United Electrical, Radio and Machine Workers

National Labor Relations Board - Board Decisions

Jun 23, 1977

230 N.L.R.B. 406 (N.L.R.B. 1977)

406 DEClSlONS OF NATIONAL LABOR RELATIONS BOARD
United Electrical, Radio and Machine Workers of
America, Lacal 623 and Anna Mae D'Amico and
Limpco Mfg., Inc., Party to the Contract. Case 6
CB-3520
June 23, 1977
DECISION AND ORDER
On April 21, 1976, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, Respondent United
Electrical, Radio and Machine Workers of America,
Local 623 (hereinafter Local 623) filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to Respondent's exceptions.
The Board has considered the record1 and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The issue presented in this proceeding is whether or
not superseniority for purposes of layoff, which we
found in Dairylea Cooperative Inc.2 could be validly
extended to union stewards, can be appropriate$
provided to union officers who may not have
steward-type functions. The facts are essentially
undisputed. On July 3, 1975, Local 623 invoked the
collective-bargaining agreement's superseniority pro-
vision in order to insure the continued employment
of Patricia Jenkins, the recording secretary, in the
wake of an ecomonic layoff.3 As a result, Charging
Party Anna Mae D'Amico, who had greater seniority
than Jenkins in terms of her date of hire and
continuous service, was laid off. At the time, Local
623, an amalgamated local with 230 to 250 members
which represented employees of 12 different busi-
nesses including Limpco's, was headed by four
officers: president, vice president, financial secretary-
treasurer, and recording secretary Jenkins. Local 623
assigned a chief steward and three shop stewards to
the approximately 38 employees at Limpco, but
Jenkins was the only union officer employed there.4
Upon charges filed by D'Amico, a complaint
issued alleging that Local 623 had violated Section
8(b)(l)(A) and 8(b)(2) of the Act by invoking the
superseniority provision to protect the recording
secretary. At the hearing, the General Counsel did
not coniend that the supirseniority provision wasper
1 Res ondent's request for oral argument is hereby denied as the record
and brieE adequate1 present the issues and positions of the parties.
2 219 NLRB 6 4 (1975). enfd. sub nom Milk Drivers and Doiry
Emplo ees, Local 338, I n r e r ~ r i o ~ l Brotherhood of Teamsrers, Chau eurs,
WarehVowemen and Hebers of America v. N.LR.B.. 531 F.2d ,162 ([A. 2,
14761 .. .-
h e superseniority provision contained in art. XI, sec. 4, of the 1972-75
bareaining a rerment hptw-e- L i m y Mfg., Inc., and Local 623, !n effect
at the time ofthe events gjving rise to the complaint, it is similar to art. XI,
sec 5, of the current bargaining agreement which reads as follows:
230 NLRB No. 59
se unlawful, but rather, that under the principles
established in Dairylea, supra, it is unlawful to extend
superseniority, even in a layoff situation, to individu-
als who are not directly involved in the initiation and
processing of grievances. The General Counsel
argued that, because Local 623 applied the clause to
an officer who had no responsibility for performing
steward-type duties, the invocation of the clause in
this instance went beyond the limits established in
Dairylea and thus the application of the clause to
Jenkins was presumptively invalid. The General
Counsel also argued that Local 623 failed to sustain
its affirmative burden of proving that such use of the
clause was justified.
Local 623 asserted that the superseniority provision
was invoked in a layoff situation, which meets the
Dairylea test of validity. It contended further that the
fact that the provision was applied to a union officer
does not alter the legality of the manner in which the
superseniority clause was applied.
The Administrative Law Judge found that the
superseniority clause had been applied unlawfully to
the recording secretary. The Administrative Law
Judge reasoned that the Board in Dairylea held that
only steward superseniority limited to layoff and
recall situations was valid, but that superseniority
provisions which went beyond layoff and recall were
presumptively invalid. In view of the fact that
superseniority here was extended to officers, as well
as to stewards, it went beyond the limits announced
in Dairylea and therefore it was presumptively
invalid; thus, in order to rebut the presumption of
invalidity, Local 623 had to justify the application of
the clause to recording secretary Jenkins. The
Administrative Law Judge found that any involve-
ment Jenkins may have had with the grievance
process was on a purely voluntary basis and that
such activities were not the function of the recording
secretary. Accordingly, he concluded that Local 623
had failed to prove that the recording secretary
performed any steward-type functions which would
justify her superseniority. Thus, the Administrative
Law Judge found that Local 623 violated Section
8(b)(l)(A) and 8(b)(2) of the Act as the rule in
Daitylea did not apply to the provision of superse-
niority to the recording secretary and Local 623 had
failed to prove an exception.
