Sheaffer Eaton Division of Textron, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1005 (N.L.R.B. 1980)

SHEAFFER EATON DIVISION OF TEXTRON. INC.
Sheaffer Eaton Division of Textron, Inc. and Wil-
liam L. Glander
United Paperworkers International Union, AFL-
CIO, Local No. 882 and William L. Glander.
Cases -CA-16649 and 1-CB-4685
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 27, 1980, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting brief,
and the Respondents each filed a brief in opposi-
tion to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
I cannot agree with my colleagues' adoption of
the Administrative Law Judge's Decision. For the
reasons stated in my dissent in Parker-Hannifin Cor-
poration, 231 NLRB 884 (1977), I would find that
utilization of the superseniority provision herein to
protect the economic status of union officials is un-
lawful because it does not serve the interests of
unit employees, but merely rewards an individual
because of his position in the Union.
Moreover, in the instant case my colleagues ele-
vate form over substance by failing to find that the
superseniority provision, as applied to Steward
Monterosso, in fact resulted in "upward bumping"
enabling Monterosso to use his stewardship to
achieve a promotion at the expense of a more
senior unit employee. Such "upward bumping" is
an unwarranted rejection of the underpinnings of
the Board majority's decisions in Parker-Hannifin,
supra. McGregor- Werner, Inc., and Dairylea Coop-
erative, Inc., 219 NLRB 656 (1975). Accordingly, I
respectfully dissent.
Motion Picture Laboratory Technicians, Local 780. International Alli-
ance of 7'heatrcal Stage Employees and Moving Picture Operators of the
United States and Canada, 4FL-CIO (cGregor-Werner, Inc ),. 227 NLRB
558 (197h)
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOIOFI:, Administrative Law Judge: Upon
charges filed on October 5, 1979, and amended charges
filed on October 30, 1979, by William L. Glander, an in-
dividual, against Sheaffer Eaton Division of Textron,
Inc., and United Paperworkers International Union,
AFL-CIO, Local No. 882, herein referred to, respective-
ly, as Respondent-Employer and Respondent-Union, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 1, issued a consoli-
dated complaint dated November 13, 1979, alleging vio-
lations by Respondents of Section 8(a)(3) and (1), Section
8(b)(2) and (I)(A), and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended, herein called
the Act. Respondents, by their answers, denied the com-
mission of any unfair labor practices.
Pursuant to notice, hearing was held before me in
Pittsfield, Massachusetts, on April 3, 1980, at which the
General Counsel and Respondents were represented by
counsel and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce
evidence. Thereafter, the parties filed briefs which have
been duly considered.
Upon the entire record in this case, and from my ob-
servations of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent-Employer is a Delaware corporation en-
gaged in the manufacture, sale, and distribution of paper
and related products at its Pittsfield, Massachusetts,
plants. In the course and conduct of its business oper-
ations, Respondent-Employer, annually, sells and ships
products valued in excess of $50,000, from its Pittsfield
plants, directly to points located outside the Common-
wealth of Massachusetts. Annually, it purchases and re-
ceives, at the aforementioned plants, goods and materials
valued in excess of $50,000 which are sent from points
located outside the Commonwealth of Massachusetts. I
find that Respondent-Employer is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
United Paperworkers International Union, AFL-CIO,
Local No. 882, is a labor organization within the mean-
ing of Section 2(5) of the Act.
252 NLRB No. 141
1005
DECISIONS OF NATIONAL LABOR RFLATIONS BOARD
Ilt. THE UNFAIR ABOR PRACTICES
A. Background
The Union was certified by the Board, in 1956, as the
exclusive bargaining agent of all production and mainte-
nance employees working at the Company's plants in
Pittsfield, Massachusetts. Since that time, Respondents
have been parties to successive contracts, covering that
unit, each of which has contained a clause granting su-
perseniority, for layoff and recall purposes, to certain of-
ficials of the Union. The contract effective March 1,
1977, to March 1, 1980, contained the following clause:
Article IX-Seniority
Q. For the purpose of layoffs only, it is agreed that
the five (5) elected officers of the Local Union,
President, Vice President, Financial Secretary, Re-
cording Secretary and Treasurer, as well as the two
Chief Stewards, Senior Executive Board Member,
Department Stewards, and remaining Executive
Board Members with at least (2) years length of
service with the Company shall have top seniority
in their respective departments and classifications,
and in the order of progression stated, for work
which in each case said officers and stewards are
qualified to perform.
