W.R. Grace & Co.

National Labor Relations Board - Board Decisions

Jun 17, 1977

230 N.L.R.B. 259 (N.L.R.B. 1977)

W.R. GRACE & CO.
W.R. Grace & Co., Construction Products Division
and Lawrence J. Schaeffer
Highway and Local Motor Freight Drivers, Dockmen
and Helpers, Local Union No. 701, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Lawrence
J. Schaeffer. Cases 22-CA-6998 and 22-CB-3236
June 17, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 29, 1976, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, Respondents filed
exceptions and supporting briefs, and General
Counsel filed a brief in reply to the Respondents'
exceptions and in support of the Administrative Law
Judge's Decision.
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
briefs 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 Respondents, W.R. Grace &
Co., Construction Products Division, Trenton, New
Jersey, its officers, agents, successors, and assigns,
and Highway and Local Motor Freight Drivers,
Dockmen and Helpers, Local Union No. 701,
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.
1 Member Murphy agrees with the holding herein. As set forth in her
concurring opinion in Union Carbide Corporation Chemical and Plastics
Operations Division, 228 NLRB 1152 (1977), she would find presumptively
lawful job retention superseniority clauses, including layoff, recall, shift
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.
230 NLRB No. 37
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge:
These cases were heard on November 4, 1976, in Newark,
New Jersey, pursuant to charges' filed by Lawrence J.
Schaeffer 2 and a consolidated complaint issued on July 7,
1976.
The complaint alleges that W.R. Grace & Co., Construc-
tion Products Division, herein the Respondent Employer,
and Highway and Local Motor Freight Drivers, Dockmen
and Helpers, Local Union No. 701, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein the Respondent Union, have
engaged in certain unfair labor practices in violation of
Section 8(aXl) and (3) and Section 8(bXIXA) and (2),
respectively, of the National Labor Relations Act, as
amended, herein the Act. The Respondents have filed
answers denying the allegations of unlawful conduct set
forth in the consolidated complaint.
Issues
1. Whether the Respondent Employer violated Section
8(aX3) and (1) of the Act and whether the Respondent
Union violated Section 8(bXIXA) and (2) of the Act, by
maintaining and implementing provisions in their collec-
tive-bargaining agreement and the rider thereto, which
accord superseniority to the Respondent Union's shop
steward with respect to job preferences, including preferen-
tial treatment as to work assignments, assignment of
equipment, opportunities for certain overtime work, and
job bidding.
2. Whether as a result of the implementation of the
aforesaid superseniority practices, the Respondent Em-
ployer's employees, William Smith and George A. Adams,
were unlawfully deprived of earnings from more lucrative
work assignments, lost opportunities for overtime work,
and, in the case of Adams, the assigned use of a new and
superior truck.
At the hearing, the Respondents were represented by
counsel and all parties were given full opportunity to
appear, to introduce evidence, to examine and cross-
examine witnesses, and to file briefs. Upon the entire
record, the briefs filed by the General Counsel and the
Respondents, and upon my observation of the demeanor of
the witnesses, I make the following:
The original charge in Case 22-CB-3236 was filed on May 18, 1976.
The first amended charge in that case and the charge in Case 22-CA--6998
were both filed on May 26, 1976.
2 Although Lawrence J. Schaeffer, the Charging Party herein, was
present at the hearing, he did not enter an appearance or otherwise
participate. Those allegations of Schaeffer's charges which were embodied
in the consolidated complaint and were the subject of this proceeding
related to whether his Union's steward had received certain work benefits by
virtue of an unlawfully broad superseniority contract provision and the
practices that had evolved therefrom. As Schaeffer's overall job seniority is
less than that of the steward, the disputed conduct did not affect Schaeffer's
substantive rights and he would not be affected by any remedy found
appropriate herein.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
The Respondent Employer, a subsidiary of W.R. Grace
& Co., a Connecticut corporation, at its relevant office and
plant located in Trenton, New Jersey, herein called the
Trenton plant, is engaged in the manufacture, sale, and
distribution of insulation products. During the calendar
year 1975, said operations being representative of its
operations at all times material herein, the Respondent
Employer manufactured, sold, and distributed goods
valued in excess of $50,000, of which goods valued in
excess of $50,000 were shipped from its Trenton plant in
interstate commerce directly to States of the United States
other than the State of New Jersey. Upon the foregoing
conceded facts, I find that the Respondent Employer is in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II1. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts3
The Respondent Employer, a producer of insulation
products, maintains a delivery operation at its Trenton,
New Jersey, plant. From there its products are delivered by
truck to various constructionjobsites.
