Union Carbide Corp.

National Labor Relations Board - Board Decisions

Apr 5, 1977

228 N.L.R.B. 1152 (N.L.R.B. 1977)

1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Carbide Corporation Chemical and Plastics
Operations Division and Local 8-891, Oil, Chemi-
cal and Atomic Workers International Union,
AFL-CIO. Case 22-CA-6837
April 5, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on March 7, 1976, by Local 8-
891, Oil, Chemical and Atomic Workers Internation-
al Union, AFL-CIO, herein called the Union, the
Regional Director for Region 22 of the National
Labor Relations Board, acting on behalf of the
General Counsel of the Board, issued a complaint
against the Respondent, Union Carbide Corporation
Chemical and Plastics Operations Division alleging
that Respondent had violated Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended, by
unilaterally modifying the collective-bargaining
agreement then in effect between Respondent and
the Union. A hearing before an Administrative Law
Judge was scheduled for June 14, 1976, and was
subsequently postponed. On April 30, 1976, Respon-
dent filed its answer, admitting certain allegations of
the complaint, and denying others, including those
charging them with the commission of unfair labor
practices.
On June 30, 1976, prior to the hearing, the Union,
the Respondent, and the General Counsel entered
into a stipulation, whereby it was agreed that the
facts contained therein and the exhibits attached
thereto, including the charge, complaint and notice
of hearing, and answer, shall constitute the entire
record in this case. The parties agreed to waive the
making of the findings of fact, conclusions of law,
and the issuance of a decision by the Administrative
Law Judge. The parties petitioned the Board to
exercise its power under Section 102.50 of the
Board's Rules and Regulations and transfer these
proceedings to the Board for further action. On
August 3, 1976, the Board issued an Order approving
the stipulation and transferring the proceeding to the
Board. Thereafter, the General Counsel and Respon-
dent filed briefs with Board.
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 entire record in this
case, including the parties' briefs, and makes the
following findings and conclusions:
228 NLRB No. 141
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT COMPANY
The Respondent Company is and has been at all
times material, a corporation organized under the
laws of the State of New York, with its principal
office and place of business in New York and a plant
in Bound Brook, New Jersey. Respondent is now and
has at all material times been engaged in the
manufacture, sale, and distribution of plastics at the
Bound Brook plant, which is the only facility
involved in this proceeding. During recent annual
periods of business, the Company has grossed annual
revenues in excess of $50,000, of which products
valued in excess of $50,000 were shipped from said
Bound Brook plant in interstate commerce directly
to States of the United States other than the State of
New Jersey. Accordingly, we find that Respondent
Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein, Respondent and the
Union have been parties to a collective-bargaining
agreement , which contains , inter alia, the following
provision:
7.07 (A) In case of layoff on account of
reduction in force, elected Union officials (not to
exceed twelve in number) and Union Stewards
with one (1) year or more of Company Service
Credit shall be the last to be laid off.
(B) No member of the Executive Board or
other elected officials (not to exceed twelve in
number as in (A) above) or Union Stewards shall
be transferred, out of their department or craft
group or reassigned off their shift during their
term in office, except with their consent.
(C) A steward who declines an upgrading to a
vacant job on another shift will not incur delay in
consideration for future upgrading.
(D) Seniority provisions as set forth in this
agreement will be waived in the event the Local
Union President (or the Vice-President in the
event the Local Union President is granted a
year's leave of absence), the Chief Steward and
the Recording Secretary who are permanently
assigned to shifts, makes application for a vacant
day job during his/her current term of office. The
UNION CARBIDE CORPORATION
above employee must possess the necessary
qualifications and skills and meet fully all job
requirements to be eligible for the vacancy. One
such application may be made during the current
term of office, and if such application is made and
the job refused, the rights of that individual
regarding this clause will be forfeited for the
balance of the existing labor agreement.
Within fourteen (14) days of the date of
expiration of office, the employee must make
known his/her desire to return to his/her former
job. He/she will then be assigned to the first
available vacancy in his/her former job and shift
and the rights of other individuals to that vacancy
will be waived. If no indication is given to return
to his/her former job within fourteen (14) days,
the employee will be retained in his/her present
position.
On February 26, 1976, and at all times material
since that date, without bargaining with the Union,
Respondent unilaterally refused, and continues to
refuse, to enforce section 7.07(B) of the contractual
provision set forth above,' on the ground that said
provision is in conflict with the Board's decision in
Dairylea Cooperative, Inc., 219 NLRB 656 (1975).
Respondent argues that section 7.07 (B), which
grants union stewards superseniority for the purpose
of maintaining their department or shift when they
would otherwise be transferred, is the type of job-
related preference prohibited under Dairylea. Gener-
al Counsel, however, contends that this contractual
provision furthers the effective administration of the
bargaining agreement and is permissible under
Dairylea.
