Ford Motor Co.

National Labor Relations Board - Board Decisions

Mar 19, 1984

269 N.L.R.B. 250 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ford Motor Company and Joseph Bellino
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW) and its Local 36 and Joseph Bellino.
Cases 7-CA-17633 and 7-CB-4745
19 March 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 27 January 1981 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and Respondent Unions filed cross-exceptions
and a supporting brief. 1
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, cross-exceptions,
and briefs, and has decided to affirm the judge's
rulings, findings, and conclusions only to the extent
consistent with this Decision and Order.
The complaint alleges that Respondent Unions
(Respondent International and Respondent Local)
violated Section 8(b)(l)(A) and (2) of the Act, and
that Respondent Employer violated Section 8(a)(3)
and (1) of the Act, by maintaining and giving effect
to a provision in their collective-bargaining agree-
ment which grants "preferential seniority," or su-
perseniority, for purposes of layoff and subsequent
recall to, inter alia, Respondent Local's financial
secretary and treasurer. The judge found that these
named officers played a vital role in the "represen-
tational interests" of and "existence of services
available to" employees because of their shared
"immediate" responsibility for the financial exist-
ence of Respondent Local. He therefore recom-
mended dismissing the complaint, relying on, inter
I By letter dated 4 November 1983 Respondent Unions brought to the
Board's attention the court opinion in Benson v. General Motors Corp., 716
F.2d 862 (I 1th Cir. 1983), which they asserted held that Sec. 10(b) begins
to run when the challenged seniority status of an employee is first grant-
ed, and that later manifestations of such seniority do not give rise to a
new 10(b) period. Respondent Unions assert that Sec. 10(b) bars the pros-
ecution of the instant case, and that they have been raising 10(b) issues as
a matter of course in superseniority cases.
A review of the pleadings, the record evidence, the judge's decision,
and Respondent Union's cross-exceptions and brief in support does not
reveal that Sec. 10(b) was raised as a defense, or that it has been previ-
ously considered in this case. Accordingly, Respondent Unions are not
entitled to raise this issue now. See, e.g., McKesson Drug Co., 257 NLRB
468 fn. 1 (1981). In addition, we find Respondent Unions' contentions are
without merit. See also Auto Workers (Scovill, Inc.), 266 NLRB 952, 953
(1983).
269 NLRB No. 16
alia, Limpco Mfg.,2 American Can Co.,3 Allen Test-
products,4 and Otis Elevator Co.5 For the reasons
that follow, we do not agree with the dismissal and
find instead that the Respondent violated the Act
as described below.
As more fully set forth by the judge, the facts
show that the collective-bargaining agreement be-
tween the Respondents contains a provision which
grants seniority for purposes of layoff and recall to
union officers in specified offices.6 In essence, the
superseniority provision involved here allows union
officers, including, inter alia, Respondent Local's
financial secretary and treasurer, preferential se-
niority in the case of layoff and recall, notwith-
standing the seniority list at the plant at which they
work. Under this superseniority provision, Re-
spondent Local's treasurer George Morgan and its
financial secretary Donald Mills, both of whom
were afternoon-shift inspectors, were able to main-
tain their respective positions during a massive
layoff at Respondent Employer's Wixom, Michigan
facility in March and April 1980. It is undisputed
that without the operation of the superseniority
provision Mills would have been laid off and
Morgan would have been reduced or bumped to a
production job. It is clear that employees more
senior than Mills and Morgan were downgraded
solely because of the superseniority provision.
As heretofore noted, the judge found that both
financial secretary and the treasurer performed nu-
merous duties which entitled them to exercise su-
perseniority rights. 7 While recognizing that neither
2 Electrical Workers UE Local 623 (Limpco Mfg.), 230 NLRB 406
(1977), enfd. sub nom. D'Amico v. NLRB, 582 F.2d 820 (3d Cir. 1978).
3 235 NLRB 704 (1978). But compare American Can Co., 244 NLRB
736 (1979).
4 Industrial Workers AIW (Allen Testproducts), 236 NLRB 1368 (1978).
6 231 NLRB 1128 (1977).
0 The relevant provision of the collective-bargaining agreement reads
as follows:
Layoff & Recall of Union Officers
Notwithstanding their positions on the seniority list, all local build-
ing or unit officers (that is, the President, Vice-President, Recording
Secretary, Financial Secretary, Treasurer, Sergeant-at-Arms, Guide
and three (3) Trustees) shall have preferential seniority in their re-
spective units in case of layoff and subsequent recall ...
The judge found, and the record indicates, that the financial secre-
tary had the following duties and responsibilities, among others: mainte-
nance of all financial and membership records; filing of all governmental
reports; maintenance of Respondent Local's property and equipment; col-
lection of members' arrearages; approving and processing vouchers for
disbursements, including strike benefits; receipt of dues, initiation and
other fees, fines, and other income; and administration of dues checkoff.