For approximately 20 years, the Respondent Union has
had collective-bargaining agreements with the Respondent
Employer pursuant to which the Respondent Union has
represented a unit presently consisting of the Employer's
nine truckdrivers. The most recent collective-bargaining
contract between the Respondents, a memorandum of
agreement which expired March 31, 1976, provided that
the Respondents agreed "to be bound by the provisions of
the New Jersey-New York Area General Trucking Supple-
ment and the National Master Freight Agreement, and all
Riders and Supplements thereto . . . for the period from
July 1, 1973, through March 31, 1976," with certain stated
exceptions not relevant herein. Although the agreements
expired on March 31, prior to the start of the hearing, it is
not disputed that the Respondents, thereafter, continued to
recognize and implement certain provisions of those
agreements, including those relating to the superseniority
to be afforded to union stewards. In this regard, the
National Master Freight Agreement which, as noted, was
incorporated by reference into the Respondents' memoran-
dum of agreement, provided, in relevant part, as follows:
ARTICLE 42 - Stewards:
Stewards shall be granted super-seniority for all
purposes including layoff, rehire, bidding, and job
preference. One steward on the morning dispatch, in
3 The facts herein are generally undisputed.
4 219 NLRB 656, enfd. sub nom. N.LR.B. v. Teamsters, Local 338, 531
F.2d 1162, (C.A. 2, 1976).
compliance with regular starting times, shall be the last
man to leave the terminal.
ARTICLE 44 - SENIORITY:
Section 1. Seniority shall prevail in that the Employ-
er recognizes the general principle that senior employ-
ees shall have preference to choose their shifts and to
work at the job for which the pay is highest, provided
such employee is qualified for such work. Seniority
does not give an employee the right to choose a specific
unit, run, trip or load.
Section 7. Seniority shall prevail in selection of
starting time so that the oldest man in seniority shall
have the earliest starting time if he so elects (provided
he is qualified) ...
The agreement also required that all employees become
and remain members of the Respondent Union on and
after the 31st day following commencement of employ-
ment.
The language of article 42 of the National Master Freight
Agreement affording the Respondent Union's shop stew-
ard superseniority for all purposes, including layoff,
rehiring, bidding, and job preference, is repeated in a Local
701 rider to the Master Freight Agreement, also incorpo-
rated by reference into the Respondents' collective-bar-
gaining agreement. The rider also contained the following
provision:
E. Seniority Bid. Seniority shall prevail in that the
Employer recognizes the general principle that senior
employees shall have preference to select the regular
established starting times (shifts) and to work at the job
for which the pay is the highest provided such employee
is qualified for such work ...
The General Counsel contends that, as the work
preferences based upon superseniority afforded to Ray-
mond Mason, the Respondent Union's driver-steward, at
the Respondent Employer's Trenton plant, at the times
material herein, were not limited to layoff and recall, they
exceeded in scope what is legally permissible under
Dairylea Cooperative, Inc. 4 Accordingly, the General
Counsel argues that the superseniority afforded Mason was
unlawful both with respect to the language of the
agreements quoted above and as to the practices of the
Respondents in implementing them. The Respondents, in
turn, deny the commission of any unfair labor practice and
argue that this matter is distinguishable from Dairylea,
supra.
The parties stipulated that, of the nine drivers on the
seniority list, only William Smith and George A. Adams
are senior to Mason, the steward. Smith and Adams began
their employment with the Respondent Employer on July
14, 1952, and June 28, 1966, respectively, while Mason did
not begin to work for the Respondent Employer until
October 17, 1967. Therefore, Smith and Adams, alone,
260
W R. GRACE & CO.
were in a position to be adversely affected by any
preferential treatment afforded to Mason as steward under
the disputed superseniority practices.