In this case, while the General Counsel does not contend
that the foregoing contractual provision is unlawful on
its face, it urges that Respondents violated the Act by
their implementation of same. Thus, contrary to Re-
spondents, it is the General Counsel's view that those
parties, by their interpretation of, and practice under, the
contract, granted superseniority to stewards for purposes
beyond layoff and recall; namely, for purposes of promo-
tion or "upward bumping."
B. Facts
The facts are not in dispute and may be summarized,
as follows: The Charging Party, William L. Glander,
was hired on July 20, 1964, as a general trucker in Re-
spondent-Employer's box department. On June 16, 1965,
he transferred to department 609 and, as of that date, he
began accumulating departmental seniority in the afore-
said department. Within that department, Glander, on
March 24, 1969, successfully bid to the "machine-cutter
programed" classification, and that became his perma-
nent job classification.' Jeffrey J. Monterosso was hired
into department 609 on June 24, 1968. On April 4, 1972,
Monterosso successfully bid to the "machine-cutter pro-
gramed" classification. Thereafter, and at all times mate-
rial herein, Monterosso, based on actual departmental se-
Under the practice followed by the Company and the Union, and
pursuant to their understanding of the governing collective-bargaining
agreement, an employee's permanent job classification is the classification
to which he is hired or, if the employee thereafter successfully bids to
another job or jobs, the last job to which he has successfully bid. If an
employee is laid off from his permanent classification job and then
"bumps" into another job, the employee retains his permanent classifica-
tion and is placed on "bump/layoff' status, is entitled to recall to his per-
manent classification whenever a vacancy occurs. Such recall is, appar-
ently, automatic and involuntary.
niority, was the least senior of the machine-cutters, and
Glander was the next least senior such employee. 2
On October 6, 1975, Respondent-Employer shipped
one of its cutter machines to another plant and, thereby,
reduced the number of available slots in the machine-
cutter programed classification from six to five. Conse-
quently, Monterosso was placed on "bump/layoff'
status, that is, following layoff, he bumped into a job
other than his permanent classification job while retain-
ing his recall rights in case a vacancy later occurred
within his permanent classification.:' Thereafter, and until
July 2, 1979, Monterosso remained in "bump/layoff"
status and worked at various lower paying jobs in de-
partment 609. 4
The instant dispute occurred when, on July 2, 1979,
following his election as steward by the first-shift em-
ployees working in department 609, Monterosso was, for
layoff purposes, granted "top seniority" within his per-
manent job classification and, then, recalled to said ma-
chine-cutter programed classification. This was accom-
plished under "Article IX, Section Q" of the contract
and was in accordance with past practice and consistent
with Respondents' interpretation of that contractual pro-
vision. As a result of that action, and in order to accom-
modate Monterosso's return to his permanent classifica-
tion, Glander was placed on layoff status and he, in turn,
bumped to a lower paying job.
All department stewards at Respondent-Employer's
plants are like Monterosso, elected by the departmental
employees they serve, for terms of 2 years. They repre-
sent their constituents in the processing of grievances
and, generally, in the application of the collective-bar-
gaining agreement.5
The clause granting superseniority for stewards and
other union officials, as contained in the 1977-80 agree-
ment, was reviewed by the union membership on Febru-
ary 2, 1977. A motion to remove the clause from the
contract was overwhelmingly defeated. Like its pred-
ecessors, and as interpreted and implemented by Re-
spondents, the superseniority provision does not apply to
the bidding procedure utilized to fill a job vacancy. It
applies only to traditional layoff situations as well as to
"bump/layoff" situations, as occurred herein.
