unclear how many
employees were on the active payroll at that time, but
it appears that there were fewer than 200. The Com-
pany raised no objection to the Union’s designation of
four committeepersons. This arrangement continued
until April 1990, when Glenn issued a new list of offi-
cers and committeepersons, this time designating five
committeepersons, three on the first shift and one each
on the other shifts.3
When the Company’s personnel manager, Jim
Surber, received the Union’s notification, he wrote to
Glenn stating that the Company would not recognize
the third committeeperson on the first shift. The letter
stated:
[I]n accordance with Article IV of our Agreement,
the Company will recognize on a plantwide ratio,
one Committee Person for each 75 Bargaining
Unit Employees on the active payroll. At present
there are only 182 employees on the active pay-
roll with only 120 employees on the First Shift.
The Company will, therefore, recognize only two
Committee Persons for the First Shift Operation.4
139ELECTRICAL WORKERS IBEW LOCAL 1977 (A. O. SMITH CORP.)
shift). He further testified that in an attempt to accommodate the
Union, he had allowed an additional committeeperson on the first
shift because the number of employees on that shift—120—was
more than halfway to 150 (from 75).
5 He found that the April 1990 designation of a third
committeeperson was time-barred by Sec. 10(b). We agree.
6 We do not pass on the judge’s finding that the Union violated
the contract by designating two persons from the same department.
Surber received no response from the Union to this let-
ter.
In November 1990, rumors started to circulate about
upcoming layoffs. Charging Party Victor became con-
cerned about what he considered an excess of
committeepersons on the first shift and how their
superseniority might affect layoffs. He discussed his
concerns with both Surber and one of the first-shift
committeepersons, but was not satisfied with their re-
sponses.
In December 1990, Glenn posted another list of offi-
cers and committeepersons, which had some changes
as to the identities of committeepersons, but not as to
numbers; in other words, the Union still claimed three
committeepersons for the first shift. On January 10,
1991, Surber sent Glenn another letter stating again
that the third committeeperson on the first shift would
not be recognized by the Company, and that with only
173 employees on the active payroll (114 on the first
shift), ‘‘the Company will, therefore, recognize only
two committee persons for the first shift operation.’’
Victor filed the instant charge against the Union on
January 29, 1991. In February or March, the Union
withdrew one committeeperson. Even so, just before
the hearing in the instant case, an employee with more
seniority than one of the four remaining
committeepersons was laid off because of the applica-
tion of the contractual superseniority clause.
II. THE JUDGE’S DECISION
The judge found that the Union violated Section
8(b)(2) of the Act by insisting on not just the third, but
also the second committeeperson on the first shift in
December 1990.5 He concluded that with a total em-
ployee complement of 173, all the contract allowed
was one committeeperson per shift, and that the fact
that there were 114 employees on the first shift did not
mean that an additional committeeperson for that shift
was permissible.6 It appears that he interpreted the pro-
visions set forth above as affording the Union the right
to designate a committeeperson on a shift despite the
fact that a shift did not have 75 persons working on
it and that the normal plantwide ratio of one
committeeperson for each 75 employees on the active
payroll is not affected and still applies. Thus, the judge
apparently concluded that the Union was entitled to
three committeepersons, i.e., one for each shift. He
found that the Union’s conduct in appointing more
committeepersons than the contract allowed was un-
necessary to the performance of its representative func-
tion and was ‘‘arbitrary, invidious, irrelevant and thus
a mask for discriminatory motivation,’’ citing Ashley,
Hickham-Uhr Co., 210 NLRB 32 (1974). He imputed
to the Union knowledge of the coming layoffs, and
concluded that the Union inflated the number of
committeepersons because it desired to afford these in-
dividuals superseniority so that they could save their
jobs at the expense of other employees who had great-
er seniority.
III. ANALYSIS
For the following reasons, we find that the Union’s
designation of the third committeeperson on the first
shift was an unlawful attempt to induce the Company
to discriminate against certain of its employees who
had greater seniority, and thus violated Section 8(b)(2).
We do not agree with the judge, however, that the des-
ignation of a second committeeperson on the first shift
violated the Act.