The treasurer had the following duties and responsibilities: depositing
income into Respondent Local's account; verifying expense vouchers;
and signing checks to cover these vouchers. Together, the financial sec-
retary and treasurer prepared and delivered monthly and yearly financial
reports to the membership. They also participated in audits. Pursuant to
Respondent Local's practices, both officers, together with three other
elected officials, comprised the "top five," who met to discuss policy, in-
cluding grievances and fair representation matters. Both Mills and
Morgan performed other functions on a voluntary basis, such as answer-
ing questions about the contract.
250
FORD MOTOR CO.
the treasurer nor the financial secretary had a
direct role in the processing of grievances, the
judge concluded that the "financial well being" of
Respondent Unions was intimately bound up with
the quality and existence of services available to
union members, including such services as taking
grievances to arbitration, providing expert assist-
ance in collective-bargaining responsibilities, and
protecting other vital interests. Thus, the judge de-
termined that the superseniority provision here was
a legitimate exercise of union concern which did
not unlawfully discriminate in favor of unionism.
As indicated, we reverse that conclusion.
The Board has recently reconsidered the issue of
superseniority as construed by Limpco Mfg., above,
and related cases, and has decided to overrule
those cases. In Gulton Electro-Voice,8 the Board
concluded that "superseniority accorded to officers
who do not perform steward or other on-the-job
contract administration functions is not permissible
because it unjustifiably discriminates against em-
ployees for union-related reasons."9 The Board em-
phasized that it was not "in the business of assuring
that a union has an efficient and effective organiza-
tion to conduct collective bargaining" where such
assurances discriminated impermissibly against indi-
vidual employee rights."° In sum, the Board held
in Gulton:
We will find unlawful those grants of super-
seniority extending beyond those employees
responsible for grievance processing and on-
the-job contract administration. We will find
lawful only those superseniority provisions
limited to employees who, as agents of the
union, must be on the job to accomplish their
duties directly related to administering the col-
lective-bargaining agreement. 1
In the instant case, the judge extensively ana-
lyzed the duties of the treasurer and financial secre-
tary and correctly concluded that none of those
duties required a direct role in grievance process-
ing. We agree. We also agree with the General
Counsel that these two union officials do not figure
in the daily representational scheme at Respondent
Employer's facility so as to accord legality to their
superseniority. 2
s 266 NLRB 406 (1983). Accord: Auto Workers (Scovill, Inc.), 266
NLRB 952.
g 266 NLRB at 406.
10 Id. (quoting from dissent in Limpco, 230 NLRB at 409).
' t Ibid.
"2 In Gulton, the Board specifically found that the duties of a record-
ing secretary and financial secretary-treasurer, which included, inter alia,
administering dues withholding plans, depositing income, and other finan-
cial responsibilities, did not involve on-the-job activities. The duties per-
formed by the treasurer and financial secretary here likewise, we con-
clude, do not involve on-the-job activities.
Accordingly, we find that, by maintaining and
enforcing the superseniority provision with respect
to the treasurer and the financial secretary, Re-
spondent Local and Respondent International have
violated Section 8(b)(1)(A) and (2) of the Act, and
Respondent Employer has violated Section 8(a)(3)
and (1) of the Act. Furthermore, by according
George Morgan and Donald Mills superseniority
under the unlawful provision to the detriment of
other unit employees, Respondent Local and Re-
spondent International further violated Section
8(b)(1)(A) and (2), and Respondent Employer fur-
ther violated Section 8(a)(3) and (1).
THE REMEDY
Having found that the Respondents have en-
gaged in certain unfair labor practices, we shall
order that they cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
We have found that the superseniority provision
here in dispute is unlawful and we shall therefore
order that Respondent Local and Respondent
International cease and desist from maintaining and
enforcing such provision in the bargaining agree-
ment with Respondent Employer. We shall also
order that Respondent Employer cease and desist
from maintaining and enforcing such provision in
its bargaining agreement with Respondent Unions.
To remedy the discriminatory application of the
unlawful provision we shall order that Respondent
Employer offer to reinstate any employees who
would not have been laid off or downgraded but
for the unlawful assignment of superseniority to the
treasurer and financial secretary, and that the Re-
spondents jointly and severally make affected unit
employees whole for any loss of earnings they may
have sustained as a result of the discrimination
against them. We shall also order that the Re-
spondents expunge from their files any reference to
the unlawful discrimination herein, and shall notify
the affected employees that this has been done and
that the unlawful discrimination will not be used as
a basis for future personnel actions against them.1 3
Backpay shall be computed in the manner estab-
lished by the Board in F. W. Woolworth Ca, 90
NLRB 289 (1950), with interest as provided in
Florida Steel Corp., 231 NLRB 651 (1977). See gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962).