The three specific job preferences which the General
Counsel contends unlawfully have been afforded to Mason
by virtue of his superseniority are as follows: first, Mason
was assigned to deliver the first truckload to leave the plant
each morning; second, he received the first opportunity to
perform overtime work on Saturdays and holidays:5 and
third, he was assigned to regularly operate a newly
acquired truck. In connection with the last benefit, Robert
F. Devine, the Respondent Employer's Trenton plant
manager. testified that on December 9, 1975, he assigned
two new White tandem-axle trucks to Mason and Smith,
retiring the leased trucks they had been operating. 6 By
virtue of this assignment, Adams, whose job seniority was
greater than Mason's, did not receive a new truck but
continued to drive the older single-axle vehicle he previous-
ly had been operating.? Devine testified that he had
assigned the two new trucks to Mason and Smith because it
has been management's policy to assign new equipment
according to seniority and, as the most senior men,
particularly Mason. generally take the longest runs, Devine
wanted the best equipment to be used on those runs.
Devine denied that any official of the Respondent Union
had told him to assign the new trucks to the most senior
men or that there had been any specific contractual
obligation to do so.
Assignment to the first delivery load each morning has
been particularly beneficial to Mason since it carries the
largest compensation. levine explained that, as most of
the Respondent Employer's customers take delivery at
various construction sites by 8 a.m.. the initial load would
be delivered to the jobsite farthest from the Respondent
Employer's plant. As drivers are paid by the hour, the route
with the longest driving time would provide the greatest
remuneration.
The first load usually is scheduled to leave the Respon-
dent Employer's plant at 4 a.m. More recently, however,
the Respondent Employer has been dispatching an average
of two loads a week to Beltsville, Maryland, at 12:01 a.m.
for delivery at 4 a.m. These runs also are assigned to
Mason. The other drivers on the seniority list, from the
second man down, generally leave on their routes between
5 to 6 a.m. and return to Trenton between noontime and 4
p.m. Most of the drivers, including the steward, are back in
the Tlrenton barn between 2 to 4 p.m.
George Frey, a business agent and trustee of the
Respondent Union who has been administering the
collective-bargaining agreements with the Respondent
Employer since 1973, initially testified that the reason his
union had arranged with the Respondent Employer to
allow the shop steward to take out the first load each day
. The first opportunity to perform o'ertime wo rk on c'casions other
than Saturda)s and holidays was not a benefit afforded the steward
6 It is undisputed that in the absence of special circumstances each of the
Respondent Emploer's driers soauldl regularly operate the respective
trucks Individualla assigned to them.
7 Except for the two new tandem-axle tractors, all of the Respondent
Employer s trucks are of the single-axle type As the tilndem-axle trucks
afford greater traction and work capacity. thev may more readily be used
for deliveries to the difficult jobsites and can transport larger loads for
greater distances These attributes, and the l- tI that they are newer and
more modern. nmake their operation lmore dlesiraible
was to enable the steward to return early so that he might
be available when the other drivers came back in order to
answer their questions and to process any grievances.
However, on cross-examination, Frey conceded that there
is no standing practice or procedure whereby the steward
remained at the barn after his daily run was concluded to
receive any grievances. Rather, the steward normally
would go home unless he previously had been contacted by
a member of the unit or by Frey himself. 8 Plant Manager
I)evine, however, testified, as noted, that as most of the
drivers, including the steward, return to the barn at
approximately the same time, Mason could have taken a
load other than the first of the day without materially
changing the time of his return.
With regard to the remaining preference to Mason, the
first opportunity to work overtime on Saturdays and
holidays, the record reveals that, during the calendar year
1976. at least one driver has worked overtime on 15
Saturdays or holidays. Although Mason did not always
perform such overtime work, he was always given the first
opportunity to do so.
Except for the preferences available to the steward as
described above, all drivers within the unit worked in the
same classification and performed the same tasks.
B. Analysis
In Dairylea Cooperative, supra, a majority of the Board
held that a contractual provision making stewards the most
senior employee "in the craft in which he is employed"
violated the act when applied to terms and conditions of
employment other than layoff or recall. In so concluding,
the Board reasoned that the preference referred to by such
a contractual provision was based solely upon the stew-
ard's status as an official of the Union and was contrary to
the policy of the Act designed to separate job rights and
benefits from union activities. In Dairylea, the Board ruled
that, although effective administration of bargaining
agreements at the plant level might require the continued
presence of the steward on the job, and, therefore, would
justify according preference to stewards based upon their
union office for purposes of layoff and recall, such
purposes did not warrant affording stewards preference as
to additional terms and conditions of employment, absent
a showing of facts sufficient to establish that any additional
preference promoted the effective administration of the
particular bargaining agreement and relationship at issue.
