Preston Trucking Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Preston Trucking Company, Inc. and Harold G. Chan- dler, Teamsters Local 20 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Harold G. Chandler, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Harold G. Chandler. Cases 8-CA-10890, 8-CB-3359, and 8-CB-3449 May 25, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 31, 1978, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and the Respondent Unions filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The issues are whether Respondents have provided superseniority for union stewards going beyond lay- off and recall without justification in violation of Section (a)(l) and 8(b)(1)(A) of the Act, and have enforced it in violation of Section 8(a)(3) and 8(b)(2) of the Act. Respondent Company. an interstate shipper, is one of approximately 9,800 companies engaged in mul- tiemployer bargaining with Respondent Internation- al and its various locals, including Respondent Local 20. The Company and Local 20 are parties to a con- tract effective April 1. 1976, to March 31, 1979, styled "National Master Freight Agreement and Central States Area Over-The-Road Local Cartage Supplemental Agreement." The disputed superseniority clause provides in per- tinent part: Stewards shall be granted super-seniority for all purposes, including layoff, rehire, bidding and job preference, if requested by the Local Union within sixty (60) days after the effective date of this Agreement; but only one (1) steward shall have super-seniority for such purposes. Pursuant to that clause Steward Robert Rupp was assigned a route that he bid on in February and April 1977. Employee Chandler would have secured that route assignment if Local 20 had not requested su- perseniority for Steward Rupp. The route selected re- turned Rupp to Toledo three times each week, whereas his previous schedule had returned him to Toledo once each week. Under the collective-bargaining agreement, senior- ity is the sole consideration in those areas enumerat- ed in the superseniority clause, and is a factor along with "desire" and "preference," for the assignment by the Employer of vacation periods. The parties, the Administrative Law Judge, and the Board agree that Dairylea Cooperative Inc.' is ap- plicable. Dairylea established that a superseniority clause covering union stewards not limited to layoff and recall is presumptively unlawful. The Dairylea rationale is that superseniority for layoff and recall has a proper aim of furthering the effective adminis- tration of bargaining agreements on the plant level by keeping the steward on the job, and that any "dis- crimination as it may create is simply an incidental side effect of a more general benefit accorded all em- ployees." The General Counsel contends that maintaining a clause that grants superseniority to stewards for "all purposes" unlawfully encourages .nion adherence. It further argues that even if Respondents could justify superseniority in job bidding, they did not justify maintaining such a broad superseniority clause. Respondent Local 20 defends that the grant of su- perseniority for "all purposes" is not overly broad since the collective-bargaining agreement affords no benefits based on seniority other than those men- tioned in the disputed clause, thus qualifying "all purposes." As regards the express benefits of "bid- ding and job preference," it explains that they are one and the same as all of the employees are drivers and that the only "preferences" involve route assign- ments that are bid for, and contends that enforcing the clause with respect to job bidding was justified because the route assigned to the steward best ena- bled him to perform his duties by being present to process grievances and attend to necessary business at the union hall. It argues that Steward Rupp could have chosen an assignment permitting his return to Toledo five times each week instead of three, but did not since it would leave insufficient time to transact business after allowing for commuting and sleeping time. Respondent International, in addition to support- 1219 NLRB 656 (1975) (then Member Fanning dissenting), enfd. 531 F.2d 1162 (C.A. 2, 1976). 2 Id at 658. 236 NLRB No. 56 464 PRESTON TRUCKING COMPANY. INC. ing Local 20's contentions, claims it is not properly a party to this proceeding because it is not a signatory to the contract, and because the disputed clause spe- cifically makes superseniority a local union option. Administrative Law Judge Rose dismissed the complaints in their entirety. Applying Dairylea, he concluded that Respondents had justified supersen- iority for stewards in route bidding. Specifically, the steward is involved in the initial stages of the griev- ance procedure and must be present on some regular basis to effectively perform those duties. Further, the assignment here did not result in substantially differ- ent earnings. Dismissing the allegation that mainte- nance of the disputed clause is unlawful, the Admin- istrative Law Judge reasoned that (1) precedent does not suggest that broad superseniority for union stew- ards absent specific enforcement is unlawful: (2) reading the provision in conjunction with the rest of the contract reveals