Also, in order to remedy in full the effects of the
Respondents' unlawful conduct, Respondent Em-
ployer's backpay obligation shall run from the ef-
1' See Sterling Sugars, 261 NLRB 472 (1982); Boilermakers Local 27
(Daniel Construction), 266 NLRB 602 (1983); R. H. Macy & Ca., 266
NLRB 858 (1983).
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fective date of the discrimination against affected
unit employees to the time it makes such recall
offers, while Respondent Unions' obligations shall
run from such effective date to 5 days after the
date of their notification to Respondent Employer
that they have no objection to the recall or upgrad-
ing of unit employees affected by the unlawful
grant of superseniority to union officers. Finally,
we shall order that Respondent Employer cease
and desist in any like or related manner from inter-
fering with, restraining, or coercing its employees
in the exercise of rights guaranteed by Section 7 of
the Act, and that Respondent Local and Respond-
ent International likewise cease and desist from re-
straining or coercing employees they represent in
the exercise of those same rights.
CONCLUSIONS OF LAW
1. Ford Motor Company is an employer engaged
in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW) and its Local 36 are labor organi-
zations within the meaning of Section 2(5) of the
Act.
3. By maintaining and enforcing a seniority
clause in their collective-bargaining agreement ac-
cording Respondent Local's treasurer and financial
secretary superseniority, Respondent Employer and
Respondent Unions have engaged in, and are en-
gaging in, unfair labor practices within the meaning
of Section 8(a)(3) and (1) and Section 8(b)(1XA)
and (2) of the Act, respectively.
4. By according George Morgan and Donald
Mills superseniority to the detriment of other unit
employees under the seniority provision found un-
lawful herein, Respondent Employer has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act,
and Respondent Local and Respondent Internation-
al have engaged in, and are engaging in, unfair
labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that
A. Respondent Employer, Ford Motor Compa-
ny, Wixom, Michigan, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing collective-bargain-
ing provisions with Respondent Unions, Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW) and its Local 36, according Respondent
Local's treasurer and financial secretary supersen-
iority.
(b) Discriminating against any employees by re-
taining or recalling Respondent Local's treasurer
or financial secretary instead of other employees
when such other employees have greater seniority
in terms of length of employment than has one of
the aforementioned union officials.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights protected by Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Jointly and severally with Respondent Unions
make any unit employees whole for any loss of
earnings they may have suffered by reason of the
discrimination against them, such lost earnings to
be determined in the manner set forth in the sec-
tion of this Decision entitled "The Remedy," and
offer to reinstate or recall any employees who
would not have been laid off or would have been
recalled but for the unlawful assignment of super-
seniority to Respondent Local's treasurer or finan-
cial secretary.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Expunge from its files any reference to the
discrimination against employees affected by the
superseniority as applied to Respondent Local's
treasurer and financial secretary, and notify them in
writing that this has been done and that evidence
of the unlawful discrimination will not be used as a
basis for future personnel actions against them.
(d) Post at its establishment in Wixom, Michigan,
copies of the attached notice marked "Appendix
A."14 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being
signed by Respondent Employer's authorized rep-
resentative, shall be posted by Respondent Em-
ployer immediately upon receipt and maintained
for 60 consecutive days in conspicuous places in-
" 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
252
FORD MOTOR CO.
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent Employer to ensure that the notices
are not altered, defaced, or covered by any other
material.
(e) Post at the same places and under the same
conditions as set forth in paragraph A,2,(d), above,
as soon as forwarded by the Regional Director,
copies of the attached notice marked "Appendix
B."
(f) Mail signed copies of the attached notice
marked "Appendix A" to the Regional Director
for posting by Respondent Unions.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Employer has taken to comply.
B. Respondent Unions, International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW) and its
Local 36, their officers, agents, and representatives,
shall
1. Cease and desist from
(a) Maintaining and enforcing these provisions in
its collective-bargaining agreement with Respond-
ent Employer, Ford Motor Company, according
Respondent Local's treasurer and financial secre-
tary superseniority with respect to layoff and recall
or for any other purposes.
(b) Causing or attempting to cause Respondent
Employer to discriminate against employees in vio-
lation of Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or
coercing the employees of Respondent Employer
in the exercise of their rights protected by Section
7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Jointly and severally with Respondent Em-
ployer make any unit employees whole for any loss
of earnings they may have suffered by reason of
the discrimination against them, such lost earnings
to be determined in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Notify Respondent Employer in writing that
they have no objection to reinstating the affected
unit employees who but for the unlawful assign-
ment of superseniority would not have been laid
off or reassigned.
