Teamsters Local 823 (Campbell "66" Express)

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 851 (N.L.R.B. 1977)

GENERAL DRIVERS AND HELPERS LOCAL UNION NO. 823
General Drivers and Helpers Local Union No. 823,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America (Campbell "66" Express, Inc.;
Jones Truck Lines, Inc.; Roadway Express, Inc.)
and Avery F. Watts. Case 17-CB- 1519
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On May 26, 1976, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, General Drivers
and Helpers Local Union No. 823, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
CHAIRMAN FANNING, dissenting:
I would dismiss the complaint for the reasons set
forth in my dissenting opinion in Dairylea, 219
NLRB 656 (1975). There is no reason to believe the
Union had a discriminatory motive in providing
superseniority for its stewards or that any marginal
effect that might have in generating support for the
Union is not overborne by the immediate, and
patently legitimate, interest of the Respondent in
recognizing and encouraging service as a union
steward.
In the absence of exceptions. we adopt the Administrative Law Judge's
finding that the Respondent has not violated the Act by maintaining or
enforcing its agreement with Roadway Express. Inc.. proformna. We agree
that the Respondent's unjustified maintenance and enforcement of agree-
ments providing stewards with superseniority extending beyond layoff and
recall violates Sec. 8(bXIXA) and (2) as found by the Administrative Law
232 NLRB No. 129
Judge, for the reasons set forth in Dairylea Cooperative. Inc., 219 NLRB 656
(1975), enfd. 531 F.2d 1162 (C.A. 2. 1976).
Member Murphy agrees with the holding herein because the superseniori-
ty clause is "for all purposes." and thus goes beyond "presumptively lawful
job retention supersenionty clauses." including layoff, recall. shift assign-
ment, or retention of the same job or same category of job during
incumbency in such position, for union stewards and officers whose
functions relate in general to furthering the bargaining relationship. See her
concurring opinion in Union Carbide Corporation, 228 NLRB 1152 (1977).
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: Pursuant to a
charge filed on September 18, 1975, and an amended
charge filed on October 14, 1975, a complaint was issued
on December 5, 1975, which came on for hearing before
me in Joplin, Missouri, on March 9, 1976. The complaint
alleges that Respondent has, at all times material since
March 18, 1975, maintained and enforced clauses in
collective-bargaining agreements with three named em-
ployers giving Respondent's stewards superseniority re-
garding terms and conditions of employment in addition to
layoff and recall rights, asserted to be violative of Section
8(b)(2) and 8(bXXla) of the Act. Briefs have been received
from the General Counsel and the Respondent.
Upon the entire record in this proceeding, I hereby make
the following:
FINDINGS OF FACT
1. JURISDICTION
At all material times, Respondent was party to a
collective-bargaining agreement with Campbell "66" Ex-
press, Inc.; Jones Truck Lines, Inc.; and Roadway Express,
Inc. In the course and conduct of its operations from its
principal place of business at Springfield, Missouri,
Campbell "66" Express, Inc., annually performs services as
an interstate carrier of freight valued in excess of $50,000
for customers located outside the State of Missouri.
Similarly, Jones Truck Lines, Inc., from its principal place
of business at Springdale, Arkansas, annually performs
services valued in excess of $50,000 for customers located
outside the State of Arkansas. Roadway Express, Inc.,
operating from a principal place of business at Akron,
Ohio, annually performs services valued in excess of
$50,000 for customers located outside the State of Ohio.
