Electronic Workers Local 221 (Kidder, Inc.)

National Labor Relations Board - Board Decisions

Apr 27, 2001

333 N.L.R.B. 1149 (N.L.R.B. 2001)

ELECTRONIC WORKERS LOCAL 221 (KIDDER, INC.) 1149
International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, Local
221, AFL–CIO and Kidder, Inc. Case 1–CB–
9338
April 27, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN,
AND WALSH
On September 30, 1999, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the Employer filed an answering brief to the Respon-
dent’s exceptions. The Employer filed cross-exceptions,
and the Respondent filed an answering brief to the Em-
ployer’s cross-exceptions. The General Counsel filed a
brief in support of the judge’s decision.
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 briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.1
For the reasons stated by the judge, we find (1) that the
Respondent violated Section 8(b)(1)(A) and (2) of the
Act by demanding that the Employer interpret the par-
ties’ contractual superseniority clause in a manner which
would accord the Respondent Union officials supersen-
iority for terms and conditions of employment, such su-
perseniority not being limited to layoff and recall and not
otherwise required to further the effective administration
of the collective-bargaining agreement, and (2) that the
Respondent further violated the Act by demanding arbi-
tration of the matter. We also deny the Employer’s
cross-exceptions to the judge’s failure to order the Re-
spondent to reimburse it for costs and fees the Employer
incurred as a result of the Respondent’s arbitration de-
mand. We do not find a reimbursement remedy neces-
sary to effectuate the policies of the Act in this case.2

1 We have modified the notice to comport with the recommended
Order.
2 Sec.10(c) authorizes the Board, upon finding an unfair labor prac-
tice, to order the respondent to “take such affirmative action . . . as will
effectuate the policies of this Act.” It is well established that the Board
has broad discretionary authority under this section to fashion remedies
that effectuate the policies of the Act and that the Board’s exercise of
its discretion is subject to limited judicial review. See Fibreboard
Paper Products Corp. v. NLRB, 379 U.S. 203, 216 (1964).
The Employer cites Service Employees Local 32B-32J (Nevins Realty),
313 NLRB 392 (1993), enfd. in relevant part 68 F.3d 490 (D.C. Cir.
1995). The Board in that case adopted, without comment, the judge’s
remedy ordering the respondent union to reimburse employer Nevins for
reasonable expenses and fees incurred in defending against an arbitration
demand. Although the Board did not speak directly to the remedial issue,
the violation there was different from the one here. Unlike here, the
Board in Nevins Realty had found that the grievance was filed not to
resolve a dispute involving Nevins’ employees but rather to satisfy the
respondent’s interests elsewhere. The Board also found that the respon-
dent’s grievance was not reasonably based on the language of the contract
and that its work-preservation defense to the 8(b)(4)(B) allegation was
similarly without a colorable basis. It is well within the Board’s discre-
tion to have granted the remedy on the particular facts of Nevins Realty
and to deny it on the particular facts here.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Union of Elec-
tronic, Electrical, Salaried, Machine and Furniture Work-
ers, Local 221, AFL–CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in the Order.
Substitute the attached notice for that of the adminis-
trative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT attempt to cause Kidder, Inc. to accord
superseniority for terms and conditions of employment
that are not limited to layoff and recall and are not oth-
erwise required to further the effective administration of
the collective-bargaining agreement.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days of the date of the Board’s
Order, notify the American Arbitration Association that
we are withdrawing our request for arbitration of the
grievance filed with Kidder, Inc. on April 21, 1998.
INTERNATIONAL UNION OF
ELECTRONIC, ELECTRICAL, SALARIED,
MACHINE AND FURNITURE WORKERS,
LOCAL 221, AFL–CIO

Member Hurtgen notes that although it is within the Board’s discre-
tion to grant the requested costs and fees in appropriate circumstances,
he finds no such circumstances present in this case. In this regard, he
notes that the Respondent did not pursue arbitration after complaint had
issued, and specifically requested that arbitration proceedings be held in
abeyance. Member Hurtgen also questions whether the Board should
enmesh itself in disputes over the payment of purely contractual admin-
istrative expenses such as the administrative arbitration filing fee in-
volved here. The record contains no other evidence of expenses in-
curred in connection with the arbitration.
333 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150