(e) Expunge from their files any reference to the
discrimination against employees affected by the
superseniority as applied to Respondent Local's
treasurer and financial secretary, and notify them in
writing that this has been done and that evidence
of the unlawful discrimination will not be used as a
basis for future actions against them.
(d) Post at their offices and meeting halls used
by or frequented by their members and employees
it represents at Respondent Employer's Wixom,
Michigan facility copies of the attached notice
marked "Appendix B."15 Copies of the notice, on
forms provided by the Regional Director for
Region 7, after being signed by Respondent
Unions' authorized representative, shall be posted
by the Respondent Unions immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to the above-described members and employ-
ees are customarily posted. Reasonable steps shall
be taken by the Respondent Unions to ensure that
the notices are not altered, defaced, or covered by
any other material.
(e) Post at the same places and under the same
conditions as set forth in paragraph B,2,(d), above,
as soon as forwarded by the Regional Director,
copies of the attached notice marked "Appendix
A."
(f) Mail signed copies of the attached notice
marked "Appendix B" to the Regional Director for
posting by Respondent Employer.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Unions have taken to comply.
IS See fn. 14, above.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain and enforce any clause
in our collective-bargaining agreement with Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW) and its Local 36 according Local's treasur-
er and financial secretary superseniority with re-
spect to layoff and recall or other considerations.
WE WILL NOT discriminate against any employ-
ees by failing to retain or recall them instead of the
Local's treasurer or financial secretary when such
union officials do not in fact have greater seniority
in terms of length of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights protected by Section 7 of
the Act.
WE WILL offer to those who were discriminator-
ily laid off instead of the Local's treasurer or finan-
cial secretary immediate and full reinstatement to
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their former jobs or, if those jobs no longer exist,
to sustantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL expunge from our files any reference
to the discrimination against employees affected by
the superseniority as applied to the Local's treasur-
er and financial secretary and WE WILL notify them
in writing that this has been done and that evi-
dence of the discrimination will not be used as a
basis for future personnel actions against them.
WE WILL jointly and severally with the Unions
make any unit employees whole for any loss of
earnings they may have suffered as a result of the
discrimination against them, with interest.
FORD MOTOR COMPANY
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain and enforce any clause
in our collective-bargaining agreement with Ford
Motor Company according Local's treasurer and
financial secretary superseniority with respect to
layoff and recall and other considerations.
WE WILL NOT cause or attempt to cause Ford
Motor Company to discriminate against any em-
ployees by requiring that the collective-bargaining
agreement be enforced so as to not retain them or
recall them instead of the Local's treasurer or fi-
nancial secretary when the Local's treasurer or fi-
nancial secretary does not in fact have greater se-
niority in terms of length of employment.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of their
rights protected by Section 7 of the Act.
WE WILL notify Ford Motor Company that we
have no objection to reinstating the affected unit
employees who but for the unlawful assignment of
superseniority would not have been laid off or reas-
signed.
WE WILL expunge from our files any reference
to the discrimination against employees affected by
the superseniority as applied to the Local's treasur-
er and financial secretary, and WE WILL notify
them in writing that this has been done and that
evidence of the discrimination will not be used as a
basis for future personnel actions against them.
WE WILL jointly and severally with Ford Motor
Company make any unit employees whole for any
loss of earnings they may have suffered as a result
of the discrimination against them, with interest.
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA (UAW) AND ITS
LOCAL 36
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Detroit, Michigan, on
December 1, 1980, on unfair labor practice charges filed
on April 9, 1980, and a consolidated complaint issued on
May 29, 1980, alleging that Respondent Unions violated
Section 8(b)(1)(A) and (2) of the Act and Respondent
Employer violated Section 8(a)(3) and (1) of the Act by
maintaining and giving effect to a provision of their col-
lective-bargaining agreement which insofar as material
afforded "preferential seniority . . . in case of a layoff
and subsequent recall" to the Local Union's financial sec-
retary and treasurer. In its duly filed answer, Respond-
ents denied that any unfair labor practices were commit-
ted. Following close of the hearing, briefs were filed on
behalf of the General Counsel and jointly on behalf of
the Respondent International Union and Respondent
Local 36.
On the entire record in this proceeding, having had
the opportunity to observe directly the witnesses while
testifying and their demeanor, and on consideration of
the posthearing briefs, I make the following
FINDINGS OF FACT
I. IURISDICTION
Respondent is a Delaware corporation, with a princi-
pal office and place of business in the city of Dearborn,
Michigan, and a plant located in Wixom, Michigan, the
sole facility involved in this proceeding, from which it is
engaged in the manufacture, sale, and distribution of
automobiles, trucks, automotive parts, and related prod-
ucts. During the calendar year 1979, a representative
period, Respondent in the course of said operations pur-
chased and caused to be transported and delivered to its
Michigan plants goods and materials valued in excess of
$500,000, of which goods and materials valued in excess
of $50,000 were transported and delivered to its plant in
Wixom, Michigan, directly from points located outside
the State of Michigan.