Respondent admits in its answer, and I find, that the
foregoing employers are engaged in commerce or in an
industry affecting commerce within the meaning of Section
2(6) and (7) of the Act. I further find, as the answer admits,
that the Respondent is now, and at all material times has
been, a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES;
DISCUSSION; CONCLUSIONS
In Dairylea Cooperative, Inc., 219 NLRB 656 (1975), the
Board considered the validity, under Section 8(a)(3) and
(1), and Section 8(b)(2) and (IXA), of a clause in a
collective-bargaining agreement which awarded "super
seniority" to union stewards so as to provide artificial
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preference for such stewards over other rank-and-file
employees with respect to job rights and benefits. Conclud-
ing that the clause had an "inherent tendency . . . to
discriminate against employees for union-related reasons,
and thereby to restrain and coerce employees with respect
to the exercise of their rights protected by Section 7 of the
Act," the Board held that "super seniority clauses which
are not on their face limited to layoff and recall are
presumptively unlawful, and that the burden of rebutting
that presumption (i.e., establishing justification) rests on
the shoulders of the party asserting their legality." In
creating an exception for the purposes of steward layoff
and recall, the Board declared that the "lawfulness of such
restricted super seniority is . . . based on the ground that it
furthers the effective administration of bargaining agree-
ments on the plant level by encouraging the continued
presence of the steward on the job," thereby resulting in "a
more general benefit accorded all employees."
The Court of Appeals for the Second Circuit enforced
the Board's Dairylea decision, holding that the Board
reasonably inferred that the rewards held out by steward
superseniority tended to encourage employees to be
"good" union members and that unions would tend to
appoint only "good" union members as stewards. Accord-
ingly, the court found that the Board acted within its
authority in concluding that, by maintaining such a clause,
the Union caused the employer to discriminate against
employees, engendering the "encourage[ment] [of] mem-
bership" prohibited by Section 8(a)(3), and thereby
violated Section 8(b)(2). The court noted that encourage-
ment of membership does not, per se, establish a violation.
Echoing the Board's conclusion that superseniority gives
rise to a rebuttable presumption of illegality, the court,
citing N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34,
(1967), stated that the Union "will . . . prevail by coming
forward with evidence of legitimate and substantial
business justifications for the clause." N.L.R.B. v. Milk
Drivers & Dairy Employees, Local 338, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers ofAmerica, 531 F.2d 1162 (C.A. 2, 1976).'
In the present case, the complaint alleges that since
March 18, 1975, Respondent has, pursuant to a collective-
bargaining agreement with three named employers, "main-
tained and enforced clauses giving Respondent's stewards
super seniority regarding terms and conditions of employ-
ment in addition to layoff and recall rights," and, by so
doing, has violated Section 8(b)(1)(A) and (2). The record
shows that Respondent and a number of employers were
parties to the National Master Freight Agreement and a
supplemental agreement, the Central States Area Local
Cartage Agreement, both effective July i, 1973, and
expiring March 31, 1976, which provided, in Article 43,
Section 1, of the supplemental agreement: "Stewards shall
be granted super-seniority for all purposes, including lay-
off, rehire, and job preference if requested by the Local
Union within sixty (60) days after the effective date of this
I Holding that the Board's order could be sustained under Sec. 8(bX2),
the court deemed it unnecessary to determine the propriety of the Board's
finding of an 8(bXIXA) violation. Id. at fn. 3. The court further expressly
noted that the approval given by the Board to the use of steward
superseniority for purposes of layoff and recall was not before it for review.
Id at fn. 7.
Agreement .... The record further shows that on
August 24, 1973, Respondent duly sent letters to two of the
three employers referred to in the complaint, notifying the
employers of the appointment of stewards "in accordance
with ... Article 43 of the ... Central States Supplemental
Agreement."
Although the complaint itself specifies no instances of
enforcement of the superseniority clause, the General
Counsel adduced the following evidence at the hearing.
John Starchman is Respondent's appointed steward at
Campbell "66" Express, a local cartage firm in Joplin,
Missouri. Starchman is ranked Ist on the seniority list of 25
drivers by virtue of his position with the Union; by natural
seniority, he would rank 13th. Annually, Campbell posts all
jobs for bidding. The employees bid on the jobs, which
have varying hours and routes, according to seniority.2
In July 1975, the annual bidding for routes was held, and
Starchman, given first choice, selected a 7 a.m. to 3:30 p.m.
out-of-town run, which takes him to Missouri, Oklahoma,
Kansas, and "anything beyond that." According to
Terminal Manager Graves, Starchman usually leaves the
terminal before Graves arrives in the moming,3 but when
Starchman returns at 3:30 p.m., he can then consult Graves
about problems. Starchman could have bid on other, local,
routes, which would have brought him to the terminal
"maybe a little more" than his present out-of-town route.
