International Harvester Co.

National Labor Relations Board - Board Decisions

Jun 25, 1984

270 N.L.R.B. 1342 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Harvester Company and David Van-
dermeer and Robert Ballard
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica and its Local Union No. 1145 and David
Vandermeer and Robert Ballard. Cases 33-CA-
6119, 33-CA-6158, 33-CB-1828, and 33-CB-
1845
25 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 25 November 1983 Administrative Law
Judge Sidney J. Barban issued the attached deci-
sion. The Respondent Union and the General
Counsel filed exceptions and supporting briefs. The
General Counsel filed an answering brief in opposi-
tion to the Respondent Union's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order as modified.
We agree with the judge's finding that the Re-
spondent Employer violated Section 8(a)(1) and (3)
and that the Respondent Union violated Section
8(b)(1)(A) and (2) of the Act by enforcing a provi-
sion of their collective-bargaining agreement which
accords preferred seniority status for layoff pur-
poses to certain union officers who do not perform
steward-like functions in their official capacities as
recording secretary, financial secretary-treasurer,
trustee, and sergeant-at-arms. The judge also found
the Respondent Company only secondarily liable
for backpay because the Company did not stand to
benefit from the Union's policy of granting super-
seniority to union officials and because when the
Company became advised its policy regarding su-
perseniority did not conform with the Board's in-
terpretation of the law, it took prompt action to
comply. We find no support for this limitation in
the remedy here. The general rule is that an em-
ployer and union are jointly and severally liable for
backpay where both the employer and the union
have violated Section 8(a)(1) and (3) and Section
8(b)(1)(A) and (2) of the Act, respectively. In
Gulton Electro-Voice, 266 NLRB 406 (1983), enfd.
sub nom. Electrical Workers IUE Local 900 v.
NLRB, 727 F.2d 1184 (D.C. Cir. 1984), and its
Acme Mattress Co., 91 NLRB 1010 (1950), enfd. 192 F.2d 524 (7th
Cir. 1951).
270 NLRB No. 201
progeny the Board has adhered to that remedy 2
and we see no basis for deviating from that remedy
here. Accordingly, we substitute the following for
the seventh and eighth paragraphs in the remedy
section of the judge's decision, and we will modify
the recommended Order and substitute a new
notice.
Consequently the Respondent Union and the Re-
spondent Company shall be ordered jointly and
severally to make David Vandermeer, Robert Bal-
lard, James Simpson, Jack Cox, and Charles Chap-
man whole for any loss of earnings and benefits re-
sulting from their layoffs on 19 March 1982 and/or
1 July 1982, to the time of their reinstatement or
retirement, whichever the case may be, such back-
pay to be computed in the manner set forth in F.
W Woolworth Co., 90 NLRB 289 (1950), with in-
terest thereon to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent Company, International Harvester Com-
pany, Canton, Illinois, its officers, agents, succes-
sors, and assigns, and the Respondent Union, Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America and
its Local Union No. 1145, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph A,2(a).
"(a) Jointly and severally with the Respondent
Union make David Vandermeer, Robert Ballard,
James Simpson, Jack Cox, and Charles Chapman
whole for any loss of earnings and benefits they
may have suffered as a result of the discrimination
against them, in the manner set forth in the revised
remedy section of this Decision."
2. Substitute the following for paragraph B,2(a).
"(a) Jointly and severally with the Respondent
Company make David Vandermeer, Robert Bal-
lard, James Simpson, Jack Cox, and Charles Chap-
man whole for any loss of earnings and benefits
they may have suffered by reason of the discrimi-
nation against them, such lost earnings and benefits
I Ensign Electric, 268 NLRB 620 (1984); Niagara Machine a Tool
Works. 267 NLRB 661 (1983).
3 The standard remedy where a respondent company's backpay obliga-
tion runs from the date of discrimination to the time of recall while a
respondent union's obligation runs from the date of discrimination to 5
days after its notice to the company if it has no objection to the recall of
employees does not apply here because all of the discriminatees have
been reinstated previously or have retired.
1342
INTERNATIONAL HARVESTER CO.
to be determined in the manner set forth in the re-
vised remedy section of this Decision."
3. Substitute the attached notices for those of the
administrative law judge.
APPENDIX A
NOTICE To EMPLOYEES
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 ordered us to post and abide by this notice.