The highest seniority preference shall be given to Oflicers and Union
Stewards in regard to layoffs provided they are capable of performing
the available work in their unit.
4 On January 22, 1976, Jenkins was elected to a steward position. We
?gee with the Administrative I s w Judge's findings that this E+.--~v?
event does not affect the disposition of the issues in the present proceeding.
I RADIO AND MACHINE WORKERS, LOCAL 623
I In the present case, the Administrative Law Judge uled in essence that whenever a superseniority clause, though properly limited to layoff or recall
kituations, either refers to or applies to a union
'officer, other than a steward, such application of the
I isuperseniority clause is presumptively invalid and the
burden shifts to the respondent to justify its use. In
other words, a superseniority clause which encom-
passes or applies to union oficers as well as stewards,
though limited to layoff and recall, is not presump-
tively valid on its face though a clause with similar
objectives but limited only to stewards would have
presumptive validity.
We disagree with the Administrative Law Judge's
narrow reading of our decision in Dairylea and
specifically reject his view that because the superse-
niority provision was applied to a union officer rather
than to a steward, albeit in a layoff situation, the
provision was presumptively invalid.5
In Dairylea, the Board considered the validity of a
contract provision which accorded stewards superse-
niority not only for layoff and recall purposes but
also for all contractual benefits where seniority was a
consideration. The Board found that the union
violated Section 8(b)(l)(A) and 8(b)(2) of the Act by
maintaining, enforcing, and applying the clause
because of its discriminatory effect in linking such
job benefits to union a~tivities.~ At the same time,
the Board majority was of &he opinion that steward
superseniority limited to layoff and recall had the
salutory effect of furthering the "effective adminis-
(ration of bargaining agreements on the plant level
by encouraging the continued presence of [a] steward
o n the job." Thus, the Board stated that it considered
steward superseniority limited to layoff and recall to
be valid as it served "legitimate statutory purposes"
and benefited all unit employees. However, superse-
niority which was extended to situations beyond
layoff and recall was found to be presumptively
invalid and consequently the party relying on such a
provision had the burden of justifying the validity of
I he seniority provision. In reaching its decision, the
lhirylea majority cited Aeronautical Industrial Dis-
~ricl. Lodge 727 v. Campbell.7 wherein the Supreme
'' Charman Fanning, who dissented from the Dairylea holding that
.~rlwr.wniority for purposes other than layoff or recall is presumptively
~ l ~ \ . ~ l i d . agrees w ~ t h his colleagues that provisions providing superseniority
I ~ M unton oficers are governed by the same considerations as are provisions
l~~t lwllng such seniority for stewards. Although he still adheres to the views
c ~ l v c \ \ e d in his Dairvleo dissent, he agrees that the considerations expressed
( 1 1 r111\ decision demonstrate that the superseniority provisions at issue
I ~ I ~ I I I unno t be found to violate Sec. 2(a)(l) and (3) of the Act.
', Ihe employer, also named as respondent, was found in violation of Sec.
Wt)( I ) : d (3)of the Act.
' 337 U.S. 521, 527 (1949).
' Wr helieve that our dissenting colleagues have too narrowly construed
,I.,. c,! I ,r,. ,,, e Court's decisions in Cumpbell. Admittedly; i r l Gmybeil, the
1 ~ N I I I u.;n called upon to decide only the question as to whether or not the
S V W I I ~~l'\uperscniority for purposes ofjob retention was properly extended
Court upheld a provision in a collective-bargaining
agreement according superseniority to shop stewards
or union chairmen whose validity was challenged
under the seniority provisions of the Selective
Training and Service Act of 1940. The Supreme
Court reasoned that "[olne 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. . . . Because they
are-union chairmen they are not regarded as merely
individual members of the union; they are in a
special position in relation to collective bargaining
for the benefit of the whole union."s
Since our decision in Dairylea focused on steward
superseniority-because that was the type of seniori-
ty provision in dispute-the issue of union officer
superseniority was not specifically addressed. Con-
trary to the Administrative Law Judge, we do not
consider that Daiylea established the principle that
superseniority is presumptively valid only when the
individual involved is engaged in the function of
processing and/or adjusting grievances at the work-
place. In Dairylea, it was determined that a legitimate
statutory purpose of superseniority provisions was
the effective administration of the collective-bargain-
ing agreement on the plant level. And this objective
was served by superseniority provisions limited to
layoff and recall which insured the continued
presence of the employees' bargaining representa-
tives on the job. Thus, Dairylea was not intended to
circumscribe which union representatives could be
recipients of superseniority, but, rather, it articulated
what the appropriate objectives of such provisions
were, in light of the legitimate statutory purpose of
facilitating the effective administration of the collec-
tive-bargaining agreement on the plant level.