The remaining routes begin anywhere from 3 a.m. to 3 p.m.
Starchman testified that he believed his 7 to 3:30 shift was
the best choice to "handle complaints of the employees and
if necessary to file a grievance or whatever," and that he
received no personal benefit from the shift he selected. The
list of routes shows no other shift which coincides with
Starchman's and no other shift which would put another
driver at the terminal shortly prior to Starchman's
departure time or shortly before or after his return.
Starchman has been a steward for some 22-23 years;
while he has had his present route for 10 years, prior to that
time, and while serving as a steward, he had selected routes
beginning as early as 5:30 a.m. He testified that although
an 8 to 4:30 shift would give him "U j]ust about as much"
access to the terminal manager, it would to some extent
narrow the margin of time available to him for visiting the
union hall, which he does two or three times a month. The
union hall, which is located 2-1/2 to 3 miles from the
terminal, closes at 5 p.m. Starchman conceded that he
could still get to the union hall before it closed if his shift
terminated at 4:30 rather than 3:30; he stated, however,
somewhat illogically, that "lots of time they are out on
business and if I get off earlier I can sit and wait until
somebody comes in," Starchman testified that his employer
did not permit him to transact union business at the hall
during working hours.
James Greenlee, Respondent's steward at the Joplin
terminal of Jones Truck Lines, Inc., whose actual seniority
is inferior to that of II other drivers, also was given first
2 Because of the method of "bidding"-the most senior employee signs
off on his preferred assignment first, then the next senior, and so on-there
is no "bidding" in the common acceptation of that term. It would be
pointless for an employee to write his name in the space for a job which the
steward or another more senior employee has already "bid."
3 Starchman testified to the contrary. I would credit Graves.
852
GENERAL DRIVERS AND HELPERS LOCAL UNION NO. 823
choice of a route in 1975 because of his contractual
advantage.4 Unlike Starchman, he selected a local route.
Although he could have chosen an assignment ending at
3:30 p.m. as Starchman did, he opted instead for an 8 a.m.-
4:30 p.m. schedule. Greenlee testified that he chose the
shift because "[tjhese are actually the best hours that I
could represent, you know, the company and the employ-
ees in my services as steward. It gives me availability for all
the workers plus the company because the manager comes
on at 8 o'clock, I go to work at 8 o'clock and at those hours
I can see all my bid men either in the morning or the
afternoon." The record does not appear to support these
assertions. The branch manager for Jones, Thomas Boone,
to whom Greenlee would take problems, credibly testified
that his own hours varied so erratically as to be incapable
of categorization. The list of bid jobs in evidence shows
that of the 23 routes, only 7 others coincide with Greenlee's
hours of 8 to 4:30, and that the hours of the remaining
routes make it quite unlikely that the employees would be
at the terminal when Greenlee arrives there around 8 or
returns there at 4:30.
Greenlee further testified that he chose the same route
prior to his becoming a steward in 1973, that he had come
to know the people to whom he makes deliveries, and that
he thought that his predecessor, who served as a steward
for some 8 years, had selected for himself a route beginning
at 7 a.m. It appears from the list of jobs in evidence that
three other routes, the hours of which coincide with those
of Greenlee's, are similarly available within the city. He
testified that he chose the route prior to becoming steward
because it was better for "my personal benefit" than the
others then available to him on a natural seniority basis.
While Greenlee also made reference to the business hours
of the union hall, he testified that his employer, in
contradistinction to Starchman's employer, permitted him
to make business calls at the hall, which is located on his
route, during working hours.