C. Conclusions
In Dairylea Cooperative Inc.,6 the Board found a con-
tractual superseniority for union stewards clause to be
2 In the case of a layoff of employees within a particular job classifica-
tion, the employees with at least departmental seniority within that classi-
fication are under the contract, the ones selected for layoff.
a In addition to the "bump/layoff" status which he accepted, Monter-
osso, upon his layoff from his permanent job classification, had two other
contractual options. He could have accepted a layoff, in the traditional
sense of the word, and remained outside the plant until recalled to his
permanent job; or he could have selected an "available work" status, per-
mitting him to fill temporary job vacancies as such vacancies occurred.
4 In October 1978 and, again, in December 1978, he was recalled, for
brief periods of time, to his permanent job classification.
I Since his election as steward, less than I year before the hearing,
Monterosso has handled some 100 grievances at the first step of the con-
tractual grievance procedure. He keeps a copy of the contract at his ma-
chine.
6 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (2d Cir. 1976).
1006
SHEAFFER EATON DIVISION OF TEXTRON, INC.
to union activities. The clause there gave stewards pref-
erence in securing a wide range of on-the-job benefits.
The Board held:
In reaching the above conclusion, we are aware
that it is well established that steward super senior-
ity limited to layoff and recall is proper even
though it, too, can be described as tying to some
extent an on-the-job benefit to union status. The
lawfulness of such restricted super seniority is, how-
ever, based on the ground that it furthers the effec-
tive administration of bargaining agreements on the
plant level by encouraging the continued presence
of the steward on the job. It thereby not only
serves a legitimate statutory purpose but also re-
dounds in its effects to the benefit of all unit em-
ployees. Thus, super seniority for layoff and recall
has a proper aim and such discrimination as it may
create is simply an incidental side effect of a more
general benefit accorded all employees. It has not,
however, been established in this case or else where
that super seniority going beyond layoff and recall
serves any aim other than the impermissible one of
giving union stewards special economic or other on-
the-job benefits solely because of their position in
the Union . . . in view of the inherent tendency of
super seniority clauses to discriminate against em-
ployees for union-related reasons, and thereby to re-
strain and coerce employees with respect to the ex-
ercise of their rights protected by Section 7 of the
Act, we do find that super seniority clauses which
are not on their face limited to layoff and recall are
presumptively unlawful, and that the burden of re-
butting that presumption (i.e., establishing justifica-
tion) rests on the shoulders of the party asserting
their legality.
In subsequent decisions, the Board has had occasion to
consider superseniority arrangements which not only
permit a steward to avoid layoff but, also, to retain his
job classification. In Parker-Hannifin Corporation,7 the
employer reduced the number of its welders within a
particular classification from two to one. The employee
with lesser actual seniority was a steward and, so, by
virtue of the operation of the contractual superseniority
system, he retained his classification while the welder
with greater actual seniority was forced to step down to
another classification at a reduction in pay. This, despite
the fact that, absent superseniority, the steward had suffi-
cient actual seniority to avoid layoff by bumping down
to a lower classification. Noting that superseniority had
been used by the steward to prevent demotion, and not
to obtain promotion, the Board found no illegality, hold-
ing:
A superseniority clause which protects a steward
from downgrading is more than is strictly necessary
to protect a steward from layoff because he could
perform his steward functions as long as he re-
mained on the job in some capacity. Such strict ap-
plication of Dairylea, however, ignores the realities
of collective-bargaining and the working relation-
7 231 NLRB 884 (1977).