In this regard, we do not consider that the
administration of the collective-bargaining agree-
ment is limited solely to grievance processing or
other "steward-type" duties performed at the work-
place.\What is at stake is the effective and efficient
representation of employees by their collective-bar-
gaining representatives. Certainly, the representa-
tional activities carried out by union officials
to union chairmen who process and adjust grievances at the workplace.
However we find nothing in the Court's opinion in Campbell which would
suggest that superseniority can be extended only to those individuals who
are involved in the day-to-day handling and adjustment of grievances.
Rather, we view the Court to have approved superseniority for grievance
adjusters because that was "one way" of safeguarding or ensuring effective
collective bargaining. Thus, the Court determined that grievance adjusters
by their involvement in the enforcement of the collective-bargaining
agreement fuahered the whole process of collective bargaining. According-
ly, it would seem to us that the Court's emphasis was on the total collective-
bargaining process and not just one narrow aspect of it and. consequently,
we interpret Campbell as an endorsement-albeit tacit-of the concept that
superseniority for purposes of jo i terc~ndort may properly ut ehlelded to
those individuals whose official responsibilities bear a direct relationship to
the effective and efficient representation of unit employees.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in the administration of the collective-
bargaining agreement on behalf of employees extend
beyond the narrow confines of grievance processing.
These encompass at the very least a functioning local
to assert the presence of the union on the job. The
Act guarantees employees the right to be so repre-
sented through the collective-bargaining process. In
fact, perhaps the most important union officer, the
president, is usually not involved in grievance
proceedings.9 We shall not therefore presume, as did
the Administrative Law Judge, that union officers,
even though they may not perform steward-type
duties, are not as involved as stewards in the
administration of the collective-bargaining agree-
ment. On the contrary, we believe that, once it has
been initially demonstrated that the official responsi-
bilities of the union officer in question bear a direct
relationship to the effective and efficient representa-
tion of unit employees, then this officerlo is entitled
to the benefit of the same presumption afforded to
union stewards.
Thus, we reject the view that Local 623 had the
burden of justifying the application of the superse-
niority provision to the recording secretary in a
layoff situation, merely because the provision was
applied to an officer rather than a steward. It was
sufficient to show, as Local 623 did, that Jenkins
qualified for the benefit by reason of her role in the
overall administration of the collective-bargaining
agreement. The General Counsel continues to have
the burden of proving afirmatively that the applica-
tion of a superseniority provision to a functional
union officer in a layoff situation is invalid. We find
that the General Counsel has not sustained this
burden in the present case.
The record discloses that Jenkins, as recording
secretary, was a member of the executive board and
received $15 a month for her duties.11 She was the
highest ranking union officer employed at Limpco.
Jenkins was primarily responsible for maintaining
records of membership and executive board meet-
ings, presenting Limpco shop reports at those
meetings when the chief steward was absent and
9 The results of a survey of grievance provisions in 400 representative
collective-bargaining agreements, conducted by the Bureau of National
Affairs, indicate that the union or local president is not a major participant
in grievance proceedings. Only 5 percent of the surveyed contracts provide
that the union president would handle mid-level stages of the grievance
procedure; however, 49 percent of the contracts gave that responsibility to
in-company grievance committees; 34 percent of the contracts gave such
responsibilities to the shop stewards; and 3 percent provided for mid-level
participation by the international representative. Forty percent of the
contracts which contained final-step grievance provisions placed responsi-
bility on international representatives; 28 percent of such contracts gave
final-step grievance responsibility to in-company grievance committees;
whereas in only 7 percent of such contracts did union presidents become
involved in final-step grievances. See Basic Parrerns in union Conrrarrs in
C & ~ L I I V C Burgaining Negoriarion and Conrracts, vol. Z (The Bureau of
National Affairs. Inc., 1976).
lo Should the Board deprive union officers of the protection of
Local 623. Jenkins,
posted nbtices of
material needed by
handling all correspondence for
as well as the chief steward,
membership meetings, procured
stewards, and aided stewards in obtaining reimburse-
ment for their lost time on the job due to their union
duties. Although the recording secretary had no
official duties for handling grievances or participat-
ing on the bargaining committee, Local 623's
president testified that Jenkins participated informal-
ly in processing grievances and assisting stewards in
writing grievances, advised stewards and foremen on
contract interpretation, and handled problems in
general. Jenkins testified that she was asked by the
chief steward to attend shop meetings to help
formulate bargaining ideas, and that during a recent
strike the executive board placed her in charge of
scheduling pickets and handling money for pickets.