Accordingly, absent such a showing, such preferences,
extending beyond layoff and recall, are inherently discrimi-
natory and presumptively unlawful.
In reaching the foregoing conclusions in the Dairylea
case, supra, the Board noted the inherent tendency of
superseniority clauses to discriminate against employees
Under the existing practice. employees seeking to notify the steward of
any grievances or of any other matter would leave a note near Mason's
timecard. He. in turn, would leave a cop) of a blank grievance form for the
employee to complete with the grievant's timecard. When the grievance
form has been completed and signed by the individual employee, the
steward would discuss the matter with him before proceeding further. If
deemed warranted, the steward would contact Business Agent Frey and
arrange for a meeting with Devine. All such meetings have taken place
dunng nonworking hours
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for union-related reasons. Accordingly, in that situation, an
employee could be denied by the employer job benefits to
which he otherwise would be fully entitled solely on the
ground that he was not the union steward, while another
employee could receive benefits he otherwise would not
obtain solely because he is the steward. Consequently, the
only way a unit employee could gain preference to job
benefits was to be a good, enthusiastic unionist and thereby
through such actions recommend himself to the union
hierarchy for appointment to the office of steward. Such a
state of affairs, which would have the natural effect of
unduly encouraging membership in the Union, would
restrain and coerce employees with respect to the exercise
of rights protected by the Act. Accordingly, the Board
found that superseniority clauses which are not on their
face limited to layoff and recall are presumptively unlawful
and that the burden of rebutting this presumption by
establishing justification rests on the party asserting
legality.
Article 42 of the National Master Freight Agreement and
the language of the Local 701 rider, quoted above, provide
that stewards shall be granted superseniority for all
purposes including layoff, rehire, bidding, and job prefer-
ence. The Respondents, as noted, concede that such
superseniority has been implemented in affording the shop
steward job preferences with regard to assignment to the
most lucrative first daily delivery load, the first opportunity
to work overtime on Saturdays and holidays, and in the
assignment of the newest and best trucks.
The Respondents contend that the instant case is
distinguishable from Dairylea in that here, unlike Dairylea,
where the stewards were appointed, Mason had been
elected to his position by members of the bargaining unit.9
On the other hand, the record reveals that Mason's
immediate predecessor as steward had been appointed.
Accordingly, although Mason was an elected steward,
there do not appear to have been bylaws in effect which
would have mandated that mode of designation. Noting
too, that the previous steward to serve the unit had been
appointed to office, the evidence does not show that
Mason's elected status was more than coincidental.
Although the majority in Dairylea did discuss the fact
that, in that case, employees could gain superseniority only
by being appointed to the position of steward by their
union's hierarchy, at no point did the Board restrict its
analysis to situations where officials were appointed to
office, or preclude its application to situations where union
officers were elected to their positions. Whether union
officials are elected or appointed, in either case, the
objective would be to select officers who would effectively
advocate the position of the Union as the employees'
representative. 1, therefore, do not find the distinction
between elected and appointed stewards particularly
meaningful. Moreover, to be eligible to hold union office,
or even to vote in an election for those who would hold
office, employees must be members of the Respondent
9 At the hearing, the parties stipulated that copies of the Respondent
Union's bylaws with respect to the designation of shop stewards should be
included in the record and could be submitted for that purpose after the end
of the hearing. However, in a posthearing letter to the parties, subsequently
incorporated in the record, counsel for the Respondent Union advised that
the Respondent Union's bylaws, in effect during the times matenal herein,
Union. Most significantly, the underlined policy of the Act
in this area is to separate union activities from terms and
conditions of employment. Thus, it is the given situation
which is proscribed, not the means by which that situation
is created. For these reasons, I find that the fact that the
Respondent Union's steward was elected rather than
appointed does not preclude application of the Dairylea
principle to the clause granting stewards superseniority for
job benefits which are not on their face limited to layoff or
recall.
In Dairylea, the Board agreed that the overall policy of
the Act justified preferential treatment with respect to
layoffs and recalls, so that the presence of officials of labor
organizations to administer the contract could be assured
to the maximum possible degree, although in so doing there
was a literal violation of the Act. Beyond layoffs and
recalls, the Board saw no need to compromise the statutory
proscription in the interest of promoting the overall
purposes and policies of the Act. Thus, the question is not
one of the number of benefits conferred upon the steward
nor is it one of the degree of importance of those benefits.
