Expedient Services, Inc.079

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 938 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Expedient Services, Inc. and Mary L. Wilson
International Association of Machinists & Aerospace
Workers Local Lodge 1306 and Mary L. Wilson.
Cases 12-CA-7079 and 12-CB-1666
August 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
MURPHY AND WALTHER
Upon charges filed by Mary L. Wilson, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 12,
issued a consolidated complaint on July 27, 1976,
against Respondents Expedient Services, Inc., herein
the Employer or Expedient, and International
Association of Machinists & Aerospace Workers,
Local Lodge 1306, herein Local Lodge 1306 or the
Union. Copies of the charges, consolidated com-
plaint, and notice of hearing before an Administra-
tive Law Judge were duly served on the Respondents
and Charging Party. In substance, the consolidated
complaint alleges Expedient violated Section 8(a)(3)
and (1) of the Act and Local Lodge 1306 violated
Section 8(b)(1)(A) and (2) of the Act by maintaining
and enforcing a collective-bargaining agreement
which grants union stewards and/or principal offi-
cers superseniority for purposes of layoff, recall, and
demotion.
The answers of Expedient and Local Lodge admit
various allegations of the consolidated complaint but
deny the commission of any unfair labor practices.
On October 4, 1976, the Charging Party, General
Counsel, and Respondents executed a stipulation in
which they agreed that certain documents shall
constitute the entire record herein' and that no oral
testimony is necessary or desired by any of the
parties. The parties waived all immediate proceed-
ings before an Administrative Law Judge and
petitioned that this case be transferred to the Board
for the purposes of making findings of fact and
conclusions of law and issuing an appropriate order,
reserving to themselves only the right to object to the
materiality, competency, or relevancy of any of the
stipulated facts.
By order dated February 9, 1977, the Board
approved 2 the stipulation, and transferred the
proceedings to itself. Thereafter, the General Counsel
and Respondent Union filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I The stipulated record consists of the charges, order consolidating cases,
consolidated complaint, notice of hearing (an order postponing hearing
indefinitely was subsequently issued by the Regional Director on September
22, 1976). the answers, stipulation, and exhibits thereto.
231 NLRB No. 151
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record, as stipulated by the parties,
as well as the briefs filed by the General Counsel and
Respondent Union, the Board makes the following
findings and conclusions:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent Employer, a Florida corporation, is
engaged in the business of providing janitorial
services to the National Aeronautics and Space
Administration (NASA), an agency of the United
States Government, at Kennedy Space Center (KSC)
in Florida. During the past 12 months, Respondent
Employer supplied janitorial services to NASA, at
KSC, valued in excess of $50,000.
The parties stipulated, and we find, that the
Respondent Employer is now, and has been at all
times material here, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZAtION INVOLVED
The parties stipulated, and we find, that Respon-
dent Local Lodge 1306 is now, and has been at all
times material here, a labor organization within the
meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The Issue
The question presented is whether the Respondents
violated Section 8(a)(3) and (1). 8(b)(1)(A), and
8(b)(2) by maintaining and enforcing a clause in their
collective-bargaining agreement which reads:
19.3.1 For the purpose of layoff, recall from
layoff, and demotions, union stewards, chief
stewards and principal officers (president, vice
president, recording secretary, secretary-treasur-
er) will be deemed to hold the most seniority in
service and classification seniority.
B. The Stipulated Facts
As indicated, the collective-bargaining agreement
between Expedient and Local Lodge 1306 grants, to
union stewards and principal officers, service and
classification superseniority for purposes of layoff,
recall, and demotion. Service seniority is an employ-
ee's date of hire, classification seniority is the length
2 Members Jenkins and Penello dissented.
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EXPEDIENT SERVICES, INC.
of time he or she has held a particular job
classification. Classification seniority is the applica-
ble standard when demotion is involved, whereas
service seniority controls in layoff consideration.
On or about September 10, 1975, Respondent
Expedient notified Charging Party Wilson, one of its
five "cleaning specialists," that she would, effective
the following day, be demoted to a janitor job
classification. Wilson was hired on August 3, 1964,
and had become a cleaning specialist on February 1,
1973.