Although the contractual provision provides that
neither elected officials nor stewards are to be
transferred or reassigned without their consent, it
appears, and the complaint, stipulation, and briefs
indicate, that the section is applied only to elected
union stewards.
According to the stipulation, the Union maintains
26 elected and 5 2 appointed shop stewards at the
Bound Brook plant. Their major responsibility is to
process grievances and the Union attempts to
maintain a steward for each shift in each department.
Section 8.0 (B) of the collective-bargaining agree-
ment provides in relevant part:
The number of such stewards shall not exceed 1
for every 30 employees in the plant, but not more
than 1 steward for every 35 employees or less per
shift in any one department. Stewards shall
' The other subsections of clause 7.07 are not in issue in this case.
s These five are not covered by sec. 7.07(B).
3 According to the stipulation , as a matter of practice, stewards have
1153
handle grievances only within their respective
jurisdictions.
Because the collective-bargaining agreement limits
the number of stewards the Union may maintain at
one time, departments and shifts have been com-
bined into a single jurisdiction, although the Union
generally attempts to maintain a steward in each
department on each shift. The Union alone decides
which departments and shifts to combine.
As section 8.01(B) provides, stewards are to handle
grievances only within their department and shift.3
Because of a longstanding union practice, which
requires that stewards forfeit their positions when
they are transferred, the ability to maintain their
jurisdictions is necessary if they are to continue to
represent the employees in their jurisdictions.
In Dairylea Cooperative, Inc., 219 NLRB 656, enfd.
sub nom. N.L.R.B. v. Milk Drivers & Dairy Employ-
ees, Local 338, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, 531 F.2d 1162 (C.A. 2, 1976), the Board
held, inter alia, that an employer violated Section
8(a)(1) and (3) of the Act by according union
stewards superseniority for purposes other than
layoff and recall. The clause in Dairylea gave
stewards seniority with respect to "all contractual
benefits where seniority is a consideration," includ-
ing preference in the assignment of overtime, in the
selection of vacations, and in the assignment of
routes and other positions.
The Board reasoned that job rights and benefits
which do not further the administration of the
bargaining agreement may not be tied to union
activities without impermissibly joining that which
the Act seeks to separate.
In finding the clause unlawful in Dairylea, the
Board stated that:
it is well established that steward super seniority
limited to layoff and recall is proper .... it
furthers the effective administration of bargaining
agreements on the plant level by encouraging the
continued presence of the steward on the job. [219
NLRB at 658.)
As regards superseniority for purposes other than
layoff and recall, the Board in Dairylea said:
there is no occasion here for finding super
seniority-even that going beyond layoff and
recall-to be per se unlawful. The issue ultimately
is one of justification. [219 NLRB at 658.]
processed grievances from outside their department and shift when the
Union and Respondent find it more convenient.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus the Board recognized superseniority for layoff
and recall to be proper, even though it may create a
benefit for certain employees. The burden of estab-
lishing the justification to rebut the presumption of
illegality pertaining to benefits beyond layoff and
recall "rests on the party asserting their legality."
(The General Counsel, in this case.)
Here the General Counsel has established justifica-
tion for the provision at issue, sufficient to rebut the
Dairylea presumption of illegality. We find, there-
fore, that Respondent's failure to enforce the
provision violated Section 8(a)(5) and (1) of the Act .4
General Counsel argues that the provision granting
union stewards superseniority in order to maintain
their departments and shifts is justified, particularly
when considered in light of the union rule requiring
stewards who leave their jurisdiction to forfeit their
stewardship and in view of the contractual restric-
tions contained in section 8.01(B) of the collective-
bargaining agreement . We agree with this argument
and find support for our position in the stipulation
itself, wherein three different ways in which the
provision provides for more effective representation
of all employees are set out:
(a) . . . the incumbent stewards are more
familiar with the collective bargaining contract,
both substantially and procedurally, than are
non-steward employees.
(b) ... the incumbent stewards are more
familiar with pending grievances, differing de-
partmental operations, and with certain proce-
dures that vary per department, e.g. overtime, in
effect in particular departments than are stewards
from different departments or non-steward em-
ployees.
(c) . . . the vacancy created by the loss of an
elected steward may go unfilled and therefore
mean that employees in a particular department
and shift, not having a steward in that department
and shift, must utilize a steward from a different
department or shift.