If they involve matters other than recall or layoff, they are
presumptively unlawful and the burden falls upon the
party or practices that advocate their unlawfulness to
provide evidence sufficient to establish justification.
Having found that the Dairylea presumption is applica-
ble to the job preference based upon superseniority
accorded the Respondent Union's steward in this matter,
the Respondents must bear the burden of establishing
justification for such preferences to preclude a finding that
they have violated the Act.
However, the Respondents have offered no specific
justification for the advantage relating to the first opportu-
nity to work overtime on Saturdays and holidays and the
only logical connection between the assignment of the new
truck to Mason, as steward, rather than to Adams, who was
senior, related to Mason's other job benefit in making the
first and most lucrative daily delivery. As noted, Plant
Manager Devine, in allocating the new trucks, had wanted
the driver with the longest run to have the best equipment.
Likewise, no merit is found to the Respondent Union's
contention that the earlier starting time in some way makes
the steward, under the circumstances herein, more avail-
able to administer the contract. In this connection, it is
noted that Mason, under the existing schedule, could
return to the barn at approximately the same time if he had
a later daily delivery run; that, in any event, Mason does
not wait at the barn for other drivers after his return to
learn of any new problems; and on the days when he is
assigned to make the very early deliveries to Beltsville,
Maryland, his working hours are even further removed
from those of the other unit members. Moreover, an
additional question is raised as to whether, under the terms
of the contract which established the broad job preferences
for the Respondent Union's steward, it was necessarily
intended that the steward have the first daily delivery load.
did not contain any specific language enforcing the method of selecting a
shop steward. However, a resolution had been adopted to elect stewards and
such a provision would be incorporated in the Respondent Union's new
bylaws which were in the process of being amended and approved by the
International union.
262
W.R. GRACE & CO.
Article 42 of the National Master Freight Agreement, asquoted above, provides, in part, that one steward on themorning dispatch shall be the last man to leave theterminal. It originally may have been thought that thesteward could best fill his role in administering the contract
by being available to the drivers at the start rather than at
the end of the day.
Therefore, I find that, in the circumstances in this case,
these portions of the current collective-bargaining agree-
ment, including the rider thereto, which accord supersen-
iority to the Respondent Union's steward for all purposes,
including rehire (as opposed to recall), bidding, and jobpreferences, such as delivery of the first load, overtime
work on Saturdays and holidays, and preferential assign-
ment of new equipment, are presumptively unlawful. Itfurther is concluded that the Respondents have notdemonstrated sufficient justification to rebut this presump-tion by their failure to establish that such benefits have the
effect of furthering the effective administration of thecollective-bargaining agreements and the bargaining rela-
tionship. Accordingly, it is found that, by maintaining and
enforcing these superseniority clauses, the Respondent
Union has violated Section 8(b))(A) and (2) of the Actand the Respondent Employer has violated Section 8(a)(1)
and (3) of the Act. Moreover, by according Steward Mason
superseniority with respect to the assignment of the newtandem-axle truck,' 0 the assignment of the first dailydelivery loads, and giving Mason the first opportunity toperform overtime work on Saturdays and holidays, the
Respondent Employer has discriminated against employ-
ees Smith and Adams in violation of Section 8(aX3) and (1)of the Act, and, further, that the Respondent Union
thereby violated Section 8(bX)(IXA) and (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section III,above, occurring in connection with the. operations of theRespondent Employer described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend tolead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged incertain unfair labor practices, I shall recommend that theybe ordered to cease and desist therefrom and to take
certain affirmative action to effectuate the policies of the
Act.