WE WILL NOT lay off or refuse to recall employ-
ees from layoff by granting superseniority to offi-
cials or agents of International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America and its Local Union No.
1145, unless such officials or agents are responsible
for on-the-job grievance processing or on-the-job
collective-bargaining contract administration.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL NOT jointly and severally with the
Union make David Vandermeer, Robert Ballard,
James Simpson, Jack Cox and Charles Chapman
whole for any loss of earnings and benefits they
may have suffered as a result of their layoffs on 19
March and/or 1 July 1982, as ordered by the Na-
tional Labor Relations Board.
INTERNATIONAL HARVESTER COMPANY
APPENDIX B
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause Interna-
tional Harvester Company to discriminate against
employees in violation of the National Labor Rela-
tions Act by granting superseniority for layoff and
recall from layoff to officials or agents of the
Union who are not responsible for on-the-job
grievance processing or on-the-job collective-bar-
gaining contract administration.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL NOT jointly and severally with the
Company make David Vandermeer, Robert Bal-
lard, James Simpson, Jack Cox, and Charles Chap-
man whole, as ordered by the National Labor Re-
lations Board, for any loss of earnings and benefits
they may have suffered by reason of their layoffs
on 19 March and/or I July 1982.
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA AND ITS LOCAL No.
1145
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge. This
matter was submitted to the Division of Judges on a stip-
ulated record, signed by the parties on various dates in
March 1983, and has been assigned to me for the issu-
ance of a decision and other appropriate action. The
order consolidating cases and the consolidated complaint
issued on September 16, 1982 (all dates hereinafter are in
1982, unless otherwise noted).' An order amending the
consolidated complaint was issued January 14, 1983.
The consolidated complaint, as amended, alleges that
the above-named Respondent Union (the Union) violated
Section 8(b)(2) and (IXA) of the National Labor Rela-
tions Act by invoking superseniority clauses in its bar-
gaining agreement with the above-named Respondent
Company (the Company) to prevent the layoff of certain
named union officers, thus attempting to cause and caus-
ing the layoff of employees Ballard, Vandermeer, C.L.
Guenseth (Guenseth), James Simpson (Simpson), and
Jack Cox (Cox), who otherwise would not have been
laid off. It is further alleged that the Company violated
Section 8(aX1) and (3) of the Act by complying with the
Union's requests, thus discriminating against Vander-
meer, Ballard, Guenseth, Simpson, and Cox and interfer-
ing with, restraining, and coercing its employees in the
exercise of rights under the Act.
The answers to the complaint deny the unfair labor
practices alleged, but admit allegations sufficient to justi-
fy the assertion of jurisdiction in this case under current
standards of the Board (the Company, in the operation of
a plant at Canton, Illinois, manufacturing tractors and ag-
ricultural equipment, during a recent annual period had
goods and materials valued in excess of S50,000, shipped
to its Canton plant directly from out of the State, and
during the same period shipped from its Canton plant
I Charges and amended charges in Case 33-CB-1828 were filed by
David Vandermeer (Vandermeer) on July 2, August 3 and 12, and De-
cember 27; a charge and namended charge were filed in Case 33-CB-1845
by Robert Ballard (Ballard) on August 16 and December 22; a charge
was filed by Ballard in Case 33-CB-6119 on August 16; and a charge
was filed by Vandermeer in Case 33-CA-6155 on September 9.
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finished goods valued in excess of $50,000 to places out-
side the State of Illinois), and to justify a finding that the
Union is a labor organization within the meaning of the
Act.
On the entire record in this case, and after due consid-
eration of the briefs filed by the General Counsel, Re-
spondent Union, and Respondent Company, I make the
following
FINDINGS AND CONCLUSIONS
I. THE FACTS
A. The Bargaining Agreement
At the times material to this proceeding the Company
and the Union were parties to a collective-bargaining
agreement which provided in pertinent part (Exh. 2, art.
16, sec. 14):
(a) It is agreed that thirteen (13) designated Local
Union Officers, the recognized committeemen and
the recognized Stewards shall be accorded a pre-
ferred seniority status subject to the provisions here-
inafter stated ...
(b) The right to designate the persons who shall
have such preferred seniority status shall be vested
in the Union, provided that the list at all times shall
include only employees in office and whose services
are reasonably necessary for the conduct of the
Local Union's business ...