ship between employer and employees. The difficul-
ties in negotiating, drafting. and administering a col-
lective-bargaining agreement must of practical ne-
cessity permit a degree of flexibility, albeit limited,
in the formulation of superseniority clauses. What is
involved here is drawing a line between those pro-
visions which are presumptively impermissible and
those which are permitted under the Act. We be-
lieve that superseniority which, in the event of lay-
offs or job eliminations, permits a steward to keep
his particular job or classification and protects him
from downgrading is a reasonable means to achieve
the permitted end of keeping him on the job. Under
such provisions, the steward does economically
benefit, but the gain is incidental to the aim of pro-
tecting the steward from layoff. The steward does
not get a new gain, but merely maintains his status;
he does not initiate the gain, but it results from the
employer's economic condition. For these reasons,
we find that superseniority which permits a steward
to maintain his status (or nearly equivalent status) in
the event of a slowdown falls within the Dairlea
definition of layoff and recall and is not presump-
tively unlawful.8
In the instant case, as in the cited post-Dairylea cases,
union officials are not permitted to utilize superseniority
for purposes of bidding to a new position.9 As in Parker-
Hannifin, here, a steward, by operation of the contrac-
tual superseniority system, was permitted to retain his
permanent classification job. The only difference is that
in Parker-lannifin the steward utilized superseniority to
avoid having to bump down to a lower paying job while
here, upon his election, Monterosso, by virtue of his su-
perseniority as steward, was recalled, from "bump/
layoff' status. to his permanent classification job. In the
General Counsel's view, Monterosso thus received a pro-
motion. In my view, what occurred is so closely akin to
the utilization of superseniority to effectuate a recall
from an out-of-plant layoff, a clearly lawful procedure,
that, under the rationale of Parker-Hannifin, a different
legal result should not obtain. Had Monterosso, by virtue
of his superseniority as steward, simply been recalled to
a job he once, but no longer, held, the General Counsel's
"promotion" argument would be unassailable. Here,
however, all parties agree that, under the contract, an
employee on out-of-plant layoff status, or on "bump/
layoff' status, retains his permanent classification until
recalled. Such recall will occur when a vacancy within
N See also Motion Picture Laboratorv Technicians. Local 780. Internation-
al Alliance of Theatrical Stage Employees and Moving Picture Operator of
the United Startes and Canada, AFL-CIO (McGregor-Werner. Inc.), 227
NL.RB 558 (1976), and Hlospital Service Plan of Net Jersey and Medical-
Surgical Plan of New Jersey, 227 NLRB 585 (1976), where the Board ap-
proved he exercise of superseniority by stewards for the purpose of re.
taining their job classifications by means of lateral bumping. In those
cases, the Board, noting that the operative contracts did not permit stew-
ards to use supersemonirity to bid for new positions, concluded that if su-
persenioriy for stewards "does not permit latereral bumping, then it
means nothing at all" Thus, in lHospital Service Plan, the Board stated
"rTo require a teward to exercise superseniority only to take the lowest-
rated joh rather that be laid off would hardly aid in retaining standards "
" Also, here, as in McGregor, union stewards are elected by employees
and not appointed by the Union
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the classification occur and the procedure is automatic
and involuntary. Thus, the practice of Respondents
under the superseniority clause served to place Monter-
osso at the top of the seniority list within his permanent
classification, for layoff and recall purposes. As a result,
he was recalled from "bump/layoff" status and returned
to his permanent job, not to a new position. As in
Parker-Hannifin, the gain to Monterosso was incidental
to the lawful aim of protecting the steward from layoff
and keeping him on the job in order to further the effec-
tive administration of the contract, to the benefit of all
unit employees. Accordingly, I conclude that Respond-
ents, by their practice under the superseniority provisions
of the contract, did not violate the Act.
CONCLUSIONS OF LAW
1. Respondent Sheaffer Eaton Division of Textron,
Inc., is an employer engaged in commerce, and in oper-
ations affecting commerce, within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Respondent, United Paperworkers International
Union, AFL-CIO, Local No. 882, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondents, by their implementation of "Article
IX, Section Q" of the applicable collective-bargaining
agreement, have not engaged in conduct violative of the
Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER' o
The complaints are hereby dismissed in their entirety.
10 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
1008