The third instance of enforcement of the clause pertained
to the preparation of the 1976 vacation schedule at Jones
Truck Lines. In January 1976, a list was posted at Jones'
terminal so that the drivers could select their vacation
periods for the coming year. Greenlee was given first
choice because of his contractual seniority. He is entitled to
2 weeks' vacation; he chose to split his vacation, selecting
the second week in June and the second week in
November. Greenlee's chosen week in June is indefeasible
by other employees.5 It appears, however, that the
employer would allow two other employees to be on
vacation during that same week in June.
4 The assignment became effective June 30.
5 Under Jones' application of the contract. had Greenlee decided to take
all of his vacation in successive weeks in June, that choice apparently also
would have been unchallengeable by other employees. However, the fact
that he is splitting his vacation means, according to the accepted
construction of the contract, that his superseniority does not prevail as to
the November choice; as to the latter, another employee with greater natural
seniority could win out.
6 In Dairylea, fn. 4, the Board noted that there was no showing that the
steward's larger income derived from the awarded route and stated that its
decision "turns on the seniority preference accorded union stewards in
seeking employment benefits and not on whether such benefits once
acquired can necessarily be described in some objective sense as supenor to
Greenlee testified that he selected the second week in
June for vacation because most of the men will have been
called in from layoff status at that time, and there will be
no need for a steward to be present to oversee the proper
recall of laid-off employees, as there would be during the
commencement of the busy season, when employees are
being recalled. He later confusingly testified that in 1975 it
was not until the "last part of July" that a full complement
was working; then that, in fact, there is generally a
complete work force between the first of June and the last
of August; and then, apparently, that he does not think
that the presently laid-off employees will be fully recalled
in 1976 until July. The latter testimony makes inexplicable
his choice of June as the time when he will least be needed:
and if he was selecting his vacation period solely out of
concern for not wanting to be absent during the layoff
period, he failed to explain why he split his vacation,
preferring to take I week in November, which would
indicate that he also would not be needed then.
Respondent argues that, since the record does not show
that any other employee desired the work assignments
chosen by Starchman and Greenlee or the vacation week in
June selected by Greenlee, no basis exists for finding a
violation. While it is true that Dairylea involved, inter alia,
an instance of the application of the superseniority clause
in which a steward was assigned a route sought by the
competing bid of an employee with greater real seniority,
such proof is not prerequisite to a holding that the clause is
invalid. According first choice to one employee over others
on the basis of superseniority itself works a discrimination,
and, plainly, the tendency of such a preference would be to
restrain employees in their decision not to be "good" union
members.6
The presumptively unlawful character of the preference
given stewards Starchman and Greenlee in the matter of
job assignments and vacation choice is established by
Dairylea. The question presented is whether Respondent
has adequately rebutted the presumption of unlawfulness.
In its Dairylea decision, the court of appeals pointed out
that, under N. LR.B. v. Great Dane Trailers, supra, the
proponent of the provision must come forward with
"evidence of legitimate and substantial business justifica-
tions for the clause" in order to do so.7
It should be noted that the court spoke of justifying "the
clause," and the Board similarly referred to the burden of
establishing "justification" for "super seniority clauses
which are . . . presumptively unlawful." The court also
mentioned that the parties in Dairylea had waived a
proffered hearing on the ground that "there was no
evidence available concerning the intent underlying the
the benefits the steward had but for his senionty preference." The Board
also issued a broad order restraining the union respondent from "maintain-
ing, enforcing, or otherwise giving effect" to the supersenionty clause "with
respect to terms and conditions of employment other than layoff and
recall," even though the only litigated instance of application of the clause
involved one award of a route to a steward. The Board's injunction in
Dairylea further prohibits the Union from enforcing such clauses as they
pertain to parties in interest not named as Respondents.