Such preferred status is limited in the contract to
layoff and recall to work only.
In accordance with the provisions of the bargaining
agreement, the Union supplied the Company with a list
of officers, committeemen, and stewards entitled to pre-
ferred seniority status, which included the following,
with whose status we are primarily concerned here: re-
cording secretary Dennis Derosear; financial secretary
and treasurer Paul Fianciskovich; trustee Jack Poppen-
hager; and sergeant-at-arms Robert Clark.
It is noted that Franciskovich is also listed as an alter-
nate steward in his department. However, footnote 3 to
the stipulation of facts states that alternate stewards were
not afforded superseniority status.
About September 21, because of an adverse decision of
an administrative law judge in Cases 26-CA-9174, 26-
CA-9312, 26-CB-1773, and 26-CA-1799, involving the
application of preferred seniority at the Company's
Memphis, Tennessee plant, the Company proposed that
grants of preferred seniority to persons holding local
union positions of trustee, sergeant-at-arms, and record-
ing secretary be rescinded "to avoid any prospective li-
ability."
About October 14, the Company and the Union exe-
cuted a memorandum of agreement providing in perti-
nent part that "effective immediately all grants of pre-
ferred seniority to local union officers [holding] positions
of Trustee, Sergeant-at-Arms, Recording Secretary, or
Guide are immediately rescinded unless their duties also
include administration of the Collective-Bargaining
Agreement." The memorandum provided that, if the ad-
verse decision in the Memphis cases were reversed, pre-
ferred status for these officers would be restored.
B. The Layoffs
After due notice, Respondent, on March 19, laid off
approximately 26 of 43 employees in the unit involved
here, including Vandermeer, Ballard, Simpson, and
Charles Chapman (Chapman). Franciskovich, Derosear,
Poppenhager, and Clark, who were retained, had less
normal seniority than Vandermeer, Ballard, Simpson and
Chapman, and would have been laid off before the four
named employees but for their superseniority based on
their union status.
About May 10, the Company recalled five of the laid-
off unit employees, including Vandermeer, Ballard,
Chapman, 2 and Simpson.
After due notice, Respondent, on July 1, laid off ap-
proximately 12 of its remaining 22 unit employees, in-
cluding Vandermeer, Ballard, Cox, and Simpson. Again,
Franciskovich, Derosear, Poppenhager, and Clark were
not laid off due to their superseniority based on union
status, though they had less normal seniority than Van-
dermeer, Ballard, Cox, and Simpson, and would have
been laid off before these employees, except for their su-
perseniority based on union status.
Vandermeer, Ballard, Chapman, Cox, and Simpson
were qualified to perform the work that Franciskovich,
Derosear, Clark, and Poppenhager performed on the oc-
casion of these layoffs.
The Canton plant was shut down for vacation from
July 5 to 25. Because of lack of work, financial secre-
tary-treasurer Franciskovich and sergeant-at-arms Clark
were laid off from September 3 to 27, and trustee Pop-
penhager and recording secretary Derosear were laid off
from September 3 to October 11. By reason of the Octo-
ber 14 memorandum of understanding between the Com-
pany and the Union restricting preferred seniority, trust-
ee Poppenhager and recording secretary Derosear were
laid off on December 10, and Vandermeer, Ballard, and
Simpson were recalled on December 13.
Cox, who had been laid off on July 1, retired as of Oc-
tober 31. Ballard, who was recalled from layoff on De-
cember 13, retired February 1, 1983.
C. Functions of Union Officers
The executive officers of Local Union No. 1145 (the
Local Union) are its president, vice president, recording
secretary, financial secretary-treasurer, three trustees,
sergeant-at-arms, and guide. These officers constitute the
local union executive board. As has been noted, we are
here concerned primarily with the functions and duties
of the financial secretary-treasurer, recording secretary,
trustees, and the sergeant-at-arms. In pertinent part, they
are as follows.
2 Thereafter, Chapman retired about June 1. Although he is not specif-
ically mentioned in the complaint, his case has been fully stipulated and is
of the same character and based on the same theory as the others. No
party urges dismissal because of his omission from the complaint. Em-
ployee Guenseth mentioned in the complaint is not mentioned in the stip-
ulation of facts.