Contrary to the judge, we find that the contract
clause governing the appointment of committeepersons
is ambiguous and reasonably susceptible to more than
one interpretation. Because neither party has been able
to demonstrate that the language can support only its
interpretation, rules of contract interpretation indicate
that extrinsic evidence may be examined in order to
determine the intent of the parties. Oil Workers Local
1547 v. NLRB, 842 F.2d 1141, 1144 (9th Cir. 1988).
Such evidence would include ‘‘bargaining history, the
parties’ interpretation of the contract, the conduct of
the parties, and the legal context in which the contract
was negotiated.’’ Id. Here we find that the parties’ past
practice has established a meaning for the language in
issue. Since at least 1989, the parties were in agree-
ment that two committeepersons should be allowed to
serve on the first shift. Even though Surber testified
that his acquiescence in this was merely an accommo-
dation to the Union to keep the peace, and not the real
interpretation he gave the contract language, we find
that testimony belied by the two letters he wrote to the
Union in response to its attempt to add a third
committeeperson on the first shift. Surber’s letters
cited article IV of the contract, followed by the inter-
pretation he gave that article. The interpretation ex-
pressly allowed two committeepersons on the first
shift.
Thus, the Union’s conduct in designating two
committeepersons on the first shift, and the Employer’s
acceptance and sanctioning by letter of such a practice,
reveal their intent to construe the language as allowing
two committeepersons on the first shift. The Board is
justified in relying on the parties’ own practice with
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 NLRB v. Northeast Oklahoma City Mfg. Co., 631 F.2d 669, 676
(10th Cir. 1980).
8 Because the designation of two committeepersons on the first
shift was lawful, we find no violation occurred when an employee
senior to one of the two committeepersons was laid off. Thus, we
do not adopt the judge’s finding that the Union violated Sec. 8(b)(2)
by causing Smith to discriminate against its employees in violation
of Sec. 8(a)(3).
9 In so finding, we do not rely on the judge’s reasoning for finding
this violation. The judge appeared to conclude that the Union’s ac-
tion in appointing the third committeeperson for the first shift was
arbitrary and invidious, based on his finding that it did so after hav-
ing gained knowledge of upcoming layoffs. The record evidence
shows otherwise. At the time the Union initially designated a third
committeeperson (April 1989), there was no talk of layoffs. Such
talk began the following fall, and the Union did not ‘‘inflate’’ the
number of committeepersons at that point or thereafter in December
1990, when it designated the third committeeperson, the designation
in issue.
10 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
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.’’
regard to this language.7 Indeed, it would be in error
to disregard it. Accordingly, we find no violation of
the Act by the Union in the designation of two
committeepersons on the first shift, as it appears that
the parties were in agreement that the contract lan-
guage permitted such an arrangement.8 The foregoing
discussion, however, leads to a conclusion that the
Union violated Section 8(b)(2) by its attempt, in De-
cember 1990, to add a third committeeperson on the
first shift.9 Essentially, by that attempt, the Union de-
parted from the construction of the contract by which
the parties had allowed two committeepersons on the
first shift, without showing that there was an increase
in the employee complement sufficient to justify the
extra committeeperson. Thus, regardless of whether
layoffs were imminent or not, we find that the Union’s
designation of a third first-shift committeeperson was
an attempt by it to cause the Company to discriminate
against its employees in violation of Section 8(a)(3),
by affording an employee superseniority at the expense
of other employees with greater seniority.
AMENDED REMEDY
The judge found that an unidentified employee was
laid off who would not have been had there been only
one committeeperson, instead of two, with super-
seniority on the first shift. Consequently, he provided,
inter alia, in his remedy that the Union designate its
one committeeperson on the first shift and that it notify
the Company that (1) it had no objection to the layoff
of the employee who should have been laid off had the
Company complied with the contract and (2) it had no
objection to the recall of the more senior employee
who was improperly laid off because the Company al-
lowed the Union to designate that extra
committeeperson. He also provided that the Union
make whole the latter employee.
Because we have found that the designation of a
second committeeperson to the first shift was lawful,
the judge’s remedy is not appropriate unless the
Union’s attempts to cause the Employer to accept a
third committeeperson on that shift led to the layoff of
an employee who should not have been laid off. There
is no evidence that this occurred and therefore no evi-
dence that any employee suffered a loss of wages or
benefits as a result of the Union’s unlawful conduct.