At the time Wilson was notified of her impending
demotion, Dora Parker, a union steward and officer
(recording secretary), was also employed as a
cleaning specialist. She had held that classification
since her date of hire, February 1, 1973. Thus Wilson
and Parker held equal classification seniority, dating
from February 1, 1973, but Wilson had approximate-
ly 8-1/2 years' service seniority over Parker. That she
did meant, in the absence of superseniority consider-
ations, she was effectively "senior" to Parker within
the cleaning specialist classification, since it has been
Respondents' practice to utilize overall service
seniority to "break ties" in classification seniority.
Pursuant to Expedient's notification, Wilson be-
came a janitor. Her addition to the janitor classifica-
tion caused a layoff, governed by service seniority.
The employee laid off held greater service seniority
than steward Parker, so absent superseniority, Parker
would have been laid off. It is, however, stipulated
that Parker could have chosen not to exercise her
classification superseniority (permitting the retention
of Wilson as a cleaning specialist) and, thereupon,
utilized her service superseniority to have prevented
her layoff; and had she done so she would have
remained as a steward, on the same shift previously
worked, and in the same work area.
C. Contentions of the Parties
The General Counsel alleges the superseniority
provision is violative in two fundamental respects.
First, because it extends superseniority beyond layoff
and recall and encompasses demotion determina-
tions, the provision runs afoul of our holding in
Dairyllea Cooperative Inc.3 Second, and without
regard to whether or not such an extension is
permissible, the entire provision is unlawful because
its class of beneficiaries includes not only union
stewards but "principal officers" of Local Lodge
1306.
Respondent Union contends that the proceeding
involves, in essence, only a layoff and not a demotion
' 219 Nl.RB 656 (1975), Member Fanning dissenting. enfd. sub norm.
. 1 R B. v. h/A1. Drivers & Dairs Emploveev Ltoal 338. International
Brotshierhood s1 tleansters, Chauffeurs. W4arehosusmen anid Helpers of
,4 rm iso, 51 1F 2d I 1 2 (( A 2, 1976).
since the causative factor in Wilson's movement from
cleaning specialist to Janitor was a "reduction in
force" decision. The Respondent Union does not,
however, dispute that Wilson was, indeed, demoted
to janitor and that, had Parker so elected, she could
have prevented her layoff and remained in the same
work area, on the same shift, through the exercise of
her service superseniority. Respondent Union also
asserts the superseniority provisions are not unlawful
by virtue of their coverage of union officers because,
as stipulated, all officers are also stewards. The
General Counsel responds that, because there is no
requirement that officers be stewards, or the reverse,
the Respondent Union's argument on this point
deals in irrelevancy. 4
D. Discussion
Our recent decisions in Hospital Service Plan of
New Jersey and Medical-Surgical Plan of New Jersey,
227 NLRB 585 (1977),5 and United Electrical, Radio
and Machine Workers of America, Local 623 (Limpco
Mfg., Inc.), 230 NLRB 406 (1977), control the
disposition of this case.
Preliminarily, the extension of service superseniori-
ty, under conditions where such seniority is the
exclusive governing factor for layoff determinations,
cannot be said to run afoul of Dairylea itself, at least
to the extent the beneficiary is a union steward. In
Dairylea, the Board held that providing a steward
superseniority, for layoff purposes, was presumptive-
ly valid.
In Hospital Service Plan, supra, the applicable
contractual provision provided stewards "super-se-
niority for layoff purposes only." By virtue of a
supplementary agreement between the parties, how-
ever, a union steward, when faced with the deletion
of his position, was permitted to displace any
employee senior to himself if no position of equal
grade level was open or available. The steward in
that case had his accountant grade level VI position
deleted. Exercising his superseniority, he bumped a
senior accountant grade level VI, who, in turn,
"bumped down" to a level V position, displacing the
incumbent. Significantly, the steward "could have
bumped downward into the grade V accountant
position ... and still be kept on the job." 6 We found
the procedure did not violate the statute.