'0 Although Devine testified that he had assigned the new truck to
Mason rather than to Adams on his own initiative and had not beenspecifically requested to do so by the Respondent Union, it, nevertheless, isconcluded that the Respondent Union is jointly responsible with theRespondent Employer for this discriminatory act as it was a natural andforeseeable consequence of the superseniority arrangement found unlawful
herein.
ri While the record reveals that bidding is not actually practiced by the
Respondent Employer's drivers, the collective-bargaining agreement, on itsface, provides a bidding preference to the steward as an incident ofsuperseniority. Accordingly, under the remedy found herein any such
As it has been concluded that the above-described
superseniority clauses set forth in the collective-bargaining
agreement and its rider are unlawful, the RespondentUnion shall be ordered to cease and desist from maintain-
ing and enforcing such clauses in its bargaining agreements
with the Respondent Employer to the extent that stewards
shall be granted superseniority for purposes other thanlayoff and recall. Accordingly, the Respondent Union shallbe ordered to cease and desist from maintaining andenforcing those aspects of the disputed contract provisions
which afford stewards superseniority for all purposes,
including rehire (as opposed to recall), bidding," and otherjob preferences. It shall also be ordered that the Respon-
dent Employer cease and desist from maintaining andenforcing such clauses in its bargaining agreements with
Respondent Union.
As it also has been found that the unlawful superseniori-
ty clauses were so applied as to deny William Smith or, inthe event of his unavailability, George Adams assignment
to the first daily delivery routes and first opportunity toperform overtime work on Saturdays and holidays, which,they, respectively, would have had but for the illegaldeprivation of their appropriate seniority, it shall berecommended that the Respondents jointly and severallymake Smith and Adams whole for any loss of earnings
they, respectively, may have sustained as a result of thediscrimination against them. Backpay shall be computed inthe manner established by the Board in F W. WoohvorthCompany, '2 with interest as provided in Isis Plumbing &Heating Co. 1 3 Also, in order to remedy fully the effects ofthe Respondents' unlawful conduct, it shall be recommend-
ed that the Respondent Employer assign Smith or, in thealternative, Adams, if either should so wish, to the initialdaily delivery routes to which they would be entitled intheir order of respective seniority. It shall also be directed
that the Respondent Union, in writing, notify the Respon-dent Employer and Smith and Adams that it has noobjection to assigning Smith and Adams such initial dailydelivery loads and first opportunity to perform overtimework on Saturdays and holidays, in the order of their
respective seniority. Additionally, the Respondent Employ-er shall be ordered forthwith to assign the new tandem-axle
truck presently being driven by Mason to Adams, shouldAdams desire to operate that truck. The RespondentEmployer's backpay obligation with respect to the assign-ment of the initial daily delivery load shall run from theeffective day of the discrimination against Smith andAdams, respectively, November 26, 1975, to the time itmakes such offer of the initial daily delivery load. TheRespondent Employer's backpay obligation with regard toovertime work shall run from the foregoing effective dateto the date it makes the initial offer of overtime work on
provision in the collective-bargaining agreement should no longer be
maintained or enforced.
1i 90 NLRB 289 (1950). As the charges against the respective Respon-
dents were not filed on the same day, the periods under Sec. 10(b) of the Actlimiting their backpay liabilities to events occurring not longer than 6months prior to filing of the charges with the Board do not exactly cover thesame periods. While there is the noted joint and several backpay liability tothe extent that the backpay periods overlap, the Respondent Union'sbackpay liability period commenced on November 18, 1975, while that ofthe Respondent Employer began on November 26, 1975.
13 138NLRB716(1962).
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturdays and holidays to Smith or Adams, in their
respective orders of seniority. The Respondent Union's
backpay obligation shall run from November 18, 1975, to
the date of its written notification to the Respondent
Employer that if it has no objection to such assignments of
the first delivery load and Saturday and holiday overtime
work to Smith and Adams, in their respective order of
seniority, and to the assignment to Adams of the tandem-
axle truck operated by Mason.
Finally, it shall be ordered that the Respondent Employ-
er cease and desist from in any like or related manner
interfering with, restraining, or coercing its employees in
the exercise of rights guaranteed by Section 7 of the Act,
and that the Respondent Union likewise cease and desist
from restraining or coercing employees it represents from
exercising those same rights.1 4
CONCLUSIONS OF LAW
1. W.R. Grace & Co., Construction Products Division,
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Highway and Local Motor Freight Drivers, Dock-
men and Helpers, Local Union No. 701, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining and enforcing seniority clauses in
their collective-bargaining agreement, including the rider
thereto, according union stewards superseniority for terms
and conditions of employment not limited to layoff and
recall, the Respondent Employer and the Respondent
Union have engaged in, and are engaging in, unfair labor
practices within the meaning of Section 8(a)(l) and (3) and
Section 8(bX)(1)(A) and (2) of the Act, respectively.