7 While the Board did not cite Great Dane Trailers in its decision, it
inferentially intended to incorporate the Great Dane Trailers standard by its
vanous references to the need for a showing of "justification." "necessity or
justification." and "proper justification." in order to rebut the presumption
of illegality.
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
original adoption of the provision in 1937." In the instant
case, Respondent has not attempted to justify the clause or
its particular applications by resort to negotiating history
and contractual intent. Rather, it offered the testimony of
stewards to explain why, in the three instances of the
exercise of superseniority adduced by General Counsel,
they chose as they did, in an effort to show, as Respon-
dent's brief states, that "the criteria used in making their
particular selection had nothing to do with any personal
benefit to themselves, but said selections were predicated
on factors related to servicing and administering the labor
contract in a manner that would be in the best interests of
all parties."
The reasons why these stewards made their choices do
not seem particularly relevant, except insofar as their
professed reasons illuminate the nature of the problems
involved. The Board held in Dairylea that the contractual
award ofjob-related benefits to stewards inexorably tended
to encourage "good" union membership of employees who
are statutorily guaranteed a right to choose to refrain from
being "good" members. That prohibited effect, however,
could be legally justified (although not necessarily erased)
by a showing that the favoritism toward stewards, as in the
matter of superseniority for layoff and recall, has a "proper
justification." Whether a union can justify the existence of
the clause, which is what gives rise to the pressure to be a
"good" member, by showing that a particular steward, in a
specific instance, exercised it for the greater good, seems
seriously open to question.8
Here there is no direct evidence as to why the parties to
the agreement thought superseniority to be necessary.
However, the Board's declaration in Dairylea that super-
seniority for layoff and recall was justified also was not
based on any specific evidence, and was in fact, as the
court noted, not strictly before the Board for decision.
Nonetheless, the Board unequivocally announced that such
favoritism is, as a matter of law, unexceptionable: "The
lawfulness of such restricted super seniority is . . . based
on the ground that it furthers the effective 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
redounds in its effects to the benefit of all unit employees."
Given the presumptive illegality of steward superseniori-
ty in areas other than layoff and recall, and, in the Board's
words, "the inherent tendency of super seniority clauses to
discriminate against employees for union-related reasons, it
does not seem a sufficient justification to show that a
steward in fact used his contractual advantage for "the
benefit of all unit employees." Superior steward seniority
for layoff and recall purposes works in a predictable,
cabined, and narrowly defined manner: the steward is the
last to go and the first to be recalled, and the Board has
seemingly evaluated that preference as being "to the
benefit of all unit employees" in all circumstances, without
further inquiry. Affording stewards a similar preference in
other aspects of the employment setting, with discretionary
latitude for determining whether to benefit the unit
employees or themselves in exercising their options, makes
n Permitting such justification for each and ever), exercise of the
superseniority prerogative would likely give rise to a rash of litigation.
it impossible to predict that the operation of the clause will
"redound in its effects to the benefit of all unit employees."
As noted, the requirement for rebutting the presumption
of illegality is "evidence of legitimate and substantial
business justifications for the clause." It is not unreason-
able to argue that, in given situations, the desiderata of
having a steward at work at times when his services are
most available to other employees, or of his having a route
which gives him access to the union hall, "redound ... to
the benefit of all unit employees," and might further
constitute "legitimate and substantial" justifications for a
clause which allows the steward to choose his work
assignment and vacation period in a manner that permits
him to maximize his usefulness. One problem with this
argument is that there is no evidence that the far-reaching
superseniority clause here, giving stewards ranking seniori-
ty "for all purposes," was intended to achieve that result.
The court in Great Dane Trailers, Inc., supra, cautioned us
that the court of appeals in that case had acted erroneously
when, in the absence of "evidence of legitimate motives,"
the lower court "proceeded nonetheless to speculate upon
what might have motivated the company." 388 U.S. at 34,
35.