We also note that the Union discontinued its attempts
to add a third committeeperson by withdrawing any
such designations in early 1991. Therefore we do not
adopt those portions of the judge’s remedy as de-
scribed above.
CONCLUSIONS OF LAW
1. Respondent, International Brotherhood of Elec-
trical Workers, Local 1977, AFL–CIO–CLC, is a labor
organization within the meaning of Section 2(5) of the
Act.
2. By attempting to cause A. O. Smith Corporation
to discriminate against its employees by designating
committeepersons in excess of the number permitted in
its collective-bargaining agreement with Smith in order
to give said individuals superseniority rights to the det-
riment of other bargaining unit employees, the Re-
spondent violated Section 8(b)(2) of the Act.
3. The unfair labor practice found above is an unfair
labor practice affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Electrical
Workers, Local 1977, AFL–CIO–CLC, Tipp City,
Ohio, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Attempting to cause A. O. Smith Corporation
(Smith) to discriminate against its employees by desig-
nating a committeeperson in excess of the number per-
mitted in its collective-bargaining agreement with
Smith in order to give that individual superseniority
rights to the detriment of other bargaining unit employ-
ees.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Tipp City, Ohio office copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by Respondent’s rep-
resentative, shall be posted by Respondent immediately
141ELECTRICAL WORKERS IBEW LOCAL 1977 (A. O. SMITH CORP.)
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other mate-
rial.
(b) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by the Employer,
if willing, at all places where notices to employees are
customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respond-
ent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND 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.
WE WILL NOT attempt to cause A. O. Smith Cor-
poration (Smith) to discriminate against its employees
by designating committeepersons in excess of the num-
ber permitted in our collective-bargaining agreement
with Smith in order to give the individuals super-
seniority rights to the detriment of other bargaining
unit employees.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 1977,
AFL–CIO–CLC
Eric V. Oliver, Esq., for the General Counsel.
Jerry A. Spicer, Esq. (Snyder, Rakay & Spicer), of Dayton,
Ohio, for the Respondent.
Gerald Keith Victor, of Piqua, Ohio, for the Charging Party.
BENJAMIN SCHLESINGER, Administrative Law Judge. The
collective-bargaining agreement between Respondent Inter-
national Brotherhood of Electrical Workers, Local 1977,
AFL–CIO–CLC (the Union), and A. O. Smith Corporation
(Smith) provides for the designation of ‘‘committeepersons,’’
whose primary responsibility is adjusting grievances and en-
forcing the agreement. The complaint, dated March 14, 1991,
alleges that the Union designated too many committee-
persons, giving them superseniority to the detriment of other
employees in the bargaining unit in violation of the National
Labor Relations Act, 29 U.S.C. § 151 et seq. The Union, in
addition to denying that it violated the Act, alleges affirma-
tively that the complaint is barred by Section 10(b)’s 6-
month statute of limitations. The hearing was held in Colum-
bus, Ohio, on June 24, 1991.
FINDINGS OF FACT
Jurisdiction is conceded. Smith has an office in Tipp City,
Ohio, where it engages in the manufacture of electric motors.
During the 12 months preceding the issuance of the com-
plaint, it purchased and received at its facility products,
goods, and materials valued in excess of $50,000 from out-
side Ohio. I conclude that Smith is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. I also conclude that Respondent is a labor organi-
zation within the meaning of Section 2(5) of the Act.
The Union is the exclusive bargaining representative of all
of Smith’s production, maintenance, and inspection employ-
ees at its two plants in Ohio, excluding timekeepers, sales
and service employees, office and clerical employees, profes-
sional employees, and guards and supervisors as defined in
the Act. On December 22, 1988, Smith and the Union en-
tered into a collective-bargaining agreement, effective from
October 10, 1988, and expiring on October 10, 1991, which
included the following provisions:
The Company recognizes the right of the Union to
designate Committeepersons on a plantwide ratio of one
(1) Committeeperson for each seventy-five (75) bar-
gaining unit employees on the active payroll of the
Company. The Union recognizes, however, that the fol-
lowing limitations shall be placed of the designation of
Committeepersons:
One (1) Committeeperson may be selected from a
department in which up to forty (40) employees per
shift have been assigned by the Company; if more
the forty (40) employees per shift have been as-
signed to a department, two Committeepersons may
be designated. In those departments where over two
(2) Committeepersons are selected, no more than two
(2) may be selected from the same classification. In
no event shall the total number of Committeepersons
exceed plantwide ratio of one (1) Committeeperson
for each seventy-five (75) employees, except for the
following conditions. When there are less than sev-
enty-five (75) employees assigned to a shift, a
Committeeperson may be appointed to that shift
without affecting the plantwide ratio of one (1)
Committeeperson for each seventy-five (75) employ-
ees on the active payroll.