The complaint alleges, the Respondents at the hearing
stipulated, and I find that Respondent Employer is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondents admit, and I find
that International Union, United Automobile, Aerospace
254
FORD MOTOR CO.
and Agricultural Implement Workers of America
(UAW) and its Local 36 are and have been at all times
material herein labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint in this proceeding challenges a provi-
sion which has appeared in successive collective-bargain-
ing agreements between Respondents since 1941 as un-
lawfully impeding individual employee rights guaranteed
by Section 7 of the Act. Said allegations of discrimina-
tion are founded upon Dairylea Cooperative, 219 NLRB
656 (1975), enfd. 531 F.2d 1162 (7th Cir. 1976), where a
Board majority (Chairman Murphy, Members Jenkins,
Kennedy, and Penello, with Member Fanning dissenting)
for the first time intervened with respect to collectively
negotiated terms which bestowed special employment
benefits on union officials. In that case the Board deemed
unlawful a contractual provision which afforded union
stewards superseniority which not only protected against
layoff and recall, but was operable as to other employ-
ment advantages, such as overtime bidding, route selec-
tion, vacation selection, and shift preference. The Board,
in finding that such an arrangement was presumptively
unlawful, alluded to the statutory policy requiring insula-
tion of employees' job benefits from their organizational
activity,' and concluded that "in view of the inherent
tendency of superseniority clauses to discriminate against
employees for union-related reasons, and thereby to re-
strain and coerce employees with respect to the exercise
of their rights protected by Section 7 of the Act, we do
find that superseniority clauses which are not on their
face limited to layoff and recall are presumptively unlaw-
ful, and that the burden of rebutting that presumption
(i.e., establishing justification) rests on the shoulders of
the party asserting their legality." 2 In said holding, how-
ever, the Board conceded as follows: ". . . we are aware
that it is well established that steward superseniority lim-
ited to layoff and recall is proper even though it, too,
can be described as typing to some extent an on-the-job
benefit to union status." s
While the instant case does not involve union stew-
ards, it does involve key elected officials of the Local
union; namely, the financial secretary and treasurer, who,
by virtue of contractual superseniority during a major
layoff, were excluded therefrom and permitted to retain
their classifications, to the detriment of other workers
with greater continuous service. The General Counsel's
challenge to this application of the contract rests primari-
ly on the fact that formal duties of the treasurer and fi-
nancial secretary did not entail steward-like functions or
direct responsibility with respect to the grievance ma-
chinery. The General Counsel argues further that the
performance of their official union functions did not re-
quire continued presence on the job in their prelayoff
classifications, and hence the grant of superseniority
served no statutory interest and was inherently discrimi-
I See, e.g.. Radio Officers v. NLRB, 347 U.S. 17 (1954); Scofield v.
NLRB, 394 U.S. 423, 429 fn. 5.
2 219 NLRB at 658.
3 Ibid.
natory under the Act as an employment-based reward
for union activity.
By way of background it is noted that the above claim
arises in a plant which, prior to the layoff in April 1980,
was manned by a production and maintenance unit con-
sisting of in excess of 5000 employees. The bargaining re-
lationship between Respondents was one of long stand-
ing dating back some 40 years, with the Wixom plant
being a mere segment of industrywide bargaining which
defined the terms of employment for some 120,000 to
180,000 Ford employees. On the union side, the terms
applicable are administered by various local unions joint-
ly with the International Union and are memorialized in
a master working agreements which covers the nation-
wide bargaining unit as well as local agreements, includ-
ing that governing the Wixom plant.5
The provision under interdict by the instant complaint
first appeared in agreements between the parties in 1941,
and since that date has reappeared in negotiated con-
tracts, which were ratified by the membership, with revi-
sions of a minor and nonmaterial nature. Since its source
lies in the national agreement, superseniority for union
officials is part of an industrial scheme affecting some
120,000 employees. The clause in article VIII under scru-
tiny provides in material part as follows:
Section 19-Layoff and Recall of Union Officers
Nothwithstanding their positions on the seniority
list, all local building or unit officers (that is, the
President, Vice-President, Recording Secretary, Fi-
nancial Secretary, Treasurer, Sergeant-at-arms,
Guide and three (3) Trustees) shall have preferential
seniority in their respective Units in case of a layoff
and subsequent recall, provided that there is work
available which they can perform. .. ..