However, assuming arguendo the propriety of such
speculation here, while the superior right of a steward to
select his job preference and vacation time might indeed, as
the Board said in Dairylea of superseniority for layoff and
recall, "further the effective administration of bargaining
agreements," that prophecy cannot be made with the same
certitude about choice of job assignment and vacation as it
can about layoff and recall. The question is whether the
possibility that stewards will exercise their contractual
discretion in a manner which "redounds ... to the benefit
of all unit employees" constitutes a "legitimate and
substantial"justification for the provision. In Lewis Lane v.
N.L.R.B., 418 F.2d 1208, 1211 (C.A.D.C., 1969), the court
said:
Perhaps the most significant part of this test is the
Court's requirement that the reasons advanced be
substantial. Apparently the employer must demonstrate
that his interest in pursuing the conduct at least
balances the harm inflicted on the rights of the
employees.
There is no showing here of such a "substantial"
justification for the steward's unfettered preference with
regard to job assignments and vacations. While a steward
might conscientiously attempt to exercise that preference in
a manner benefiting the unit employees, he also might not.
Furthermore, the fact is that, in the present circumstances,
where the unit employees are dispersed throughout the
working day and are never present in force at the terminals
at any given time, almost any route chosen by the steward
could be equally defended as one favorable to the
promotion of the steward's function. The same evaluation
applies, to a more limited degree, to the choice of a
vacation. If, in a given case, there are particular times,
routes, and vacation periods which are most advantageous
854
GENERAL DRIVERS AND HELPERS LOCAL UNION NO. 823
to the performance of a steward's duties, the contracting
parties could conceivably strike a bargain that stewards
should have priority for them, and their reasons for doing
so might withstand scrutiny. But where an agreement
affords plenary discretion to a steward to choose his terms
of employment on whatever basis appeals to him, the
temptation to be a "good" union member in order to
"acquire the broad benefit preference provided by the
super seniority clause" (Dairylea, supra) seems undeniably
effective and too broad guaged to be justified by a claim
that the steward may choose so as to benefit all unit
employees.
In the present case, there appears to be no route at either
the Campbell terminal or the Jones terminal which so
coincides with other routes as to permit the steward to be
available to a truly significant number of employees either
shortly before he begins work or shortly after the end of his
day. Many of the routes, and not just the ones selected,
would give the steward access to the respective terminal
managers at their commencement or termination. At
Campbell, of the 17 existing routes, at least 12 of them
begin or end at such times as to afford comfortable access
to the union hall during its business hours; 9 this appears to
be true of all 23 routes at Jones Truck Lines.
It should further be noted that stewards Greenlee and
Starchman chose routes beginning at different times; that
Starchman selected an out-of-town run, rather than a local
one which would have brought him to the terminal "maybe
a little more"; that, in the past, and while serving as a
steward, Starchman had chosen routes composed of
different hours than his present one; that the route selected
by Greenlee in 1975 was the same familiar one he had
chosen prior to becoming a steward; and that Greenlee,
unlike Starchman, is permitted to visit the union hall
during working hours. I further find that the evidence
before me is too unspecific and uncertain to support a
conclusion that permitting a steward primacy in selection
of a vacation period is of any real consequence in the
performance of his duties. Accordingly, even were I to hold
that specific circumstances could carry the day, I would
find on this record that there were neither "sufficient"
justifications for the existence of the right to choose nor for
the choices made.'t
In view of the foregoing, I conclude that Respondent has
failed to present "legitimate and substantial" justifications
for the superseniority clause as it applies to terms and
conditions of employment other than layoff and recall and,
I Greenlee testified that the hall is open from 8 a.m. to 5 p.m.
in If the Board were to apply the Dairylea justification requirement with
the liberality contended for by Respondent that the stewards gave the
reasons for their choices and that there is no demonstration by General
Counsel that they denved any meaningful benefit therefrom-it would
probably, for all intents and purposes, be validating all such preferences in
future cases, since most such choices can be rationalized in some way. It
seems to me that the Board, in Dairylea, meant to require more justification
for a broad superseniority clause than has been presented in this case.