The Union shall notify the Company in writing of
the Committeeperson appointments prior to their be-
coming effective.
None of these provisions would be particularly meaningful
if it were not for additional provisions of the agreement that
give these committeepersons, in addition to the Union’s
president and vice president, superseniority for the purpose
of continuing to work in the event of a reduction in force.
That is what gives rise to this proceeding, for when Victor,
a 25-year employee, was talking in November 1990 with
some of his fellow employees about a rumor of a massive
layoff, they mutually felt that there were too many
committeepersons for the number of employees on the day
shift. He called Jim Surber, Smith’s manager of personnel,
to complain. Surber said that he had written to the Union’s
president, David Glenn, but said that Smith felt that the
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is unclear exactly when these events occurred. As will be seen,
the Union posted designations of its officers on two dates in 1990,
April 27 and December 18. Both designate the same three individ-
uals on the first shift to serve as committeepersons.
2 Surber did not object to the fact that all three committeepersons
had the same job classification, which also appears not in accord
with the agreement.
Union should have two committeepersons. Victor told Surber
that he disagreed, but he was not going to take issue with
him at that time. In December, Victor again talked with his
fellow employees about the same subject, and one of the
committeepersons, Helmut Marko, entered the conversation.
Victor complained that there were too many committee-
persons and something ought to be done about it. Marko
later reported that he had talked with Glenn, who replied that
what he had done was legitimate.1
Smith also had its complaints. On April 27, 1990, the
Union notified Smith of its list of officers, which included
three committeepersons for the first shift—Marko, Bill
Estridge, and Ralph Nottingham—and one committeeperson
on both the second and third shifts. Surber objected, writing
to Glenn that the collective-bargaining agreement required
that Smith would recognize on a plantwide ratio only 1
committeeperson for each 75 bargaining unit employees on
the active payroll. Because at that time Smith employed 182
employees on its active payroll, with only 120 employees on
the first shift (Smith also operated a second and third shift),
Surber agreed to recognize only 2 of the committeepersons
on the first shift. In his testimony he explained that, under
his interpretation of the agreement, the Union was entitled to
only 1 designee for the first 75 of the 120 employees; but,
in an attempt to reach an accommodation with the Union,
solely for the purpose of having industrial peace, he allowed
the Union to have a second committeeperson, for the addi-
tional 45 employees on the first shift, because 45 constituted
more than a majority of 75.
Glenn never responded to this letter (he testified that he
never received it, but I find that unlikely), but the issue arose
again with the Union’s notification on December 18, 1990.
In a letter dated January 10, 1991, Surber again objected, this
time calling Glenn’s attention to the fact that there were only
173 employees on the total payroll, and only 114 on the first
shift. Again, because there were 39 employees remaining,
after deducting 75 from the employees on the first shift, he
permitted the Union to designate 2 committeepersons. How-
ever, this time he also objected that the Union was entitled
to designate only one committeeperson for every 40 employ-
ees in a department. Glenn, he wrote, had designated two
committeepersons from department 94, which had only three
employees.2 Glenn did not respond to this letter, either. But
Charging Party Victor was clearly concerned, and he filed
his unfair labor practice charge on January 29, 1991. When
the complaint issued in March, the Union immediately with-
drew its designation of Nottingham as a committeeperson.
Even later, just 3 or 4 weeks before the hearing, there was
a layoff, and at least one employee with more seniority than
one of the extra committeepersons, lost his job.
The Union contends that this proceeding is barred by Sec-
tion 10(b) of the Act, noting that the first time the allegedly
illegal designations were made was in April 1990 and that
Victor knew about them at that time but did not file his
charge until January 29, 1991. If the April 27, 1990 list were
the only list posted by the Union, it would be correct. But
the Union was entitled to change its designations at any time,
and its new designations revoked its earlier ones. Glenn
issued the Union’s new list of officers in December 1990.