Kathleen F. McCarthy, Esq., for the General Counsel.
Jay M. Presser, Esq., of Springfield, Massachusetts, for the
Respondent.
James O. Hall, Esq., of Somerville, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Springfield, Massachusetts, on August
3, 1999. Subsequently, briefs were filed by all parties. The
proceeding is based on a charge filed October 16, 1998,1 by
Kidder, Inc., of Agawan, Massachusetts. The Regional Direc-
tor’s complaint dated February 19, 1999, alleges that Respon-
dent International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, Local 221, AFL–CIO has
violated Section 8(b)(1)(A) and (2) of the Act by attempting to
cause the Employer to discriminate against employees who are
not Respondent’s president by granting Respondent’s president
preferential treatment based on his position with Respondent.
On a review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a labor organization within the meaning
of Section 2(5) of the Act and it has had a collective-bargaining
history with Kidder, Inc., a manufacturer and distributor of
printing equipment that annually ships goods and materials
valued in excess of $50,000 directly to points outside of Massa-
chusetts. I find that the circumstances meet the Board’s juris-
dictional standards and that it effectuates the policy of the Act
to exercise jurisdiction in a case of this nature.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent has represented a unit of production and
maintenance employees at the employer since 1955. A collec-
tive-bargaining agreement in effect from November 1, 1995,
through October 7, 2000, includes the following provision:

Article IV-SENIORITY

D. Top seniority, “Super Seniority” for the purpose of layoff
only will be granted to five (5) Union personnel who hold the
position of President, Vice President, Recording Secretary,
Chief Steward and Negotiating Committeeman.

This clause first appeared in the 1983–1986 agreement and
was negotiated when there were about 100 employees in the
bargaining unit. The superseniority clause has never been
amended and has appeared in each successive contract.
John Rico is the Employer’s vice president of human re-
sources. He has been employed at Kidder since 1974 and he
was part of a group of employees who purchased the business
in 1995. In mid-1996 the unit had 82 employees, however, the

1 All the following dates will be in 1998, unless otherwise indicated.
employer experienced a downturn in sales and, correspond-
ingly, production. It had significant layoffs in early 1998 and
currently there are only about 35 employees in the bargaining
unit, with another 19 laid off with recall rights.
Inconsistent and declining sales created a continuing short-
age of work for some classifications of unit employees. When
it appears to management that a slow period will be less than 3
weeks, Rico attempts to move employees from slow areas to
other jobs or if certain departments are busier than others, he
moves employees from other areas into the busy department.
In short-term moves, the employee retains his wage rate regard-
less whether the job he is temporarily performing is a lower
paid classification and also regardless whether he is a union
officer entitled to superseniority or simply a unit member.
However, if production slowdowns are expected to be 3 weeks
or longer, Rico follows the formal layoff procedures contained
in the collective-bargaining agreement and any employee who
moves to a different pay classification in a formal layoff situa-
tion, has his wage rate adjusted accordingly.
Management has production control meetings every Thurs-
day morning and then determine if a layoff is necessary, and if
so, how many need to be laid off. Affected employees are
given a week’s notice of the layoff, usually on a Thursday af-
ternoon. Production needs and an employee’s skills, combined
with seniority, determine who is going to be laid off. The Un-
ion is given a copy of the seniority list with the names high-
lighted of those to be laid off. The employee is called starting
with the most senior. The employee is given the option of tak-
ing the layoff, or exercising his seniority to either transfer to an
open position on a list he presents to them, or to bump an em-
ployee of lesser seniority in an area not affected by the layoff.
If an employee subject to layoff bumps into a higher paid posi-
tion, the employee is paid the higher rate. If he bumps into a
lower paid position he receives the lower rate. If, however, the
employee formerly worked in that department at a higher rate,
he would receive that higher rate. In addition, if an employee
performs higher rated work for part of a week, he would re-
ceive the higher rate for those hours. The Employer applies
these rules whether or not an employee is a union officer sub-
ject to superseniority.
In April 1998 management determined that it needed to lay
off 8 of the 20 employees in the machining and welding de-
partments. William Pooler, the Employer’s only welder, has
been employed for 26 years and has been a certified welder
since 1987. His wage rate as a welder in April 1998 was
$14.51 an hour. Pooler, the local union president, was the only
union officer on the layoff list.
Rico met with Pooler, who was accompanied by Union
Representative Frank Gramolini. Rico told Pooler his name
was highlighted on the layoff list, and gave him the opportunity
to exercise his contractual superseniority to bump into a job
elsewhere. Pooler said no, he was not going to be moved
around; that he had superseniority and that meant he was going
to stay where he was. Rico responded that Pooler had to pick a
position. Pooler replied he was going to grieve the matter and
left the meeting insisting he would not bump anyone. The next
day Rico approached Pooler who then agreed to move to the
maintenance department where were two unit employees but
Pooler insisted he would not displace either of the existing
ELECTRONIC WORKERS LOCAL 221 (KIDDER, INC.) 1151
insisted he would not displace either of the existing mainte-
nance employees. Pooler told Rico: “Don’t touch my rate;
don’t touch my classification; and I won’t bump anyone.” Rico
responded that he did not care where Pooler went but there was
going to be one less person as a result of Pooler’s move.
Pooler, under protest, then bumped maintenance employee
Jerry Talbot who was laid off as of April 17.
On April 21 Pooler and Chief Steward Frank Gramolini filed
the following grievance alleging the employer had violated
article iv seniority paragraph d of the collective-bargaining
agreement:

In the past Officials of the union with superseniority were not
put on a layoff list, they were moved to other areas of the shop
where there was work available that the Official was qualified
to do. This was done without any paycuts or bumping of an-
other union member.
REMEDY SOUGHT
To pay all monies and benefits lost to William Pooler and
Jerry Talbot. To reinstate William Pooler and Jerry Talbot to
their previous positions.

Pooler began working in maintenance on April 17 with his
wage rate reduced to $14.25 an hour, the classification rate for
that maintenance position. He continued to perform necessary
but unanticipated welding repair work and performed 36 hours
of welding work and only 4 hours of maintenance work that
first week and was paid the higher welding rate for those hours
he spent welding. (The Employer otherwise has not had the
need to employ a full-time welder anytime since April 1998.)
A preliminary meeting over the grievance was held April 21.
This was followed by a regular meeting where the Union took
the position that Pooler should not have been on the layoff list
at all, that he could do other jobs but that the employer could
not touch his rate of pay or classification or force him to bump
anyone. At this meeting Pooler was concerned by the anticipa-
tion that he was going to lose money and Rico again explained
that they had to make room for Pooler by bumping someone.
On May 6, 1998, Rico submitted a written answer denying the
grievance.
In the first week in May management decided to resume per-
forming inhouse sheet metal work that had been jobbing out.
Pooler, who had been the last sheet metal employee prior to the
contracting out of the work, was recalled to sheet metal on May
4 where he received $15.10 an hour, a rate higher than his
welding rate. Talbot then was recalled to maintenance.
By letter dated September 16, the Charging Party-Employer
was notified that the Local union was submitting the following
grievance to arbitration:

The Company improperly applied the collective-bargaining
agreement with regard to placing the Union President on the
layoff list.