" The contract upon which this action was based expired in March 1976.
The complaint refers not only to Jones and Campbell, but also to the
relationship between Respondent and Roadway Express, Inc.: no evidence
was adduced as to the operation of the clause in the latter relationship, not
even as to whether a steward was appointed there, and General Counsel
requests no specific relief as to Roadway.
12 As to the latter, there was no evidence that operation of the
superseniority clause actually effected a preference, since the bidding on
accordingly, that by maintaining and enforcing the clauses,
Respondent has violated Section 8(b)(2) and (I)(A) of the
Act.
General Counsel requests that Respondent be directed
"to cease enforcement and maintenance of collective
bargaining provisions which accord super seniority with
respect to terms and conditions of employment other than
layoff and recall . . in any subsequent collective-bargain-
ing agreement between Respondent and Jones and Camp-
bell."" General Counsel thus asks for a broad order
touching all aspects of the superseniority clause. While the
complaint alleges, without limitation, that Respondent
violated the Act by "maintainling] and enforc[ing] clauses
giving Respondent's stewards super seniority regarding
terms and conditions of employment in addition to layoff
and recall rights," General Counsel only presented evi-
dence in two areas-job and vacation preferences.i 2
Since the Board held in Dairylea that superseniority is
only presumptively unlawful, and that "proper justification
may . . . be forthcoming in some future case involving
particular circumstances calling for steward super seniority
with respect to terms and conditions of employment other
than layoff and recall," one might initially be hesitant to
say that the entire clause may be condemned out of hand,
in all possible aspecs, without the Respondent being put
on more definite notice of the other areas of the contract in
which superseniority is deemed objectionable, so that it
might attempt to justify such other kinds of preferences.
However, the Board rejected such an approach in Dairylea.
The complaint there alleged that the entire clause was
unlawful, as well as one specified application of it, and the
Board, after giving the respondent union an opportunity to
justify the clause, issued a broad order against the union,
prohibiting it from maintaining and enforcing the super-
seniority clause "with respect to terms and conditions of
employment other than layoff and recall," which order ran
not only to the clause contained in the contract between
the respondent union and the respondent employer, but
also to similar clauses contained in 7 other bargaining
agreements between respondent union and 18 other
employers, named in the proceeding only as parties in
interest.13 The court of appeals enforced the Board's order
in toto.
Accordingly, Respondent having been on notice of the
sweep of the Board's order in Dairylea, it should have
equally been on notice of the burden thrust upon it by the
vacations at Jones had just begun in the month preceding the heanng. and
only three employees had bid at the time of the hearing; any number of
circumstances may change the situation before the 1976 vacation penod
actually begins.
i3 Contrary to Respondent's contention, I do not see how the failure of
the complaint in this case to name Jones and Campbell as parties to the
contract, a procedure prescribed by the General Counsel's field manual,
gives rise to the inference that "the legality of the labor contract providing
for super seniority is not itself what is in issue in these proceedings." The
complaint is clear enough on that point. Furthermore, while Jones and
Campbell probably should have been named as parties to the contract. it
seems quite unlikely that any prejudice resulted from that omission: their
terminal managers testified at the hearing, the firms undoubtedly were on
notice that the legality of their contracts was being contested. and they made
no effort to intervene. Furthermore, as General Counsel points out. the
contractual superseniority provision is triggered only at the Respondent's
option: it is neither a contract right nor a privilege of the employer parties.
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present complaint. In any event, I am constrained by the
Board's action in Dairylea to follow a similar course here.' 4
CONCLUSIONS OF LAW
1. Campbell "66" Express, Inc., and Jones Truck Lines,
Inc., are employers engaged in commerce or in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the National Labor Relations Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining and enforcing a clause in its
collective-bargaining agreements with the aforenamed
employers according union stewards superseniority for
terms and conditions of employment not limited to layoff
and recall, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(b)(2)
and (I)(A) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action to remedy
the unfair labor practices and to effectuate the policies of
the Act.