1344
INTERNATIONAL HARVESTER CO.
The financial secretary-treasurer is responsible for col-
lecting and disbursing local union income, including col-
lecting checked-off dues at the company plant, payment
of local union bills and expenses, and keeping local union
financial records. The financial secretary-treasurer sends
dues reports to the International Union, makes financial
reports to the local union membership, and files neces-
sary reports to the state and Federal governments. He
also assists in audits of local union books, and issues
withdrawal and transfer cards to members.
If a problem arises as to dues checkoff, including a
problem raised by an employee, the financial secretary-
treasurer may consult with the employee's supervisor,
the company payroll department, the Company payroll
records, payroll supervisors, and on occasion the compa-
ny controller to resolve the problem. About once a week
employees consult the financial secretary-treasurer in the
plant concerning dues problems. The financial secretary-
treasurer and the trustees administer the strike benefit
fund. Eligibility for benefits is determined by records
kept by the recording secretary.
During the times material to this proceeding, Paul
Franciskovich (Franciskovich) was the financial secre-
tary-treasurer of the Local Union. He was also elected
the alternate day-shift steward and was appointed alter-
nate chairman of the bargaining unit. He has served in
these capacities three or four times a month, at least one
day at a time and, on various occasions when the stew-
ard or the chairman has been absent, Franciskovich has
served in their place for longer periods of time. Virtually
every time he has served as steward or chairman, Fran-
ciskovich has handled grievances, dealing directly with
company representatives. However, the stipulation of
facts makes clear that these are not normal duties of the
financial secretary-treasurer, as such, and Franciskovich
was not accorded superseniority because of his position
as alternate steward or alternate chairman of the bargain-
ing unit at the times involved here. See footnote 3 to the
stipulation stating that "alternate stewards and alternate
committeemen were not afforded superseniority status." s
The duties of the financial secretary-treasurer set out
above are performed at the local union hall, except that
his activities in issuing transfer and withdrawal cards, re-
solving problems concerning checked-off dues, and an-
swering employee questions about local union activities
may be performed in the plant. Of course, Francisko-
vich's activities as alternate steward and alternate chair-
man of the bargaining unit may be performed in the
plant, but these are not, so far as this record shows, part
of his duties as financial secretary-treasurer.
As noted, the financial secretary-treasurer is a member
of the executive board of the local union, as are the re-
cording secretary, the trustees, and the sergeant-at-arms.
Between membership meetings, the executive board is
empowered to act on behalf of the membership of the
local union subject to the approval of the membership.
The executive board formulates bargaining proposals for
' Significantly, Franciskovich was not listed as alternate chairman of
the bargaining unit in the list of officers supplied by the Union to the
Company (Exh. 5) for the purposes of preferred seniority, though the
stipulation states that he was appointed to that position about 6 years pre-
viously.
the union; makes recommendations to the membership of
the local union, after reports from the bargaining com-
mittee, on whether or not to ratify the bargaining con-
tract and whether or not to strike; members of the execu-
tive board serve on the local union strike committee,
serve as pickets, keep track of pickets, and answer ques-
tions from the membership and from the negotiating
committee about the strike and from the members about
the negotiations. 4 The executive board also decides who
attends conferences and how funds for those conferences
are allocated.
Except in special cirumstances, such as picketing, the
executive board performs its responsibilities at the local
union hall about a block away from the plant. The exec-
utive board, as such, does not meet with the Company in
regard to grievances.5 However, the executive board
does hear appeals from members complaining of griev-
ance handling decisions of the grievance/bargaining
committee, and may on appeal of a grievance previously
withdrawn or settled reinstate the grievance. Such func-
tions would normally be performed at the union hall,
though on occasion board members may be polled while
at work at the plant.
The recording secretary is responsible for keeping a
record of the proceedings of the local union, conducting
its general correspondence, including correspondence
with the Company regarding negotiations. The recording
secretary keeps records of membership meetings and
meetings of the executive board at which matters con-
cerning negotiations and grievances are often discussed,
and keeps records of pickets on which eligibility for ben-
efits are determined. He performs other recordkeeping,
research, and reporting duties required by the constitu-
tion and the local union bylaws. As has been noted, the
recording secretary is also a member of the local union
executive board.