The foregoing clause was implemented between
March and April 1980, when a massive layoff at the
Wixom plant cut back some 2800 jobs. At the time,
George Morgan, the treasurer of Local 36, and Donald
Mills, the financial secretary of Local 36, were afternoon
shift inspectors. By virtue of article VIII, section 19,
Morgan and Mills were able to maintain their positions
as "inspectors" on the afternoon shift. Had they not exer-
cised superseniority, Mills would have been laid off,
while Morgan would have been reduced or bumped to a
production job, and Respondents concede that more
senior employees were downgraded solely by virtue of
this exercise of superseniority.
In Dairylea, supra, the Board acknowledged that su-
perseniority limited to layoff and recall may lawfully be
extended to those holding the position of shop steward
on "the ground that it furthers the effective administra-
tion of bargaining agreements on the plant level by en-
couraging the continued presence of the steward on the
job." 7 Here, the General Counsel contends that the treat-
4 See Jt. Exh. 1.
s See Rt. Exh. 3.
See Jt. Exh. 1.
' 219 NLRB at 658.
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment accorded Mills and Morgan was excessive as their
duties did not formally relate to the processing of griev-
ances or contract administration in degree sufficient to
"resemble representational functions as contemplated by
the Board in Dairylea . . . or its progeny," and, further,
that the protection conferred in this instance extended
beyond layoff and recall by insulating Mills and Morgan
from bumping by other more senior employees. In this
latter respect, the General Counsel argues that the spirit
of Board law bars protection against bumping except in
the case of stewards or those directly engaged in the rep-
resentation process or, at a minimum, where the per-
formance of such representational functions would be im-
peded by downgrading.
Weighing against these arguments is the fact that,
since Dairylea, a divided Board has broadened the area in
which superseniority could be extended lawfully to
union officials who were neither stewards nor engaged
directly in the processing of grievances. Thus, in Electri-
cal Workers UE Local 623 (Limpco Mfg.), 230 NLRB 406
(1977),8 a Board majority (Chairman Fanning, Members
Murphy and Walther, with Members Jenkins and Penello
dissenting) dismissed allegations of discrimination where
the "recording secretary" of an amalgamated local repre-
senting some 230 to 250 members avoided layoff solely
through application of a superseniority clause in a collec-
tive-bargaining agreement. This, despite the fact that the
recording secretary had no formal responsibility in con-
nection with the grievance process and did not perform
steward-type functions. In so holding, the majority stated
as follows:
In this regard, we do not consider that the ad-
ministration of the collective-bargaining agreement
is limited solely to grievance processing or other
"steward-type" duties performed at the workplace.
What is at stake is the effective and efficient repre-
sentation of employees by their collective-bargain-
ing representatives. Certainly, the representational
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 presi-
dent, is usually not involved in grievance proceed-
ings. We shall not therefore presume . . . that union
officers, even though they may not perform stew-
ard-type duties, are not as involved as stewards in
the administration of the collective-bargaining
agreement. On the contrary, we believe that, once it
has been initially demonstrated that the official re-
sponsibilities of the union officer in question bear a
direct relationship to the effective and efficient rep-
resentation of union employees, then this officer is
s Aff. sub nom. D'Amico v. NLRB, 582 F.2d 820 (3d Cir. 1978).
entitled to the benefit of the same presumption af-
forded to union stewards. 9
Subsequently, the General Counsel's burden as defined
in Limpco, supra, was broadened measurably. Thus, in
American Can Co., 235 NLRB 704 (1978), a panel major-
ity (Chairman Fanning and Member Truesdale, with
Member Penello dissenting) upheld the implementation
of contractual provisions conferring superseniority and
protecting against layoff, inter alia (I) a "guard" whose
duties were "to take charge of the door and see that no
one enters who was not entitled to do so," and (2) trust-
ees whose duties were "to have charge of the hall and all
property of the local union . . . and perform such other
duties as the local union may require." The panel majori-
ty in rejecting the contention that the grant of supersen-
iority to the guard and trustees was overly broad, and
hence beyond the limited exception permitted under the
Act, actually intensified the presumption of legitimacy in
the following terms:
A documentary description of officers' duties
showing no visible or direct impact by them on
contract administration is insufficient evidence to
overcome the presumption and to establish a viola-
tion of the Act. The Board will not, on the basis of
such evidence, second-guess a union's decision as to
what officers aid the union in effectively represent-
ing the unit. Thus, the parties to a collective-bar-
gaining agreement do not have to justify applica-
tions of superseniority to union officers, but, in
order to establish a violation, the General Counsel
must prove that a particular application is invalid.