Although Hospital Service Plan involved a provi-
sion limited, by its terms, to "layoff only," it was, as
the above-recited facts make clear, a provision which
did more than that. It not only insulated the steward
from layoff, but, by providing the steward with the
4 As indicated at the outset, the Respondent Employer did not file a
brief.
Chairman Fanning concurred.
' 227 NLRB at 587.
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to laterally bump for grade level retention
purposes, also insulated him from, in effect, "demo-
tion." And the decision in Hospital Service Plan
acknowledged the substantial relationship between
the two.
If . . . superseniority for stewards does not
permit lateral bumping, then it means nothing at
all. To require a steward to exercise superseniority
only to take the lowest-rated job rather than be
laid off would hardly aid in retaining stewards,
except perhaps in dire economic circumstances
when no other position could be found elsewhere.
The rationale of that holding fully applies here.
Parker's exercise of her classification superseniority
was, like a lateral movement, intended to retain what
she had: she did not, by virtue of the superseniority
rights she held, gain anything. 7 That exercise was, we
affirm, a valid one and does not contravene our
Dairylea holding.
So too, the breadth of the beneficiary class of the
clause presented here does not conflict with Dairylea.
And we agree with Respondent's assertion that the
extension of similar superseniority, for similar pur-
poses only, to union officers, is in keeping with the
legitimate objectives Dairylea articulated.
As we stated in Limpco, Mfg., supra:
What is at stake is the effective and efficient
representation of employees by their collective-
bargaining representatives. Certainly, the repre-
sentational activities carried out by union officials
involved in the administration of the collective-
bargaining agreement on behalf of employees
extend beyond the narrow confines of grievance
processing. These encompass at the very least a
functioning local to assert the presence of the
union on the job. The Act guarantees employees
the right to be so represented through the
collective-bargaining process. In fact, perhaps the
most important union officer, the president, is
usually not involved in grievance proceedings.
In concluding that Dairylea could not fairly be
read to circumscribe which union representatives
could be accorded otherwise lawful superseniority,
7 Member Murphy, as set forth in her concurring opinion in Union
Carbide Corporation Chemical and Plastics Operations Division, 228 NLRB
1152 (1977). would find presumptively lawful job retention superseniority
clauses, including layoff, recall, shift assignment, or retention of the same
Limpco, Mfg. held that, if the benefited officers in
question posessed responsibilities "bear[ing] a direct
relationship to the effective and efficient representa-
tion of unit employees," the officers were not barred,
by the statute, from enjoying the benefits.
Here, where all union officers are also stewards,
that test is, necessarily, met. Moreover, the General
Counsel does not dispute the assertion that local
lodge officers participated in the negotiation of, not
only collective-bargaining agreements but also,
subsequent supplements and amendments. The
current contract between the Respondents was
signed by Parker. Finally, although the situation
necessarily has not arisen because all officers are
currently stewards, in the event that ceases to be the
case, stewards and officers, pursuant to local bylaws,
are the exclusive attendees at regular and monthly
"stewards meetings." The inference to be drawn from
that is, we think, clear-that officers provide guid-
ance and, at times, instruction to the stewards as the
latter attempt to fulfill their responsibilities. There is,
then, no affirmative showing that the functions of
officers, even without regard to their simultaneous
duties as stewards, do not relate in general to
furthering the bargaining relationship.
For all the above reasons, we conclude no
violations of the statute have been established and
we shall, accordingly, dismiss the consolidated
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the consolidated
complaint herein be, and it hereby is, dismissed in its
entirety.
CHAIRMAN FANNING, concurring:
I concur in my colleagues' disposition, for the
reasons set forth in my dissent in Dairylea Coopera-
tive, Inc., 219 NLRB 656 (1975), and in my
concurring position as set forth in United Electrical,
Radio & Machine Workers of America, Local 623
(Limpco Mfg., Inc.), 230 NLRB 406, fn. 5 (1977).
job or same category of job during incumbency in such position, for union
stewards and officers whose functions relate in general to furthering the
bargaining relationship.
940