The trustees of the local union are responsible for the
general supervision over all funds and property of the
local union. They are also members of the executive
board.
The sergeant-at-arms of the local union is responsible
for introducing new members and visitors at union meet-
ings, assisting the local union president in maintaining
order at union meetings, and taking charge of the local
union's property.
According to the stipulation of facts, if the local union
president is absent or unavailable, the next ranking offi-
cer substitutes for the president in grievance meetings or
negotiations. The order of substitution is as follows: vice
president, recording secretary, financial secretary-treasur-
er, trustees, sergeant-at-arms, and guide.
' According to the stipulation of facts, all officers are approached in
the plant, some more than others, to answer questions about union buri-
ness, the status of negotiations, what happened at a union meeting, or
concerning grievances.
I The grievance procedure in the bargaining agreement between the
Company and the Union (Exh. 2, art. VI) does not provide for participa-
tion by the executive board, as such, or by the financial secretary-treasur-
er, or the recording secretary, the trustees, or the sergeant-at-arms.
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. ANALYSIS AND CONCLUSIONS
It has long been recognized that the grant of supersen-
iority to union stewards and other union officers so that
they receive preferred treatment in respect to hire,
tenure, and conditions of employment, because of their
union status, is inherently discriminatory. Unless such
discrimination can be otherwise justified, it is a violation
of the Act. See Gulton Electro-Voice, 266 NLRB 406
(1983). In Gulton, the Board, reversing previous cases,
held that "the grant of superseniority to those who do
not perform steward or other on-the-job contract admin-
istration functions is not justified."
We are here concerned with the application of super-
seniority (otherwise called preferred seniority) to persons
occupying the status of financial secretary-treasurer, re-
cording secretary, trustee, and sergeant-at-arms of the
local union, so that these persons were retained when
they otherwise would have been laid off except for the
possession of such union status. As a result, employees
with greater normal seniority than these union officers,
but without union status, who would have been retained
under the normal operation of the bargaining agreement,
were laid off.
In the circumstances of this matter, I find that by
granting superseniority to the union financial secretary-
treasurer, recording secretary, trustee, and sergeant-at-
arms, causing the layoff of other employees with greater
normal seniority, the Union and the Company, Respond-
ents here, violated the Act.
The union sergeant-at-arms, whose primary functions
involve protocol and keeping order at union meetings,
clearly does not perform steward or other on-the-job
contract administration functions justifying preferred se-
niority status. Though the sergeant-at-arms is a member
of the executive board, that board does not, either indi-
vidually or collectively, perform steward-like functions
or on-the-job administration of the bargaining agreement.
Similarly, the fact that the sergeant-at-arms may be sev-
enth in line to perform the functions of the president in
grievance meetings or negotiations when the president is
not available does not justify affording the sergeant-at-
arms preferred treatment in layoffs and recalls to work.
As I read Gulton, the Board found justified preferred
treatment for those who on an on-the-job basis regularly
represent employees or administer the bargaining con-
tract but not those who may perform those functions on
an indeterminate or purely occasional basis. Such officers
are readily substituted for without damage to the em-
ployees' rights or the administration of the contract.
Similarly, the trustees' primary functions have to do
with the Union's property. Though they are members of
the executive board, and are fourth, fifth, or sixth in line
to substitute for the president of the Union, these func-
tions are not sufficient to afford the trustees preferred
status, as discussed above.
The recording secretary keeps the union records and
conducts its general correspondence at the union hall, in-
cluding correspondence with the Company concerning
negotiations. He is also a member of the executive board
and second in line to substitute for the president. For the
reasons discussed in connection with the sergeant-at-
arms, those functions do not justify preferred status.
The financial secretary-treasurer of the local union, like
the financial secretary-treasurer in Gulton, has responsi-
bilities that are primarily financial. In the course of such
duties he does attempt to resolve problems concerning
checked-off dues, but it seems clear that these are not
considered grievances that are processed under the
grievance procedure of the bargaining agreement. The
contract makes no provision for the financial secretary-
treasurer to perform grievance functions, nor does the
stipulation indicate that problems with dues are proc-
essed as grievances. Also for reasons discussed herein-
above, the financial secretary-treasurer is not entitled to
preferred seniority because of membership on the local
union executive board, or because he is in line, on occa-
sions when the local union president, vice president, and
the recording secretary are all absent, to substitute for
the local union president.