that seniority applies only to those items set forth in the superseniority clause it- self; (3) Steward Rupp and other stewards never re- ceived a benefit from being steward other than a job assignment; and (4) the clause does not encourage union membership or activism because if it is to be assumed that employees know the wording of the su- perseniority provision, then it is also to be assumed that they know the rest of the contract. Having re- solved the substantive allegations in favor of Respon- dents, the Administrative Law Judge dismissed the complaint against the International without resolving whether it was a party.3 However, the Administrative Law Judge misap- plied Dairylea. Therefore, we reverse his dismissal with respect to Local 20 and the Company.4 The justification offered is not sufficient. It does not matter whether "all purposes" is followed by qualifying language since, at best, it is ambiguous. It also does not matter that the clause's broad mandate has not been applied, nor that some justification was offered for a specific enforcement of the clause. The provision grants stewards superseniority for all pur- poses, and the enumeration of some of the purposes does not detract from the effects of that forceful statement. Communicating that provision to employ- ees via the collective-bargaining agreement necessar- ily conveys to the employee the impression, without regard to whether the present steward is enjoying any benefits by virtue of the clause, that he can obtain special benefits only if he becomes the union stew- 3 We adopt the Administrative Law Judge's dismissal of Case 8- CB--3449 against the International. It is not a signatory to the collective-bargaining agreement and, equally important. the superseniority clause does not be- come operative unless it is invoked by a local union within 60 days. Subsequent references to "Respondents" refer only to Local 20 and the Company. ard. This impression can only have the effect of en- couraging union activism since being steward is det- erminative as regards access to various benefits un- der the superseniority clause. Thus, it is not controlling whether adequate justification was of- fered as regards "bidding and job preference" be- cause adequate justification for maintaining the clause in its entirety was not forthcoming.' More- over, Local 20's concession that under the clause Steward Rupp could claim an even better route serves to demonstrate that "[w]hile a steward might conscientiously attempt to exercise that preference in a manner benefiting the unit employees, he also might not." 6 Nor is the justification offered for enforcing the clause for job bidding adequate to overcome the pre- sumption of illegality. There is ho indication that Steward Rupp had not satisfactorily carried out his responsibilities without exercising the job preference option. Attaching job benefits in the form of "rights" to union activities is at odds with the Act's most basic policy of insulating one from the other,7' and must be strictly scrutinized. The clause and its exercise do not withstand that scrutiny; accordingly, we find that Respondents have provided superseniority for union stewards going beyond layoff a/nd recall without just- ification in violation of Section 8(a)(1) and (b)(l)(A) of the Act, and have enforced it in violation of Sec- tion 8(a)(3) and (b)(2) of the Act. THE REME0DY Having found that Respondents Local 20 and Pre- ston Trucking Company, Inc., have engaged in cer- tain unfair labor practices, we shall order that they cease and desist therefrom, and take certain affirma- tive action designed to effectuate the policies of the Act. We have found that the disputed steward super- seniority clause is unlawful and we shall therefore order that Respondent Local 20 cease and desist from maintaining and enforcing such a clause in its bargaining agreement with Respondent Company. We shall also order that Respondent Company cease and desist from maintaining and enforcing that clause in its bargaining agreement with Local 20. We have also found that the superseniority clause was unlawfully applied to deny Harold G. Chandler, on See General Drilers and Helpers Local Union No 823, affiliated with the International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of .4,,erica (Caniphell "66" Erpress. Inc. e al.), 232 NLRB 851 (1977). Id ;ii 8S54 See 7he Radio Offipcrs' nmon of the Commercial Telegraphers Union. A.FI /[4 H RBull Srealohip (Co./ L . R.B. 34 U.S. 17 1954). 