The record indicates that if the recording secretary
were laid off and subsequently worked for an
employer who was not a party to the collective-
bargaining agreement the recording secretary would
be required to resign from her office.
It is evident that the official responsibilities of the
recording secretary bear a direct relationship to the
effective and efficient representation of unit employ-
ees both at the plant level and for the entire
amalgamated local. Equally clear is the fact that the
recording secretary participates informally in the
processing of grievances. Our dissenting colleagues,
who would distinguish informal and formal griev-
ance duties, are merely splitting hairs, for we can see
no practical difference between the two in the
representation of unit employees. In this light, we
find that Local 623's actions conformed to the lawful
objective of superseniority provisions-the effectua-
tion of Section 7 rights of employees by assuring
them the continued presence of their representatives
who are charged with effectively and efficiently
representing unit employees.'* Accordingly, we shall
dismiss the complaint in its entirety.
superseniority, it is reasonable to foresee that where, as in the present case,
union officials are elected, seniority may become an overriding issue. For,
the employees may well want to select as their representative someone who
will continue on the job when the job security of bargaining unit employczs
has been threatened by economic layoffs. Thus, the Board's interjection
could result in restricting employee freedom of choice in elections since
seniority of the respective candidates, alone, may play an unduly decisive
pan in the result. " The president was paid $10, whereas the financial secretary-treasurer
was paid $15 a month.
12 Member Murphy agrees with the holding herein. As set forth in her
concurring opinion in Union Carbide Corporation Chemical and Plartics
Operations Division, 228 NLRB 1152 (1977). she wouM find presumptively
lawful job retention superseniority clause, ;cc!.+ng layoff, :c.-:.!L 1x2
assignment, 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.
RADIO AND MACHINE WORKERS, LOCAL 623 409
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBERS JENKINS and PENELLO, dissenting:
By their decision, our colleagues have linked
employee seniority rights to their union activities, for
they have established that union officers have
guaranteed job protection as a fringe benefit for their
union activities. We can think of no greater or more
direct coercion and interference with the Section 7
rights of employees by a labor organization. Accord-
ingly, and in agreement with the Administrative Law
Judge, we would find that Local 623 violated Section
8(b)(l)(A) and 8(b)(2) of the Act by invohng the
superseniority provision to protect the recording
secretary.
To understand the issue presented, we must begin
with the Act's guarantees that employees have the
right to refrain from "any and all" activities on
behalf of a bargaining representative and to be free
from employer acts, even at the behest of their
bargaining representative, to encourage membership
in a labor organization.13 Employees essentially are
to be free from discrimination in employment on the
basis of their union activities, or lack of them. Once
job protection, through "seniority provisions, is
provided for all employees through the bargaining
process, all employees must enjoy that benefit
regardless of the extent of their union activities. As
we recognized in Dairylea, supra, superseniority is
discriminatory by its very nature because it benefits
certain employees over others solely on the basis of
their respective status in a labor organization.
Once a union has become the employees' lawful
bargaining representative and commenced negotia-
tions with the employer, it becomes a simple matter
for the union to acquire job protection rights for its
officials in return for concessions granted to the
employer. All of this is necessarily at the expense of
the individual employee.
In order to justify such discrimination under the
Act, there must be a benefit to all bargaining unit
employees rather than simply to the immediate
beneficiary. In Dairylea, we recognized the validity of
steward superseniority since "it furthers the effective
administration of bargaining agreements on the plant
level by encouraging the continued presence of the
steward on the job." The Board reasoned in Dairylea
that their continued presence on the job enabled
stewards. and all other union representatives in-
volved in grievance adjustment at the point of
employment, to better carry out their representation-
al responsibilities and, as a result, aN unit employees
benefited.
The representational activities which were at stake
in Dairylea and which the Supreme Court addressed
in Campbell, supra, were not, as our colleagues argue,
the whole collective-bargaining process with the
concomitant need for a functioning union organiza-
tion. We see no need now to depart from the view in
Dairylea that "it nevertheless remains the union's
task to build and maintain its own organization."
What our colleagues have accomplished by their
decision is to insure that job benefits and rights are
now tied to political activism in the union. Yet,
Section 7 of the Act is intended to insulate the
employee from precisely this result. This Board
should not be in the business of assuring that a union
has an efficient and effective organization to conduct
collective bargaining where this results in the linkage
of job rights and benefits to union activities. We can
foresee a time when every union member or activist
could be given some ofice their union considers
crucial to the "whole process of collective bargain-
ing" and hence enjoy superseniority. Eventually,
superseniority would benefit only those employees
who curry favor with the union leadership. What
clearer violation of the Act can there be?