When the charge was filed, this list was the only effective
designation of committeeperson; and the complaint is di-
rected to that list. The events which occurred within 6
months of the filing of the charge are sufficient to establish
a violation (at least, under the counsel for the General Coun-
sel’s theory) without reference to any event outside the 10(b)
period, which may in any event be used as background to
the events at issue. Bryan Mfg. Co. v. NLRB, 362 U.S. 411
(1960); Plumbers Local 130 (Contracting Co.), 272 NLRB
1045, 1047 fn. 3 (1984). I conclude that the unfair labor
practice charge was filed well within the 6-month period.
Regarding the merits of the complaint, Dairylea Coopera-
tive, 219 NLRB 656 (1975), enfd. sub nom. Teamsters Local
338 v. NLRB, 531 F.2d 1162 (2d Cir. 1976); and Gulton
Electro-Voice, Inc., 266 NLRB 406 (1983), enfd. sub nom.
Electrical Workers IUE Local 900 v. NLRB, 727 F.2d 1184
(D.C. Cir. 1984), hold that the grant of superseniority rights
to union officials discriminates against employees for union-
related reasons and is thus inherently antithetical to the em-
ployees’ Section 7 rights. However, superseniority is valid if
it is necessary to further the effective administration of the
collective-bargaining agreement at the plant level.
The General Counsel’s complaint is not premised on the
invalidity of the contractual superseniority and committee-
person designation provisions. Rather, he contends that the
Union arbitrarily misused its valid superseniority provision
by appointing too many committeepersons, and appointing
them from the same department, to the detriment of the other
employees who had greater seniority but would be laid off
before the union officials and designees. The only fact relied
on by Glenn to justify his action was that he was trying to
mollify the truckdrivers who were unhappy that they had not
been represented by a committeeperson. Thus, he appointed
Nottingham, who served half his time as a truckdriver. The
truckdrivers’ unhappiness, however, hardly justifies the ap-
pointment of three committeepersons or the duplication of
the department from which the appointments were made.
Glenn could have appointed Nottingham as the Union’s sole
committeeperson and satisfied the truckdrivers’ complaint.
Thus, the Union’s conduct was unnecessary to the perform-
ance of its representative function, Postal Service, 254
NLRB 74 (1981); Explo, Inc., 235 NLRB 918 (1978). Using
the test of Ashley, Hickham-Uhr Co., 210 NLRB 32 (1974),
it was ‘‘arbitrary, invidious, irrelevant and thus a mask for
discriminatory motivation.’’
The Union does not take issue with the General Counsel’s
theory. Rather, it argues that it never named too many
committeepersons, while the General Counsel contends that
the Union violated the collective-bargaining agreement. His
argument is that the Union’s right to designate 1
committeeperson for each 75 employees was limited to the
number of employees on the particular shift. Thus, although
Smith employed a total of 173 employees, only 114 worked
on the first shift; and only the number of 114 may be used
to determine the number of committeepersons that may be
designated.
The above-quoted provision does not state that the des-
ignation is limited to a shift. Rather, it provides that the
143ELECTRICAL WORKERS IBEW LOCAL 1977 (A. O. SMITH CORP.)
number is determined based on the total complement of em-
ployees on Smith’s active payroll. However, the rule is lim-
ited for those shifts on which are employed less than 75 em-
ployees. There, a committeeperson may still be appointed
‘‘without affecting’’ the plantwide ratio. Therefore, the
plantwide ratio remained as 1 for 75, and that ratio still ap-
plies. The Union contends that the limitation means that no
account should be taken for the number of employees on the
second and third shifts. That is, when computing the number
of committeepersons that the Union is entitled to on the first
shift, or any shift with more than 75 employees, the number
of employees on the two other shifts should still be consid-
ered in the formula.
I disagree. The provision was obviously intended to afford
the Union the right to designate a committeeperson on a shift
despite the fact that the shift did not have 75 employees
working on it. The normal ratio of 1 to 75 would be waived
if there were less than 75 employees. Otherwise, in com-
puting the ratio for shifts with more than 75 employees, the
ratio of 1 to 75 still applied. Furthermore, in determining the
number of committeepersons that the Union is entitled to
designate, only the amount of employees on that shift should
be counted. The Union’s theory makes no sense. For exam-
ple, if Smith employed 225 employees, the Union should be
entitled to 3 committeepersons. However, if the employees
were on 3 shifts, 77 on the first, and 74 on the remaining
2, under the Union’s formula, it would be entitled to 5, 2 be-
cause the second and third shifts had less than 75 employees,
and 3 on the day shift because the formula is computed on
the basis of all 225 employees, despite the fact that only 77
persons were employed on that shift. I find that the parties
would not have agreed to such an improbable result.