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or about April 1977, at the Company's Toledo, Ohio, establishment a bid run from Toledo to central Illi- nois, which he would have been awarded but for the illegal discrimination depriving him of his seniority. Consequently, we shall order that Respondents, jointly and severally, make Chandler whole for any loss of earnings he has sustained as a result of the discrimination against him. Backpay shall be com- puted with interest thereon in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 8 Further, to fully remedy the ef- fects of the unlawful conduct, we shall order the Company to assign Chandler, if he so desires it, the driver route he would now hold but for the unlawful granting of superseniority to Steward Rupp, and Lo- cal 20 to notify in writing both the Company and Harold Chandler that it has no objection to assigning Chandler such route. The Company's backpay obli- gation shall run from the effective date of the dis- crimination against Chandler to the time it makes the offer of the new route, while Local 20's obligation shall run from such effective date to the date of its notification to the Company that it has no objection to the assignment of the disputed route to Chandler. Finally, we shall order the Company to cease and desist in any like or related manner from interfering with, restraining, or coercing its employees in the ex- ercise of rights guaranteed by Section 7 of the Act. and that Local 20 likewise cease and desist from re- straining or coercing employees it represents from exercising those same rights. CONCLUSIONS OF LAW I. Preston Trucking Company, Inc., is engaged in commerce within the meaning of Section 2(6) of the Act. 2. Respondent Local 20 is a labor oragnization within the meaning of Section 2(5) of the Act. 3. By maintaining a clause in their collective-bar- gaining agreement according a union steward super- seniority for terms and conditions of employment not limited to layoff and recall, Respondent Compa- ny and Respondent Local 20 have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(l) and 8(b)(1)(A) of the Act. 4. By enforcing a clause in their collective-bar- gaining agreement in a discriminatory manner against Harold G. Chandler by assigning supersen- iority to Union Steward Rupp with respect to the award of the bid run from Toledo to central Illinois, Respondent Company and Respondent Local 20 ' See. generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (b)(2) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Preston Trucking Company, Inc., Toledo, Ohio, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Maintaining and enforcing without adequate justification collective-bargaining provisions with Respondent Local 20 and the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, according a union steward su- perseniority with respect to terms and conditions of employment other than layoff and recall. (b) Discriminating against Harold G. Chandler or any other employee in assigning driver routes, or in any other term and condition of employment other than layoff and recall, by according top seniority to a union steward in the assignment of such terms and conditions of employment without adequate justifi- cation where union stewards do not in fact have top seniority on a basis other than union status. (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 Respondent Local 20 make Harold G. Chandler whole for any loss of earnings he may have suffered as a result of the dis- crimination against him, such earnings to be de- termined in the manner set forth in the section of this Decision entitled "The Remedy," and offer Harold G. Chandler the driver route he would now have but for the unlawful assignment of superseniority to a union steward. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and the route assignment due under the terms of this Order. (c) Post at its establishment at Toledo, Ohio, cop- ies of the attached notice marked "Appendix A." 9 9 In the event that this Order is enforced by a Judgment of a United 466 PRESTON TRUCKING COMPANY. INC. Copies of said notice, on forms provided by the Re- gional Director for Region 8, after being duly signed by Respondent Company's representative, shall be posted by Respondent Company immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other ma- terial. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent Company has taken to com- ply herewith. B. Respondent Teamsters Local 20 of the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Toledo, Ohio, its officers, agents, and representatives, shall: i. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving ef- fect to those clauses in its collective-bargaining agreements with Respondent Preston Trucking Com- pany, Inc., according a union steward superseniority with respect to terms and conditions of employment other than layoff and recall. (b) Causing or attempting to cause Respondent Company to discriminate against employees in viola- tion of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing the employees of Respondent Company 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 Respondent Compa- ny make Harold G. Chandler whole for any loss of earnings he may have suffered by reason of the dis- crimination against him, such lost earnings to be de- termined in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Respondent Company and Harold G. Chandler, in writing, that it has no objection to awarding Harold G. Chandler the driver route he would now have but for the unlawful assignment of superseniority to a union steward. (c) Post at its office and meeting halls used by or frequented by its members and employees it repre- sents at Respondent Company's Toledo, Ohio, facil- ity copies of the attached notice marked "Appendix States Court of Appeals, the words in the notice reading "Posted b) 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." B." 