The representational responsibilities which were
sanctioned by the Supreme Court in Campbell as the
justification for superseniority are the "proper
adjustment of grievances at their source" or, as we
stated in Dairylea, "the effective administration of
bargaining agreements on the plant level." It is the
processing of grievances and the enforcement of the
collective-bargaining agreement on the job which
facilitates the Section 7 rights of employees. Since
these steward-type functions inure to the benefit of
all employees, the discriminatory effect of superse-
niority is balanced by the facilitation of employee
Section 7 rights. To broaden the proper objective of
superseniority; i.e., to protect the whole process of
collective bargaining-as our colleagues have done-
discriminatorily tips the balance against individual
employees rights. In Dairylea, we circumscribed the
reach of superseniority to layoff and recall, though
we also realized that there may be other purposes of
superseniority which could carry out the lawful
objective of such provisions. This underscores the
view that the only proper objective of superseniority
is to retain those union officials responsible for the
processing of grievances on the job, and whose
presence on the job is therefore required for the
proper performance of this functions.14,
l3 Secs. 7,8(b)(l)(A), 8(b)(2), and 8(aX3). 14 Campbell, svra at 527.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that only superseniority
provisions which accord union officials whose
presence on the job is necessary for the on-the-job
adjustment or settlement of grievances are presump-
tively valid. Thus, the application of a superseniority
provision to the recording secretary whose represen-
tation functions are not related to her presence on
the job is presumptively invalid. And there is nothing
in the record to show that Local 623 has met its
burden of justifying superseniority in this case.
Jenkins had no official responsibility for handling
grievances. Though there is testimony from both
Local 623's president and Jenkins to the effect that
the recording secretary "assisted stewards," such
"assistance" was admittedly on an informal basis
and was limited to helping employees put their
grievances into writing and handling unspecified
"problems." There is no showing that these "infor-
mal" activities required Jenkins' presence on the job.
Furthermore, it is undisputed that Jenkins has never
met with Limpco's management over a written
grievance nor has she directly participated in the
processing of grievances. Nor is the fact that Jenkins
was the only officer employed at Limpco relevant,
for there are only four officers in the amalgamated
local, so that clearly not every unit will have a union
officer present. It is apparent that the principal need
for superseniority in this case was to protect Jenkins'
union job which would have been lost if she worked
for another employer during layoff. As the recording
secretary. is not engaged in the type of function which
Dairylea sought to protect, it was a violation of the
Act for Local 623 to invoke the superseniority
provision on her behalf.
DECISION
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me on March 9, 1976,
at Pittsburgh, Pennsylvania, upon a complaint' issued by
the General Counsel of the National Labor Relations
Board and an answer filed by United Electrical, Radio and
Machine Workers of America, Local 623, hereinafter called
the Respondent Union. The issues raised by the pleadings
relate to whether or not the Respondent Union violated
Section 8(b)(I)(A) and (2) of the National Labor Relations
Act, as amended, by acts and conduct hereinafter speci-
fied. Briefs have been received from the General Counsel
and the Respondent Union, and the briefs have been duly
considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
I. PRELIMINARY MAlTERS
The wmplaint alleges, the answer admits, and I find that
L i p Mfg., Inc., hereinafter called Limpco, is (1)
engaged in the manufacture of clutches and brakes at its
plant at Greensburg, Pennsylvania; (2) in the 12-month
period preceding the issuance of the complaint, Limpw
manufactured and sold in interstate commerce products
valued in excess of $50,000; and (3) L i m p is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The complaint also alleges, the answer
admits, and I find that the Respondent Union is a labor
organization within the meaning of Section 2(5) of the Act.
The complaint further alleges, the answer admits, and I
find that the Respondent Union and L i m p have been
parties to a series of collective-bargaining agreements,
which have contained a clause relating to superseniority.
Section 4 of article XI of the 1972-75 bargaining agree-
ment, which was in effect at the time of Anna Mae
D'Amiw's layoff, and which was essentially similar to
section 5 of article XI of the current agreement, recited as
follows:
The highest seniority preference shall be given to
Officers and Union Stewards in regard to layoffs
provided they are capable of performing the available
work in their work unit.
It is not the General Counsel's contention, for reasons
which he did not explain on the record, that the provision
contained in section 4 of article XI of the contract in issue
is presumptively violative of Section 8(b)(I)(A) and (2) of
the Act. The General Counsel only alleges that section 4 of
article XI was unlawfully applied to accord superseniority
to the Respondent Union's recording secretary, Patricia
Jenkins, thereby depriving the Charging Party Anna Mae
D'Arnico of employment retention by L i m p in accor-
dance with the otherwise la- seniority provisions of the
wllective-bargaining agreement.