By letter of September 18, the Charging Party-Employer re-
ceived official notice from the American Arbitration Associa-
tion that the Union was demanding arbitration and on October
2, the employer’s attorney returned the list of potential arbitra-
tors as required but advised that the Employer did not believe
that arbitration of the claim was lawful.
On October 5, the local union proposed to the Charging
Party-Employer that the parties submit the Union’s interpreta-
tion of the superseniority clause to the Board for a ruling and
that if the Board determined the Union’s interpretation was
lawful, the Company would grant Pooler’s grievance, other-
wise, the Union would withdraw the grievance. The Employer
rejected the Union’s proposal noting that it was understood that
the Board does not issue advisory opinions and it advised the
Union, that unless the Union promptly withdrew the arbitration
request, the Employer would be forced to file a charge. After
the Union replied that it would not withdraw the arbitration and
the Charging Party-Employer filed the instant charge.
In early January 1999, another reduction in force was sched-
uled and on January 4, 1999, the Union grieved the layoff and
bumping of those involved. The grievance was identical to the
April 21 grievance and was denied. It is currently being held in
abeyance pending the result of the earlier grievance. On Febru-
ary 5, 1999, the American Arbitration Association notified the
parties that the arbitration hearing would be held on April 20,
1999. Meanwhile, in February 1999 the Employer’s production
required little sheet metal work but it had available work in the
mechanical assembly area. Pooler, the only employee in sheet
metal, was transferred to mechanical assembly without any
need for bumping. The move resulted in a reduction in
Pooler’s rate from $15.10 to $13.65 an hour and generated a
grievance that is identical to the two earlier grievances. The
Charging Party-Employer denied the grievance and it is being
held in abeyance as is the American Arbitration Association
proceeding.
Discussion
The Respondent argues the validity of a contractual super-
seniority clause that protect union officials from being bumped
from their jobs citing Goodyear Tire & Rubber Co., 322 NLRB
1007, 1008 (1997), and particularly the Board’s language
which states:

Second, and perhaps even more significantly, we be-
lieve that once the Respondents have shown sufficient
evidence to justify their application of the superseniority
clause, the fact that there might be other approaches is ir-
relevant.