4. By discriminating against William Smith and George
A. Adams, respectively, in assigning superseniority to the
Respondent Union's steward with respect to assignment of
the first daily delivery load and the first opportunity to
perform overtime work on Saturdays and holidays, and by
discriminating against Adams as to the assignment of new
motor vehicles, the Respondents engaged in further
violations of the foregoing sections of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
14 Although this matter has required consideration of the legality of a
provision of the National Master Freight Agreement and New Jersey-New
York Area General Trucking Supplemental Agreement which parties other
than those named as Respondents in this proceeding have executed or
otherwise subscribed, it is not the intent of the General Counsel or of this
Decision that the remedy recommended should affect parties not specifical-
ly named herein.
ORDER '5
A. The Respondent Employer, W.R. Grace & Co.,
Construction Products Division, Trenton, New Jersey, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining and enforcing collective-bargaining
provisions with the Respondent Union, Highway and
Local Motor Freight Drivers, Dockmen and Helpers, Local
Union No. 701, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
according union stewards superseniority with respect to
terms and conditions of employment other than layoff or
recall.
(b) Discriminating against George A. Adams, in the
assignment of new trucks, and discriminating against
William Smith and George A. Adams, consecutively, in the
order of their seniority, in assigning the first daily delivery
routes, the first opportunity for overtime work on Satur-
days and holidays, or any other term and condition of
employment other than layoff or recall, by according top
seniority to the union steward in the assignment of such
terms and conditions of employment where the union
steward, in fact, does not have top seniority in terms of
length of employment.
(c) 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:
(a) Jointly and severally with the Respondent Union
make William Smith and George A. Adams, consecutively,
in the order of their seniority, whole for any loss of
earnings they may have suffered as a result of the
discrimination against them, such earnings to be deter-
mined in the manner set forth in the section of this
Decision entitled "The Remedy," and offer William Smith
and George A. Adams, consecutively, in the order of their
respective seniority, the first daily delivery routes and the
first opportunity for Saturday and holiday overtime work
they now would have but for the unlawful assignment of
superseniority to union stewards.
(b) Offer to George A. Adams the recently acquired
tandem-axle truck he now would be assigned to operate
but for the unlawful assignment of superseniority to the
union steward.
(c) Preserve and, upon request, make available to the
Board or its agent, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay with respect to the work
assignments and overtime premium pay due under the
terms of this Order.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
264
W.R. GRACE & CO.
(d) Post at its establishment in Trenton, New Jersey,
copies of the attached notices marked "Appendix A" and
"Appendix B." 16 Copies of said notices, on forms provided
by the Regional Director for Region 22, after being duly
signed by representatives of the Respondent Employer and
Respondent Union, shall be posted by the Respondent
Employer immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent Employer to insure that the
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent Employer has taken to comply
herewith.
B. The Respondent Union, Highway and Local Motor
Freight Drivers, Dockmen and Helpers, Local Union No.
701, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving effect to
those clauses in its collective-bargaining agreements with
the Respondent Employer, W.R. Grace & Co., Construc-
tion Products Division, according union stewards super-
seniority with respect to terms and conditions of employ-
ment other than layoff and recall.
(b) Causing or attempting to cause the Respondent
Employer 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 the Respondent Employer 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:
(a) Jointly and severally with the Respondent Employer
make William Smith and George A. Adams, consecutively,
in the order of their seniority, whole for any loss of
earnings they may have suffered by reason of the
discrimination against them, such lost earnings to be
determined in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify the Respondent Employer, William Smith,
and George A. Adams, in writing, that it has no objection
to the assignment of Smith and Adams, consecutively, in
the order of their seniority, to the daily delivery route and
the first opportunity for overtime work on Saturdays and
holidays they now would have but for the unlawful
assignment of top seniority to the union steward.
(c) Notify the Respondent Employer and George A.
Adams that it has no objections to the assignment to
George A. Adams of the recently acquired tandem-axle
truck he now would be assigned to operate but for the
unlawful assignment of top seniority to the union steward.