I shall recommend that Respondent cease and desist
from maintaining and enforcing any steward superseniority
clause which affords to stewards of Respondent superior
seniority with respect to terms and conditions of employ-
ment other than layoff and recall.
Since the record shows that the route bidding at
Campbell and Jones was held in June and July 1975, and
that the bidding is done annually, I see no point at this late
date in recommending that the 1975 bidding be set aside.
Since summer is upon us, and vacation plans may have
been already made by the employees, I also see no purpose
in ordering nullification of the vacation bidding which
probably has been completed at Jones. General Counsel
has asked for no such remedy; he requests only a cease-
and-desist order and, as indicated, asks that such order
only address itself to the relationship between Respondent
and Campbell and Jones. I shall limit my recommended
Order accordingly.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
14 Respondent's contention that the record tails to show that, in the three
instances litigated, the employers and the employees were not simply acting
voluntanly in bestowing first choice upon the stewards is acknowledged. I
infer from this record, with some confidence, that the bidding was done
under compulsion of the contract.
i1 In the esent 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.
ORDER 15
Respondent General Drivers and Helpers Local Union
No. 823, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving effect to
collective-bargaining agreements with Campbell "66"
Express, Inc., and Jones Truck Lines, Inc., which accord to
union stewards superior seniority with respect to terms and
conditions of employment other than layoff and recall.
(b) Causing or attempting to cause Campbell "66"
Express, Inc., or Jones Truck Lines, Inc., to discriminate
against employees in violation of Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing
the employees of Campbell "66" Express, Inc., and Jones
Truck Lines, Inc., in the exercise of their rights protected
by Section 7 of the Act.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the policies of the
Act:
(a) If Respondent presently has a collective-bargaining
agreement with Campbell "66" Express, Inc., and/or Jones
Truck Lines, Inc., which makes provision for superseniori-
ty for its stewards regarding terms and conditions of
employment in addition to layoff and recall rights, notify
said employers that it does not intend that the provisions
will be applied so as to afford superseniority for stewards
with respect to terms and conditions of employment other
than layoff and recall.
(b) Post at its office and meeting halls used or frequented
by its members and employees it represents at Campbell
"66" Express, Inc., and Jones Truck Lines, Inc., copies of
the attached notice marked "Appendix."16 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by its representative,
shall be posted by Respondent immediately upon receipt
thereof, and shall be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to the above-described members and
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for Region 17 signed
copies of the attached notice marked "Appendix," on
forms provided by the Regional Director, for posting by
Campbell "66" Express, Inc., and Jones Truck Lines, Inc.,
at their places of business where their employees are
represented by Respondent and in places where notices to
employees are customarily posted, if the employers are
willing to do so. Copies of said notice, after being duly
signed by a representative of Respondent, shall be
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.
mk In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board," shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
856
GENERAL DRIVERS AND HELPERS LOCAL UNION NO. 823
immediately returned to the Regional Director for such
posting.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an opportunity to
present evidence, the National Labor Relations Board has
found that we have violated the National Labor Relations
Act and has ordered us to post this notice.
WE WILL NOT maintain and enforce any agreement
with Campbell "66" Express, Inc., or Jones Truck
Lines, Inc., giving our stewards top seniority regardless
of the length of their employment, with respect to an
assignment of contract benefits or other terms and
conditions of employment, except for layoff and recall.
WE WILL NOT cause or attempt to cause the
foregoing employers to discriminate against employees
by preferring a union steward in regard to any term or
condition of employment, other than layoff and recall,
on the basis of seniority when such steward or other
representative does not in fact have top seniority in
terms of length of employment.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights
protected by Section 7 of the Act.
GENERAL DRIVERS AND
HELPERS LOCAL UNION
No. 823, AFFILIATED WITH
THE INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
857