It then argues that the way Local 221 would apply supersen-
iority would not result in “detriment” to any bargaining unit
employee, that President Pooler would retain his job and pay
rate, and do available work around the shop, he would not
bump any other employee and no other employee would be laid
off in his place. It also contends that by pursuing its applica-
tions of the superseniority it leads to a less discriminatory result
by saving the job of a union member.
The General Counsel points out that the policy of the Act in
general is to insulate job benefits from union activities. The
Board finds superseniority clauses lawful based on the ground
that they further the effective administration of bargaining
agreements by encouraging the continuity of union representa-
tion on the job, thereby serve a legitimate statutory purpose to
the benefit of all unit employees. However, superseniority
clauses that are not on their face limited to layoff and recall are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
presumptively unlawful. See Dairylea Cooperative, 219 NLRB
656 (1975). The Board has found that it is an overly broad use
of superseniority to allow a steward or retain a particular job,
not merely any job, on the relevant shift, see Mechanics Educa-
tional Society Local 56 (Revere Cooper), 287 NLRB 935, 936
(1987), and superseniority cannot lawfully be used to prevent
downgrading (and a possible diminishment of pay) within the
same area of representation because this is beyond the mini-
mum extent necessary for the union representative to carry out
his or her representational duties. See Joy Technologies, 306
NLRB 1 (1992), where a union’s demand that a vacant higher
paying position be transferred from one plant to another so that
the position could be awarded to the union’s committeeman in
order to accommodate his desire to remain committee person in
that plant was improper.
Here, there is no showing that the Employer’s placement of
the union president’s job position on the layoff list, the re-
quirement that the officer either bump another employee or
more to a vacant position, or the fact that the Employer pays to
the officer the wage rate of the position he bumps into would
cause any disruption in continuity of representation. Moreover,
this Employer has a small work force where 5 of 35 (or less),
unit employees are union officials and it is not a situation where
no union official would be available or a large work force is
involved and where a union steward might be required to spend
his time entirely or substantially on union matters. Otherwise,
the Union is attempting to preserve the union president’s pay
rate or position in a particular job and to prevent the employer
from making an ultimate reduction in staffing solely because
the primary job position affect by diminishing production re-
quirements is one held by a person with superseniority.
It is clear that these “benefits” (wage protection and job clas-
sification protection) would not exist for unit employees who
are not union officials and who can be placed on layoff lists
from which they exercise bumping rights, and who, following
the exercise of their bumping rights, are paid the rate for that
position. Accordingly, such additional benefits, available only
to union officials, would be discriminatory and, therefore,
unlawful.
Here, I find that the Employer’s application of its layoff rules
is not shown to be inconsistent with its past practices. The
Union, by demanding unlawful favoritism and attempting to
enforce its demands by arbitration, would force the Employer
to discriminate against other employees in violation of Section
8(a)(3) of the Act. Such action by the Union is a violation un-
der Section 8(b)(2) of the Act. See Auto Workers Local 1161
(Pfaudler Co.), 271 NLRB 1411 (1984); Distillery Workers
Local 122 (Oz Liquor), 261 NLRB 1070 (1982); and Elevator
Constructors (Long Elevator), 289 NLRB 1095 (1988), all
cited by the General Counsel.
The superseniority clause involved here is valid on its face,
however, if the union interpretation was incorporated into the
language of the collective-bargaining agreement it would not
be. Moreover, this language was not the subject of bargaining
and no agreement was reached by the parties and an attempt to
enforce its unilateral interpretation is improper.
In the instant case the Union has submitted the April 21,
1998 grievance to arbitration. If the arbitration found in the
Union’s favor, the Employer would be forced to violate Section
8(a)(3) of the Act. Therefore, the Union’s effort to have a law-
ful clause interpreted in a fashion that would violate the Act is
unlawful and the Union’s attendant submission of the Pooler
grievance to arbitration is a violation of Section 8(b)(1)(A) and
(2) of the Act, as alleged, see Plasterers Local 337 (Marina
Concrete), 312 NLRB 1103 (1993).
CONCLUSIONS OF LAW
1. Respondent International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, Local 221, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
2. Kidder, Inc. is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. Respondent and the Employer have a collective-
bargaining agreement and it will effectuate the purposes of the
Act to assert jurisdiction here.
4. The Respondent’s demand in its grievance filed April 21,
1998, would accord union officials superseniority for terms and
conditions of employment not limited to layoff and recall and
not otherwise required to further the effective administration of
the collective-bargaining agreement, in violation of Section
8(b)(1)(A) of the Act.
5. By demanding that the Employer interpret the parties su-
perseniority clause in the manner presented in its grievance
filed April 21, 1998, and by further demanding arbitration of
the matter, the Respondent has violated Section 8(b)(1)(A) and
(2) of the Act.
REMEDY
Having found that the Respondent Union has engaged in un-
fair labor practices in violation of the Act, it will be recom-
mended that it be ordered to cease and desist therefore and that
it take certain affirmative action to effectuate the policies of the
Act.
Inasmuch as it is found that the Union’s demanded interpre-
tation superseniority clause in dispute is unlawful, it is ordered
that Respondent Union cease and desist from demanding that
employee Kidder, Inc., accede to its illegal interpretation by
requiring arbitration of its demand and it shall be ordered to
withdraw the submission of its grievance in this matter from the
American Arbitration Association. Otherwise, it is not consid-
ered necessary that a broad Order be issued.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended2
ORDER
The Respondent, International Union of Electronic, Electri-
cal, Salaried, Machine and Furniture Workers, Local 221,
AFL–CIO, its officers, agents, and representatves, shall
1. Cease and desist from

2 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.
ELECTRONIC WORKERS LOCAL 221 (KIDDER, INC.) 1153
(a) Attempting to cause Kidder, Inc., to accord superseniority
for terms and conditions of employment that are not limited to
layoff and recall and are not otherwise required to further the
effective administration of the collective-bargaining agreement.
(b) In any like or related manner restraining or coercing the
employer in the exercise of the rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of this Order notify the
American Arbitration Association that it is withdrawing its
request for arbitration of the grievance filed with Kidder, Inc.
on April 21, 1998.
(b) Within 14 days after service by the Region, return after
signing by the Respondent’s authorized representative, copies
of the attached noticed marked “Appendix,”3 for posting by the
employer at its Agawan, Massachusetts facility, if the employer
is willing and maintain for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps the
Respondent has taken to comply.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”