[235 NLRB at 704-705.1
In the instant case there can be little debate that repre-
sentational interests turn vitally on the role played by the
Local's financial secretary and treasurer. 10 Together
they share immediate responsibility for fiscal existence of
the Local, which is nonamalgamated in nature and serves
some 5000 members employed by, or on furlough from,
the Wixom plant. Mills and Morgan were elected by
secret ballot to 3-year terms and their respective offices
required membership on the Local's executive board. As
for their duties, the financial secretary maintains all fi-
nancial records, membership records, " and, together
with the treasurer, prepares and delivers monthly and
yearly financial reports to the membership. The financial
secretary filed all governmental reports, whether finan-
cially related or not, maintains the Local's property and
equipment, and sees to the collection or arrearages owed
0 230 NLRB at 407-408.
10 Under the UAW constitution, these duties may be combined into a
single office. Testimony indicates that, within the Employer's operation,
approximately half of the locals combine the positions into a single office,
with the difference based on size, and the larger locals tending to split
the functions between the separate offices involved here.
" Maintenance of the membership records requires daily updating as
to internal status changes such as suspensions, expulsion, transfer, and re-
instatement. This is within responsibility of the financial secretary whose
duties also include notification of the International of any such changes.
In addition, the financial secretary must update membership rolls to re-
flect death, layoff, discharge, retirement, or any other such personal
action affecting a member's payroll status.
256
FORD MOTOR CO.
by members. The latter is also responsible for approving
and processing vouchers for all disbursements ranging
from routine expenditures to strike benefits. The duties of
the financial secretary include receipt of all dues, initi-
ation fees, readmission fees, fines, and all other income of
the Local Union, as well as administration of contractual
checkoff arrangements, including responsibility for assur-
ing that members have executed timely checkoff authori-
zation necessary to facilitate the Employer's remittal of
dues to the Union. The treasurer is responsible for depos-
iting income into the Local's account, verifying all ex-
pense vouchers, and signing all checks issued to cover
the latter.12 He also assists the financial secretary in the
preparation of financial reports and verifies those made
to the membership on a monthly and annual basis. The
treasurer, also together with the financial secretary, par-
ticipates in audits conducted by the International Union
every 2 to 3 years.
Pursuant to the Local 36 practice, the top elected offi-
cials are referred to as "the top five." This group meets
from time to time to discuss various policy concerns, in-
cluding grievances and whether union representatives
have extended fair treatment to particular employees.' 3
The "top five" includes the treasurer and the financial
secretary.
Nonetheless, it is a fact that the latter play no direct
role in the administration of the grievance procedure
and, as observed by the General Counsel, their involve-
ment in deliberations respecting grievances may well be
limited to the sporadic and occasional. Nonetheless, it is
fair to state that the financial well-being of the Union
bears on the quality and, perhaps, the existence of serv-
ices available to the membership. Indeed, apart from the
general institutional services affordable through the rep-
resentative, budgetary considerations may well determine
whether particular grievances will be processed to arbi-
tration, whether expert assistance will be secured in con-
nection with the overall collective-bargaining responsibil-
ity, and whether programs will be available to educate
and otherwise vindicate membership interests. The treas-
urer and the financial secretary are the custodians of the
Local's financial integrity and assessment of the import
thereof ought not discount the fact that Local 36 has a
membership base consisting of thousands of employees.
The conclusion that their status within the Local was
sufficient to support protection through superseniority is
supported persuasively by American Can, supra, where a
panel majority took a "hands off" approach with respect
to internal union judgment as to less stratified union offi-
cials. However, the cause of financial officers was specif-
ically addressed in Industrial Workers AIW (Allen Test-
products), 236 NLRB 1368 (1978). There, a panel majori-
ty (Chairman Fanning, Members Murphy and Truesdale,
with Members Jenkins and Penello dissenting) held that a
"financial secretary," whose fiscally related duties were
12 Checks are countersigned by the Local's president.
Is Both Mills and Morgan performed functions apparently on a volun-
tary basis which were not ancillary to their official positions as treasurer
and financial secretary. As superseniority exists solely on the basis of
their service in the elected positions, other duties-assumed as a matter of
personal choice, special skills, or combination of the two-have been
considered irrelevant to the inquiry.
indistinct from those of Mills in this proceeding and in-
cluded those of Morgan, performed official functions
within that class of union officials as to whom supersen-
iority could be conferred to the detriment of more senior
employees.