(d) Post at its office and meeting halls used by or
frequented by its members and employees it represents at
the Respondent Employer's Trenton, New Jersey, facility
copies of the attached notices marked "Appendix A" and
"Appendix B." 17 Copies of said notices, on forms provided
by the Regional Director for Region 22, shall be posted by
the Respondent Union after being duly signed by represen-
tatives of the Respondent Employer and the Respondent
Union, respectively, immediately upon receipt thereof, and
be maintained by the Respondent Union for 60 consecu-
tive 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 the Respondent Union to insure that the
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent Union has taken to comply herewith.
"6 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."
17 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."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we were represented and
presented evidence, it has been found that we have violated
the National Labor Relations Act in certain respects. To
correct and remedy these violations, we have been directed
to take certain actions and to post this notice.
WE WILL NOT maintain and enforce any agreement
with Highway and Local Motor Freight Drivers,
Dockmen and Helpers, Local Union No. 701, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, giving union
stewards top seniority no matter what their length of
employment with respect to terms and conditions of
employment, except for layoff and recall.
WE WILL NOT discriminate against George A. Adams
in the assignment of new trucks and other equipment,
and WE WILL NOT discriminate against William Smith
and George A. Adams, consecutively, in the order of
their seniority, by assigning the first daily delivery
route, first opportunity for overtime work on Saturdays
and holidays, or any other terms and conditions of
employment other than layoff and recall, to a union
steward on the basis of seniority when such union
steward, in fact, does not have seniority in terms of
length of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights protected by Section 7 of the Act.
WE WILL jointly and severally with the above-named
Union pay, with interest, William Smith and George A.
Adams, consecutively, in the order of their seniority,
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any earnings lost as a result of awarding the first daily
delivery route and first opportunity for overtime work
on Saturdays and holidays to the union steward rather
than to Smith or Adams when Smith and Adams,
respectively, have top seniority in terms of length of
service.
WE WILL offer William Smith and George A. Adams,
consecutively, in the order of their seniority, the first
daily route and the first opportunity for overtime work
on Saturdays and holidays they now would have but for
the unlawful assignment of top seniority to the union
steward.
WE WILL offer George A. Adams the assignment to
operate the recently acquired tandem-axle truck he now
would be assigned to operate but for the unlawful
assignment of top seniority to the union steward.
W.R. GRACE & Co.,
CONSTRUCTION PRODUCTS
DIVISION
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we were represented and
presented evidence, it has been found that we have violated
the National Labor Relations Act in certain respects. To
correct and remedy these violations, we have been directed
to take certain actions and to post this notice.
WE WILL NOT maintain and enforce any agreement
with W.R. Grace & Co., Construction Productions
Division, or any other employer, giving our stewards or
other representatives top seniority no matter what their
length of employment, with respect to terms and
conditions of employment, except for layoff and recall.
WE WILL NOT cause or seek to cause W.R. Grace &
Co., Construction Products Division, to discriminate
against George A. Adams in the assignment of new
trucks or other equipment, and WE WILL NOT cause or
seek to cause the above-named Employer to discrimi-
nate against William Smith and George A. Adams,
consecutively, in the order of their seniority, by
assigning the first daily delivery route, first opportunity
for overtime work on Saturdays and holidays, or any
other terms and conditions of employment other than
layoff and recall, to a union steward on the basis of
seniority when such steward, in fact, does not 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.
WE WILL jointly and severally with W.R. Grace &
Co., Construction Products Division, pay, with interest,
William Smith and George A. Adams, consecutively, in
the order of their seniority, any earnings lost as a result
of awarding the first daily delivery routes and the first
opportunity for overtime work on Saturdays and
holidays to the union steward rather than to Smith or
Adams when they, respectively, have top seniority in
terms of length of service.
WE WILL notify W.R. Grace & Co., Construction
Products Division, William Smith, and George A.
Adams that we have no objection to the assignment of
Smith and Adams, consecutively, in the order of their
seniority, of the first daily delivery route and first
opportunity for overtime work on Saturdays and
holidays they now would have but for the unlawful
assignment of top senority of the union steward.
WE WILL notify W.R. Grace & Co., Construction
Products Division, and George A. Adams that we have
no objections to the assignment to George A. Adams of
the recently acquired tandem-axle truck he now would
be assigned to operate but for the unlawful assignment
of top seniority to the union steward.
HIGHWAY AND LOCAL
MOTOR FREIGHT DRIVERS,
DOCKMEN AND HELPERS,
LOCAL UNION No. 701,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
266