Franciskovich, who was the local union financial sec-
retary-treasurer during the times with which we are here
concerned, was also an appointed alternate chairman and
elected alternate steward. As such he may have per-
formed duties justifying preferred treatment in layoff and
recall under the principles laid down in Gulton. Howev-
er, as has been noted, Franciskovich was not granted
preferred seniority because he occupied the position of
alternate steward or alternate chairman, or performed
the duties associated with those positions. That being so,
the stipulation of facts concerning those positions and the
functions inherent in those positions is irrelevant.
Therefore, based on the above, and the record as
whole, I find that, by improperly designating the local
union recording secretary, the financial secretary-treasur-
er, trustees, and sergeant-at-arms as entitled to supersen-
iority under the bargaining agreement, thus causing the
layoffs of David Vandermeer, Robert Ballard, James
Simpson, Jack Cox, and Charles Chapman, who other-
wise would not have been laid off, Respondent Union
has violated Section 8(b)(1)(A) and (2) of the Act, and
Respondent Company, by the layoff of those employees
has violated Section 8(a)(l) and (3) of the Act.6
In coming to these conclusions I have carefully con-
sidered Respondent Company's contentions that the
Company should not be held to have violated the Act in
this case because (1) it was "complying with its contrac-
tual obligation to accord designated Local Union offi-
cials preferred seniority status for layoffs and recalls"
(Br. 9-10), (2) Gulton should be applied only prospec-
tively and should not affect conduct occurring before
March 7, 1983, the date of the Gulton decision (Br. 12),
and (3) "absent actual knowledge or reasonable grounds
to suspect that the Union was improperly exercising its
vested rights to designate those persons entitled to pre-
ferred status," the Company cannot be held to have vio-
lated the Act. (Br. 13.)
I find these contentions without merit. The fact that
the Company's actions were in compliance with the bar-
gaining contract will not justify such conduct, if it is, as
8 The record shows that employees other than the named employees
were laid off when they were. However, the record does not show that
these other employees were discriminated against by reason of the grant
of superseniority to the officers of the Union.
1346
INTERNATIONAL HARVESTER CO.
I find, in violation of the Act. Respondent Company's ar-
gument that the principle in Gulton cannot apply to con-
duct occurring before the date of the Board's decision in
that case is difficult to follow. If applied literally it seems
to mean that though the Board may announce a new
principle in a case before it-as in Gulton-it may not
find the conduct in that case, occurring before the date
of the decision, to be violative of the Act. But the Su-
preme Court has held that the Board may properly alter
principles of conduct under the Act and find violations
of those principles on a case-by-case basis. See NLRB v.
J. Weingarten, 420 U.S. 251 (1975).
It may be, however, and I have assumed that the
Company by this argument takes the position that no
remedy should be provided for the employees who were
laid off before Gulton was decided. This will be consid-
ered hereinafter, together with a similar argument by Re-
spondent Union, in connection with the discussion of the
Remedy.
Respondent Company's final argument is that it should
not be held to have violated the principles laid down in
Gulton because it was unaware of the duties and respon-
sibilities of the officers designated by the Union to be ac-
corded superseniority. However, the Company was
aware that the collective-bargaining agreement did not
restrict superseniority only to union officers who per-
formed on-the-job grievances or contract administration,
as required by Gulton.7 The record establishes, as previ-
ously found, that the recording secretary, the financial
secretary-treasurer, the trustees, and the sergeant-at-arms
do not perform on-the-job duties of stewards or other-
wise administer the bargaining contract on the job. Since
these functions normally and regularly would involve
dealing with the Company, it is my conviction and I
infer and find that Respondent Company had reasonable
cause to believe that these four union officers did not
perform on-the-job steward duties or were engaged, on
the job, in the administration of the contract.