The evidence in this proceeding was adduced partly
through a written stipulation of facts, and partly through
testimony of witnesses called by the General Counsel and
the Respondent Union. To the extent there are variations
in the testimony of the witnesses concerning events,
circumstances, or interpretations thereof, and these are
minimal, I credit the testimony of the General Counsel's
witnesses.
It is undisputed that the superseniority provision de-
scribed above, or its essential equivalent in the current
bargaining agreement, has been maintained in full force
and effect at all times material to this proceeding. It is
' The complaint in this matter was issued on January 21, 1976, upon a
charge filed on November 12, 1975, and duly served on the Respondent
Union on November 13, 1975.
RADIO AND MACHINE WORKERS, LOCAL 623 41 1
equally undisputed that the superseniority provision was
invoked by the Union on July 3, 1975,2 to insure the
continued employment of Recording Secretary Patricia
Jenkins, who would have been laid off by Limpco in place
of Anna Mae D'Amico, who enjoyed greater seniority in
terms of the date of her hire and continuous service with
Limpco. As to further undisputed matters, the record
reveals that the Respondent Union has collective-bargain-
ing obligations for units of employees at 12 places of
business, including Limpco, and it has four officers; a
president, vice president, a financial secretary-treasurer,
and Recording Secretary Patricia Jenkins. It is equally
undisputed that at times material to this proceeding
Limpco had an employee complement of 38 or less
employees assigned to its machine shop, foundry, and
clutch manufacturing operations. In the same time frame
the Respondent Union had a chief steward and three shop
stewards assigned to Limpco, one for the machine shop,
one for the foundry, and two assigned to the clutch
manufacturing department where Jenkins and D'Amiw
were employed.
The General Counsel contends, and I find, that the single
issue presented in this case falls within the broad parame-
ters of the Board's rule in Dairylea Cooperative, Inc.3 In
Dairylea the Board held that steward superseniority is
proper if limited to layoff and recall because it furthers the
effective administration of bargaining agreements at the
plant level by encouraging the continued presence of a
steward on the job, to the benefit of all employees in the
bargaining unit.4 The Board recognized in Dairylea that
superseniority, even if limited to layoff and recall for the
benefit of stewards, tends to discriminate, but "such
discrimination as it may create% simply an incidental side
effect of a more general benefit accorded to all employees."
The Board also held in Dairylea, however, that supersenior-
ity provisions which go beyond layoff and recall are
presumptively invalid as tending to discriminate against
employees for union-related reasons, and thereby restrain
and coerce employees with respect to the exercise of their
Section 7 rights.5 Where superseniority clauses are not
limited on their face to layoff and recall, the burden of
rebutting the presumptive illegality rests with the party
asserting legality.6
There is no contention here that section 4 of article XI of
the bargaining agreement between the Respondent Union
and Limpco is presumptively unlawful, but rather the
contention is that it was unlawfully applied by the
Respondent Union in the case of its Recording Secretary
Patricia Jenkins. Nevertheless, the Board found violations
of the Act in Dairylea based on the application of the
superseniority clause, as well as it found violations based
on the presumptive illegality of a superseniority clause
which accord stewards benefits affecting the terms and
conditions of employment extending beyond layoff and
recall. Moreover, the essential impress of the Board's
decision in Dairylea is that superseniority for stewards,7
limjted to layoff and recall, is a valid contractual provision
All dates hereinafter are in 1975, unless specified to the contrary.
219 NLRB 656 (1975), enfd. sub nom. Milk Drivers & Dairy Employees,
Lorn1338 v. X.L.X.B., 531 F.2d 1162(C.k. 2, 1976).
Citing Bethlehem Steel Co. (Shipbuilding Division), 136 NLRB 1500,
1503 (1962). and relying on the rationale of the United States Supreme
because it encourages the continuity of the steward's
services as a means to effectuate effective administration of
collective-bargaining agreements at the plant level. Where,
however, superseniority extends beyond preference for
stewards for purposes of layoff and recall, the legality of
the provision, and its application, depends on a showing of
proper justification, and that burden rests here with the
Respondent Union. I find, accordingly, that the supersen-
iority clause, as applied here, is not limited in its
application to job preference for stewards in terms of layoff
and recall, but also extends to the Respondent Union's
officers. As such the facts fall within the ambit of the
Board's rule in Dairylea, and the issue is whether the
Respondent Union has proved justification.