Although, based on the foregoing, I find that supersen-
iority provision was lawfully applied to protect Mills and
Morgan from layoff, the General Counsel further con-
tends that a violation nonetheless inures because Re-
spondents went further by permitting Mills and Morgan
to be retained in their extant classification, thereby insu-
lating them from downward and lateral bumping by
more senior employees. While the General Counsel con-
cedes that the precedent supports this latter form of ex-
tended protection, she claims that it has been conferred
only and applies solely to those who were stewards or
performed steward-like duties.14 Thus she contends that
no statutory interests is furthered by deeming union offi-
cers, who do not perform such duties, to benefit legiti-
mately from superseniority to insulate them from bump-
ing. In other words, it is claimed by the General Counsel
that a superseniority clause affording protection against
bumping, though lawful as to those directly involved in
the grievance procedure, loses validity when extended to
other union officers including the financial secretary and
the treasurer, irrespective of the latter's contribution to
the "effective and efficient representation of union em-
ployees."15 Serious doubt exists as to whether precedent
permits this narrow view. The majority in Limpco dis-
credited any such distinction with respect to "Layoffs,"
and there is no indication in the ensuing precedent that
its vitality reemerges where "classification retention"
through superseniority is in issue.' 6 Indeed, in Otis Ele-
vator Co., 231 NLRB 1128, a panel majority (Chairman
Fanning, Members Murphy and Walther, with Members
Jenkins and Penello dissenting) dismissed allegations of
discrimination based on the exercise of contractual super-
seniority to permit union officers to retain their same
classification as against lateral bumping by others with
greater seniority. In that case, the General Counsel, as
here, argued that the superseniority clauses were unlaw-
ful because not limited to layoff and recall. Although the
of ficers involved were not directly engaged in the
grievance procedure, as a result of the layoff, the union
itself eliminated the steward positions and the five offi-
cers, following the layoff, assumed those functions. How-
ever, notwithstanding the internal decision, it remained
as fact that, prior to the layoff, the beneficiaries of super-
seniority in that case were officers who were not directly
involved in the grievance procedure.
In any event, the General Counsel contends that, be-
cause assurance against bumping was unnecessary to the
fulfillment of official responsibility held by Mills and
14 See, e.g., Hospital Service Plan of New Jersey, 227 NLRB 585 (1976);
Union Carbide Corp., 228 NLRB 1152 (1977); and Stage Employees IATSE
Local 780 (McGregor-Werner), 227 NLRB 558 (1976).
"' Electrical Workers UE Local 623 (Limpco Mfg. Co), supra at 407 fn.
8
IF In the view I take of the case, I need not pass on the contention by
Respondent Unions that, absent protection against bumping to the treas-
urer and the financial secretary, their ability to continue to furnish the
same quality of service to the Local would be disminished.
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morgan, the strong statutory policy seeking to preserve
neutrality and to insulate union activity from employ-
ment conditions requires that exceptions be strictly con-
strued "to facilitate contract administration, not to
strengthen or justify union bureaucracy." However, the
financial secretary and the treasurer were elected by
secret ballot by the entire Local membership in the face
of a subsisting bargaining contract and an outstanding ar-
bitration award protecting them against bumping. This
benefit by its nature is defensive, furnishing no advantage
with respect to promotion nor opportunity for increased
earnings. At the same time, uncontradicated testimony
establishes that this encroachment on the overall seniori-
ty system was negotiated initially to remove any tempta-
tion on the part of managers to disrupt union affairs
through manipulation and reprisal against union officials
under the guise of economic justification.' 7 Protection
against bumping is perfectly compatible with the Union's
legitimate concern for self-preservation, an objective
which serves the membership as a whole. And while it
might be said that the quality of the bargaining history at
Ford reduces any such threat to the nonexistent, article
VIII, section 19 of the national agreement affords assur-
ance that such is, and shall continue to be, the case.
This statute is often brought to bear on disputes which
turn on an accommodation of competing interests. Here,
the statutory policy encouraging stability of existing col-
lective-bargaining relationships must be weighed against
" See credited testimony of Dan Forchione, administrative assistant to
the International vice president, Don Efland, director of the UAW Na-
tional Ford Department.
the impact of negotiated terms on employee rights."' In
my opinion, the insulation of high-level elected officials
from bumping triggered by management determinations
is neither excessive nor sufficiently beyond the area of le-
gitimate union concern to form a predicate for exalting
Section 7 of the Act with overarching weight. Accord-
ingly, the allegations that Respondent Unions violated
Section 8(b)(l)(A) and (2) and that Respondent Employ-
er violated Section 8(a)(3) and (1) by the treatment ac-
corded Financial Secretary Mills and Treasurer Morgan
shall be dismissed.
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent International and Respondent Local 36
are labor organizations within the meaning of Section
2(5) of the Act.
3. Respondent Employer did not violate Section
8(a)(3) and (1) of the Act and Respondent Unions did
not violate Section 8(b)(1)(A) and (2) of the Act by
maintaining and implementing a provision in their collec-
tive-bargaining agreement by which superseniority was
conferred on Local 35's financial secretary and treasurer
in a manner which prevented layoff and permitted reten-
tion in their classifications to the detriment of more
senior employees.
[Recommended Order for dismissal omitted from pub-
lication.]
18 Steel v. Louisville & Railroad Co., 323 U.S. 192, 203 (1944); Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
258