General Counsel contends that the importance of
maintaining the same union steward has been
consistently recognized as a legitimate justification
for superseniority. The Second Circuit, in enforcing
Dairylea, characterized the General Counsel's posi-
tion therein thusly:
The General Counsel did not challenge that
portion of the"superseniority" provisions protect-
ing stewards from layoff because, in his opinion,
that preference had a legitimate and substantial
For the reasons cited in his dissenting opinion in Dairylea, Member
Fanning agrees that sec. 7.07(B) of the collective -bargaining agreement is
lawful and that Respondent violated the Act by failing to enforce the
justification: a union may find itself powerless to
maintain the same steward on the job....
[N.L.RB. v. Milk Drivers & Dairy Employees
Local 338, 531 F.2d 1162 at fn. 7.]
This need for continuity on the job was recognized
by the Supreme Court in Aeronautical Industrial
District Lodge 727 v. Campbell, et al., 337 U.S. 521
(1949):
One of the safeguards insisted upon by unions for
the effective functioning of collective bargaining
is continuity in office for its shop stewards or
union chairmen. . . . A labor agreement is a
code for the government of an industrial enter-
prise and, like all government, ultimately depends
for its effectiveness on the quality of enforcement
of its code . Because a labor agreement assumes
the proper adjustment of grievances at their
source, the union chairmen play a very important
role in the whole process of collective bargaining.
Therefore it is deemed highly desirable that union
chairmen have the authority and skill which are
derived from continuity in office. A provision for
the retention of union chairmen beyond the
routine requirements of seniority is not at all
uncommon and surely ought not to be deemed
arbitrary or discriminatory. [337 U.S. at 527-528.1
We believe that the continuous presence of the
steward on the job "redounds in its effect to the
benefit of all," particularly in view of the fact that the
Union generally attempts to maintain a steward in
each department on each shift. The fact that some
job-related benefits may accrue to stewards must be
weighed against the advantages flowing to all
employees. The clause at issue in Dairylea purported
to give stewards seniority with respect to "all
contractual benefits," while here the provision
concerns only the steward's ability to maintain his or
her present position.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with Respondent
Company's operations described in section I, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
provision. However, since he does not agree with the principles enunciated
in Dairylea, Member Fanning finds it unnecessary to distinguish Dairylea or
to find that the Dairylea presumption of illegality has been rebutted herein.
UNION CARBIDE CORPORATION 1155
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
We have found that the steward superseniority
clause here in dispute is lawful and we shall therefore
order that Respondent cease and desist from refusing
to enforce the clause in its bargaining agreement with
the Union.
CONCLUSIONS OF LAW
1. The Respondent, Union Carbide Corporation
Chemical Plastics Operations Division, is an Em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, Local 8-891, Oil, Chemical and
Atomic Workers International Union, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. Commencing on about February 26, 1976, and
at all times material since that date, the Respondent,
in violation of Section 8(a)(5) of the Act, has refused
to bargain collectively with the Union by unilaterally
refusing to enforce section 7.07(B) of its collective-
bargaining agreement with the Union.
4. Because of the aforesaid conduct, the Respon-
dent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by
Section 7 of the Act, and has thereby engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
(a) Maintain and enforce all provisions of the
collective-bargaining agreement with the Union.
(b) Post at its Bound Brook, New Jersey, plant
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MURPHY, concurring:
I agree that the decision herein is correct under the
holding of Dairylea Cooperative, Inc., 219 NLRB 656
(1975). However, in addition to the provisions in
issue in Dairylea, I would find presumptively lawful
job retention superseniority clauses for union ste-
wards or officers whose functions relate in general to
furthering the bargaining relationship. Job retention
clauses include layoff, recall, shift assignment, or
retention of the same job or same category of job
during incumbency in such position. Cf. Hospital
Service Plan of New Jersey and Medical-Surgical Plan
of New Jersey, 227 NLRB No. 88 (1977), and Motion
Picture Laboratory Technicians, Local 780, Interna-
tional Alliance of Theatrical Stage Employees, etc.,
AFL-CIO (McGregor-Werner, Inc.), 227 NLRB No.
79 (1977).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Company, Union Carbide Corporation Chemical
and Plastics Operations Division, Bound Brook, New
Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union,
Local 8-891, Oil, Chemical and Atomic Workers
International Union, AFL-CIO, by refusing to
enforce section 7.07(B) of its collective-bargaining
agreement with the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights protected by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL bargain collectively with Local 8-891,
Oil, Chemical and Atomic Workers International
Union, AFL-CIO.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE wn.L no longer refuse to enforce provisions in the exercise of the rights guaranteed them by
of the collective-bargaining agreement with said Section 7 of the Act.
Union. UNION CARBIDE
WE WILL NOT in any like or related manner CORPORATION CHEMICAL
interfere with , restrain, or coerce our employees AND PLASTIC OPERATIONS
DIVISION