The duties of the Respondent Union's recording secre-
tary are described as follows in section E of article V of the
constitution and bylaws of Local 623:
The Recording Secretary shall keep all records of the
meetings of the Local and the Local Executive Board.
Conduct all official correspondence of the Local Union
and Executive Board and perform such other duties as
directed by the Executive Board necessary for the
proper and effective administration of the affairs of the
Union. He shall be paid a salary of $15.00 per month.
There is nothing in the record before me to warrant a
conclusion that Patricia Jenkins' duties as recording
secretary extended beyond those described in the bylaws,
either by reason of the contents of section E of article V, or
as she may otherwise have been directed by the Union's
executive board. The record is clear that it was not a part of
Jenkins' oflicial duties to participate at any level in the
processing of grievances arising under the terms of the
collective-bargaining agreement between the Respondent
Union and Limpco. While the Respondent Union con-
tends that Jenkins was active in processing grievances, the
record is clear that this was an official duty of the chief and
shop stewards. Jenkins did not attend grievance meetings,
and her limited role in grievance processing was on a
volunteer basis only when consulted by management or an
employee. Neither did Jenkins have any official capacity,
nor did she otherwise participate in contract negotiations
between the Respondent Union and Limpco, a function
performed by the Union's paid agent, the chief steward and
one or more shop stewards. Jenkins did attend periodic
shop union meetings for Limpco employees, but she
performed no official functions, and her participation was
no different in kind or degree from the participation of
other rank-and-file members. Jenkins did ~ a r t i c i ~ a t e
1 r
actively in a strike at Limpw which occurred in January
1976, but contrary to the Respondent Union's contention I
fail to perceive how this concerted activity outside the
workplace, whether a part of her oficial duties or
otherwise, is the type of activity under Dairylea which
would justify her exercise of superseniority.
&urt in Aero~utical Indu~trial District Lodge 727 v. CampbelL el al., 337
U S . 521 (1949).
" ~ ~ r r ' o G r ) p ~ , ~ t i i ~ , xp*at 358.
Dairylea Cooperative, supra.
Emphasis supplied.
412 DEClSlONS OF NATlONAL LABOR RELATIONS BOARD
As additional reasons to justify the exercise of superse-
niority for Patricia Jenkins, the Respondent Union has
interjected a plethora of factual and legal arguments.
Among those arguments the Respondent contends that
Jenkins performed important duties in liaison matters
between Local 623 and the UE International. It is also
argued that superseniority is required by the constitution
and bylaws of the Local and the constitution of the
International, and that superseniority for officers was
approved by the membership as a condition of the
bargaining agreement with L i p c o . It is further argued
that there is an inharmonious relationship between the
Respondent Union and Limpco, as exemplified by an
unfair labor practice which was settled and another which
is currently pending before an Administrative Law Judge,
and that this justifies superseniority for the Union's
recording secretary.
On the whole of the record, whatever Patricia Jenkins'
duties or their importance to the Local Union, I find that
her duties related in no way to functions performed within
the Limpco plant. As to the argument on the Respondent
Union's relationship with Limpco, I again fail to perceive
how this justifies superseniority for Jenkins, since there is
no showing that her presence in the Limpco plant is
officially essential as a means to rectify the lack of
harmony. Furthermore, as to the requirements of constitu-
tions and bylaws and the alleged approval of Limpco
employees in the bargaining unit, the Board rejected a
somewhat similar argument in Dairylea, supra, with the
following comment:
Because seniority affects conditions of employment
there can be no real question that it must conform to
the requirements of the Act-irrespective of its source
in any agreement and even irrespective of the consent
of those adversely affected.
By way of legal argument the Respondent Union asserts
that the Dairylea case must be distinguished because the
issue of superseniority for union officers was not before the
Board. I do not read the rationale of Daitylea so narrowly.
In that case the Board held that superseniority for stewards
for purposes of layoff and recall is proper, but superseniori-
ty which extends beyond that limited area is presumptively
illegal, both as a contractual provision and as construed
and applied. An essential part of the rationale in Doirylea is
that superseniority extending beyond layoff and recall of
stewards can only be justified by evidence that it is
necessary to achieve continuity in the stewardship as a
means to achieve effective administration of the bargaining
agreement at the plant level. I cannot, therefore, construe
the rule of Dairylea as limited to the types of preference in
terms and conditions of employment to which supersenior-
ity may be extended, to the total exclusion of the types of
union oflicials who may benefit by superseniority.