In any event, it has long been established that in grant-
ing superseniority to union officers for union-related rea-
sons an employer (as well as the union involved) thereby
discriminates against other employees in violation of the
Act, absent proper justification. See Gulton, supra. Re-
spondent Company may not here avoid the consequences
of its discriminatory action by urging it was unaware
that its justification for such discrimination was defi-
cient.8
7 The bargaining agreement provides that the Union shall designate
those persons entitled to preferred seniority whose services are "reason-
ably necessary" for the conduct of the local union's business.
a Respondent Company cites Postal Service, 254 NLRB 74 (1981);
Explo, Inc., 235 NLRB 918 (1978); and Union Carbide Corp., 228 NLRB
1152 (1977), in support of its position. I find these decisions distinguish-
able. In Postal Service and in Explo, it was held that the unions there vio-
lated the Act by the invidious method of selection of stewards for super-
seniority, but that the companies did not violate the Act by according
those stewards superseniority because it was unaware of the improper se-
lection of stewards. In Union Carbide, it was held that proper justification
was shown for an aberrant application of superseniority.
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By improperly designating the local union recording
secretary, financial secretary-treasurer, trustees, and ser-
geant-at-arms as entitled to superseniority under the bar-
gaining agreement between the Union and the Company,
causing Respondent Company to discriminatorily lay off
David Vandermeer, Robert Ballard, James Simpson,
Jack Cox, and Charles Chapman, who otherwise would
not have been laid off, Respondent Union violated Sec-
tion 8(b)(1A) and (2) of the Act, and Respondent Com-
pany, by discriminatorily laying off the named employees
for various periods of time, violated Section 8(a)(1) and
(3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union and Respondent
Company have engaged in certain unfair labor practices,
it will be recommended that they be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent Company discri-
minatorily laid off employees in violation of Section
8(a)(3) and (1) of the Act because Respondent Union, in
violation of Section 8(b)(1)(A) and (2) of the Act, desig-
nated certain union officials to be accorded supersenior-
ity under the bargaining agreement though those officials
were not entitled to such status under the Board's deci-
sion in Gulton Electro-Voice, supra.
Of the named employees (Vandermeer, Ballard, Simp-
son, Cox, and Chapman) found to have been discrimina-
torily laid off on March 19, 1982, and/or July 1, 1982, it
appears that Vandermeer and Simpson have been rein-
stated and Ballard, Cox, and Chapman have retired from
employment with the Company. The General Counsel in
his brief does not request reinstatement.
With respect to backpay, Respondent Union argues
that, notwithstanding the violations of the Act found in
this case, backpay should be tolled for the time prior to
the Board's decision in Gulton, inasmuch as, the Union
alleges, its actions in this proceeding were legal under
the law prior to the decision in Gulton. Respondent
Company seems to agree with this position and also
argues that it should be held only secondarily liable for
backpay in the circumstances.
Before 1962, the Board on occasion tolled backpay, as
in instances in which the Board reversed the findings of
the trial examiner (now administrative law judge) that an
employee's termination did not violate the Act. In 1962,
this policy was reversed, and, as stated by the court in
NLRB v. R. J. Smith Construction Co., 545 F.2d 187 at
192 (D.C. Cir. 1976), "In essence, the [Board's] present
policy is not to toll back pay awards, absent 'special fac-
tors' which render back pay inappropriate to effectuate
the policies of the Act." This policy was confirmed by
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board in Ferrell-Hicks Chevrolet, 160 NLRB 1692
(1966), in which the two cases cited by Respondent
Union9 were distinguished on the grounds that there
were "special factors" justifying tolling backpay in those
cases. I am unaware of any case since Ferrell-Hicks in
which the Board has tolled backpay.
Respondent Union does not here advance any "special
factors"-other than its asserted reliance on the Board's
decision prior to Gulton-which would serve to justify a
departure in this proceeding from the Board's normal
remedy requiring restoration of the status quo for em-
ployees whose rights under the Act have been thus vio-
lated. The grant of superseniority to the union officials
involved here was a particular benefit to the Union, not
to the employees, who, indeed, lost their jobs thereby.
There is no reason the burden of paying for such union
policy should be shifted to the employees, where the im-
plementation of the union policy has been found to vio-
late the Act. To toll backpay here would place the cost
of the Union's erroneous policy on the employee victims
of that policy instead of on those parties who were re-
sponsible for formulating and carrying it out. For these
reasons, I find that backpay in this case should not be
tolled.
However, Respondent Company's request that it
should be held only secondarily liable for backpay in this
case has more merit. So far as appears, the Company did
not stand to benefit from the Union's policy granting su-
perseniority to the union officials involved, and the facts
show that, when the Company became advised that this
policy did not conform with the Board's interpretation of
the law, it took prompt action to bring its practices in
compliance with the Act. For the reasons stated, it will
be recommended that Respondent Company be held
only secondarily responsible for backpay in this matter.