Furthermore, another limitation on the Union’s right to
designate was that one committeeperson might be designated
from a department with up to 40 employees. Estridge and
Nottingham were in the same department (94), and the joint
designation of both of them, in a department of 3 employees,
violated the clear language of the agreement. The General
Counsel contends that, although Marko worked in a different
department (98), his department and that of the two other
committeepersons were considered the same for layoff pur-
poses. That may be so, but the parties to the collective-bar-
gaining agreement said nothing about limiting the Union’s
right to designate from departments which are treated the
same for layoff purposes. I will, therefore, construe the
agreement literally, and find that the only violation of the
contract consisted of the Union’s designation of two persons
from the same department.
Accordingly, I find that under the terms of the contract the
Union was entitled to only one committeeperson on the day
shift, because Smith employed 114 employees, and was not
entitled to designate both Estridge and Nottingham, because
they were employed in the same department. Surber’s agree-
ment to permit the Union to have two committeepersons on
that shift was, by his own admission, never intended by the
parties to the agreement, but was his accommodation to the
Union to keep the peace. The Union offered no credible jus-
tification for the revision of its agreement. Grievances had
not increased. As of the date of the hearing, only 2 griev-
ances had been filed in 1991. In 1990 14 or 15 were filed.
Accordingly, there was no need to add two committeepersons
on the day shift and to modify the terms of the parties’
agreement.
Victor and his fellow employee were aware in November
1990 of the imminence of a layoff. The Union must be pre-
sumed to have known about it, too. Nonetheless, it continued
to inflate the number of the committeepersons, and I infer
the reason for that was that Glenn desired to give these indi-
viduals superseniority so that they could save their jobs, at
the expense of others who had greater seniority. In the ab-
sence of a legal contractual provision authorizing Glenn’s
modification, the Union’s action arbitrarily attempted to in-
duce Smith to unlawfully discriminate against certain of its
employees who had greater seniority. I conclude that the
Union violated Section 8(b)(2) of the Act.
In May or June 1991, there was a layoff. Because the
Union was permitted to designate a second committeeperson,
and he had superseniority, there was one employee with
more seniority who was laid off and should not have been.
By making its designation of too many committeepersons,
the Union caused that to happen; and it is responsible to the
employee who was illegally laid off. Rubber Workers Local
374 (Uniroyal, Inc.), 205 NLRB 117 (1973), enfd. mem. 492
F.2d 1245 (7th Cir. 1974). I conclude that the Union violated
Section 8(b)(2) of the Act by causing Smith to discriminate
against its employees in violation of Section 8(a)(3) of the
Act.
The unfair labor practices found herein, occurring in con-
nection with Respondent’s business, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce 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, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Specifically, I shall order the
Union to make whole any bargaining unit employee for any
loss of wages and other benefits he or she may have suffered
by reason of being laid off as a result of the designation of
a committeepersons in excess of that allowed under the col-
lective-bargaining agreement between the Union and Smith.
That amount due shall be computed in accordance with the
formula prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The record does not definitively show which employee
was laid off when he or she should not have been. The iden-
tity of the employee may be determined in the compliance
phase of this proceeding. What is clear is that, in order to
remedy the violations and to recreate what should have hap-
pened had no violations occurred, I shall recommend that the
Union designate its one committeeperson on the first shift
and notify Smith that it has no objection to the layoff of such
employee as should have been laid off had it complied with
the collective-bargaining agreement and no objection to the
recall of such employee who was improperly laid off in May
or June 1991 (the layoff occurred 3 or 4 weeks before the
hearing in this proceeding) because Smith allowed the Union
to designate an extra committeeperson. This remedy is loose-
ly based on the rationale of the Board’s remedy in Rubber
Workers Local 374, 205 NLRB at 122–123.
[Recommended Order omitted from publication.]