The issue in this case is not presumptive illegality of the
provision in the collective-bargaining agreement extending
superseniority to the Union's officers, but rather that its
exercise in the case of Patricia Jenkins was unlawful within
A; to the Respondent Unlon's other citations of legal precedent, I find
that decisions and reports of the War Labor Board are inapplicable and of
no precedential value. As to the decision o f the Supreme Court of the
the meaning of Section 8@)(1XA) and (2) of the Act. The
General Counsel has proved by a preponderance of the
evidence that Patricia Jenkins' continued employment in
the Limpco plant was not required insofar as the continua-
tion of her employment was required for the performance
of her duties as recording secretary, and certainly not
required for effective administration of the bargaining
agreement at the plant level. The Respondent Union has
failed to overcome this prima facie case either factually or
legally.8
111. THE REMEDY
Having found that the Respondent Union has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
actions to remedy the unfair labor practices and to
effectuate the policies of the Act.
As I have found that the superseniority clause of the
collective-bargaining agreement between the Respondent
Union and L i p was applied to unlawfully deprive
Anna Mae D'Amico of her job retention with L i m p in
contravention of her proper seniority, I shall order that the
Respondent Union cease and desist from enforcing the
superseniority clause of the bargaining agreement to
achieve job retention for purposes of layoff and recall for
its Recording Secretary Patricia Jenkins. To further
effectuate a remedy, I shall order that the Respondent
Union, in writing with a copy to Anna Mae D'Amico,
request L i p Mfg., Inc,, to reinstate Anna Mae
D'Amico to her previous position of employment in
accordance with the seniority provisions contained in
article XI of the current collective-bargaining agreement.
In addition, I shall order that the Respondent Union make
Anna Mae D'Amico whole for any loss of earnings she
may have suffered as a result of the application to the
suphrseniority clause, said backpay to &&me until the
Respondent Union requests Limpco to reinstate D'Amico,
a n d the backpay sh'all be cdmputed in the manner
established by the Board in F. W. Woolworth Company, !90
NLRB 289 (1950). and shall bear interest as provided in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Finally, I shall order the Respondent Union to cease and
desist in any like or related manner from restraining or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
1. L i m p Mfg., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent Union, United Electrical, Radio
and Machine Workers of America, Local 623, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By applying the superseniority clause in its d e c -
tive-bargaining agreement with Limpw Mfg., Inc., to
deprive Anna Mae D'Amico of her job retention, thereby
causing L i m p to discriminate against D'Amiw in
United Slates in Aero~~tiCOl Indurtrial District Lodge 727 v. CompbeIt 337
US. 521, the facts of that case pertained to shop stewards or chairmen, not
to union officers.
RADIO AND MACHINE WORKERS, LOCAL 623 413
violation of Section 8(a)(3) of the Act, the Respondent
Union has engaged in violations of Section 8(b)(l)(A) and
(2) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing fmdings of fact, conclusions of law,
and upon the entire record in this proceeding, and
pursuant to the provisions of Section 1qc) of the Act, I
hereby issue the following recommended:
The Respondent Union, United Electrical, Radio and
Machine Workers of America, Local 623, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Applying or enforcing the superseniority clause
contained in article XI of its collective-bargaining agree-
ment with Limpco Mfg., Inc., to achieve job retention for
its recording secretary, thereby causing Limpco Mfg., Inc.,
to layoff Anna Mae D'Amico, or any other employee in
contravention of her proper seniority.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the policies of the
Act:
(a) Request Limpco Mfg., Inc., in writing with a copy to
Anna Mae D'Amico, to reinstate Anna Mae D'Amico to
In the event no exceptions are lileaas provided by Scc. 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.
her former position of employment in accordance with the
seniority provisions contained in article XI of the current
collective-bargaining agreement.
(b) Make Anna Mae D'Amico whole for any loss of
earnings she may have suffered by reason of the Respon-
dent Union's application of the superseniority provision
depriving her of her job retention, said backpay to be
computed in the manner prescribed in the Remedy section
hereof, and to continue until the Respondent Union has
requested Limpco to reinstate Anna Mae D'Amico in
accordance with paragraph 2(a) of this Order.
(c) Post at its office and meeting halls frequented by its
members and employees it represents at Lirnpco Mfg., Inc.,
copies of the attached notices marked "Appendix."lo
Copies of said notices, on forms provided by the Regional
Director for Region 6, shall be posted by the Respondent
Union after b;ing duly sign& by its representatives.
immediately upon receipt thereof, and shall be maintained
by the Respondent Union for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its members are customarily posted.
Reasonable steps shall be taken by the Respondent Union
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for Region 6 additional
signed copies of the attached notice marked "Appendix"
for posting by Limpco Mfg., Inc., if Limpco is willing.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days of the date of this Order, what steps the
Respondent Union has taken to comply herewith.
lo 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."