Based on the above, it will be recommended that Re-
spondent Union and Respondent Company shall be or-
dered jointly and severally, with Respondent Union pri-
marily, and Respondent Company secondarily liable, to
make David Vandermeer, Robert Ballard, James Simp-
son, Jack Cox, and Charles Chapman whole for any loss
of earnings and benefits resulting from their layoffs on
March 19, 1982, and/or July 1, 1982, such backpay to be
computed in the manner set forth in F. W Woolworth
Co., 90 NLRB 289 (1950), with interest thereon to be
computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edl 0
9 Koher Co., 148 NLRB 1434 (1964), and Fibreboard Corp., 138 NLRB
850 (1962).
10 If no exceptions are filed as provided in 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.
ORDER
A. Respondent International Harvester Company,
Canton, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Laying off or failing to recall employees from
layoff by granting superseniority to officials or agents of
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, and its
Local Union No. 1145, unless such officials or agents are
responsible for on-the-job grievance processing or on-
the-job collective-bargaining contract administration.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
protected by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act.
(a) Jointly and severally with Respondent Union, but
with Respondent Company secondarily liable, make
David Vandermeer, Robert Ballard, James Simpson,
Jack Cox, and Charles Chapman whole for any loss of
earnings and benefits they may have suffered as a result
of the discrimination against them, in the manner set
forth in the section of this decision entitled "The
Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Expunge from its records any reference to the
layoff of David Vandermeer, Robert Ballard, James
Simpson, Jack Cox, and Charles Chapman on March 19
and/or July 1, 1982, and do not use evidence of their un-
lawful layoff as a basis for future personnel actions
against them.
(d) Post at its operations at Canton, Illinois, copies of
the attached notice marked "Appendix A." t' Copies of
the notice, on forms provided by the Regional Director
for Region 33, after being signed by Respondent Compa-
ny's authorized representative, shall be posted immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent Company to ensure
that such notices are not altered, defaced, or covered by
any other material.
(e) Post at the same places and under the same condi-
tions set forth in paragraph A,2,(d), above, as soon as
forwarded by said Regional Director, copies of the at-
tached notice marked "Appendix B."
(f) Mail signed copies of the attached notice marked
"Appendix A" to the Regional Director for Region 33
for posting by Respondent Union.
i" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1348
INTERNATIONAL HARVESTER CO.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps that Re-
spondent Compay has taken to comply.
B. Respondent International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, and its Local Union No. 1145, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Respondent Com-
pany to discriminate against employees, in violation of
Section 8(aX3) of the Act, by granting superseniority for
layoff and recall from layoff to officials or agents of the
Respondent Union who are not responsible for on-the-
job grievance processing or on-the-job collective-bar-
gaining contract administration.
(b) In any like or related manner restraining or coerc-
ing the employees of Respondent Company in the exer-
cise of their rights protected by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the polices of the Act.
(a) Jointly and severally with Respondent Company,
but with Respondent Union primarily liable, make David
Vandermeer, Robert Ballard, James Simpson, Jack Cox,
and Charles Chapman whole for any loss of earnings and
benefits they may have suffered by reason of the discrim-
ination against them, such lost earnings and benefits to be
determined in the manner set forth in the section of this
decision entitled "The Remedy."
(b) Post at its office and meeting halls used by or fre-
quented by its members and employees it represents at
Respondent Company's Canton, Illinois facility copies of
the attached notice marked "Appendix B." ' Copies of
the notice, on forms provided by the Regional Director
for Region 33, shall be posted by Respondent Union
after being signed by Respondent Union's authorized
representative, immediately upon receipt. The foregoing
notice shall be maintained by Respondent Union for 60
consecutive days after posting in conspicuous places
where notices to the above-named members and employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent Union to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Post at the same places and under the same condi-
tions as set forth in paragraph B,2,(b), above, as soon as
forwarded by said Regional Director, copies of the at-
tached notice marked "Appendix A."
(d) Mail signed copies of the attached notice marked
"Appendix B" to the Regional Director for Region 33
for posting by Respondent Company.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
Union has taken to comply.
" See fn. 10 above.
1349