'O Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent Union's representative, shall be posted by Respondent Local 20 immediately upon receipt thereof, and be maintained by Respondent Union for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and return to said Regional Director suf- ficient copies of the attached notice marked "Appen- dix B" for posting by, Respondent Company, if will- ing, in conspicuous places, including all places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 8, in writing, within 20 days from date of this Order, what steps Respondent Union has taken to comply here- with. CHAIRMAN FANNING. dissenting: I would dismiss the complaint for the reasons set forth in my dissenting opinion in Dair'lea. But even if I did agree that in Dairylea circumstances it should be presumptively unlawful to afford superseniority to union stewards for purposes other than layoff and recall, I could find no violation here. The majority ignores the necessity of interpreting the superseniority provision with regard to the total collective-bargaining agreement, and, instead, con- cludes that the clause can only have the effect of encouraging union activism because it establishes su- perseniority for "all purposes." In fact, the only pur- pose for which seniority is determinative, in addition to the admittedly lawful purposes of layoff and re- call, and the only instance in which it has been used, is route selection. In that regard, I am compelled to conclude that the only objective was one that my colleagues, speaking for the majority in Dairylea, rec- ognized as lawful-furthering the effective adminis- tration of bargaining agreements on the plant level by permitting the continued presence of the steward on the job." A steward who is absent cannot fulfill to the best of his ability the responsibilities to the unit he serves. It matters not whether he is absent because of a layoff or a route assignment. Nor should it mat- ter, as the majority emphasizes, that the steward was performing his duties-in some fashion-before in- voking superseniority. In my view, any resulting en- couragement of union activity is far outweighed by the benefit accorded all employees by a steward who can administer the contract with optimum respon- siveness to the unit. " See in 9. siprra l trilalle. 219 Nl.RB at 6s8 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Significantly, this route did not result in increased earnings, and was selected over a run that returns the driver to Toledo five times per week because, Rupp reasoned, the latter would detract from his ability to conduct union business due to excessive commuting time. I would, of course, dismiss the complaint in any event. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce without adequate justification any agreement with Teamsters Local 20 of the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, giving a union steward top seniority no matter what his length of employment with respect to his selection for and the assignment to him of contract benefits or other terms and conditions of employment except for layoff and recall. WE WILL NOT discriminate against Harold G. Chandler or any other employee in assigning driver routes, or in any other term and condition of employment other than layoff and recall, to a union steward on the basis of seniority when such union steward does not in fact have top 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 Union pay Harold G. Chandler any earnings he lost as a result of awarding driver routes to union stew- ards rather than to Chandler, when he had actu- al top seniority in terms of length of service, and WE WILL offer Harold G. Chandler the driver route he would now have but for the unlawful assignment of top seniority to union stewards. PRESTON TRUCKING COMPANY. INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain, enforce, or give effect without adequate justification to any agreement with Preston Trucking Company, Inc., Toledo, Ohio, giving our stewards or other representa- tives top seniority no matter what their length of employment, with respect to their selection for, and assignment of, contract benefits or other terms and conditions of employment except for layoff and recall. WE WILL NOT cause or seek to cause Preston Trucking Company, Inc., to discriminate against Harold G. Chandler or any other employee, by assigning driver routes or any other term and condition of employment other than layoff and recall to a union steward on the basis of senior- ity when such steward does not in fact have top seniority in terms of length of employment. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL jointly and severally with Preston Trucking Company, Inc., make whole Harold G. Chandler for any earnings he lost as a result of awarding driver routes to union stewards rather than to Chandler when he had actual top seniority in terms of length of service, and WE WILL. notify Preston Trucking Company, Inc., and Harold G. Chandler, in writing, that we have no objection to its awarding Chandler the driver route he would now have but for the un- lawful assignment of top seniority to union stew- ards. TEAMSTERS LOCAL 20 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS. CHAUFFEURS. WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE JAMES L. ROSE. Administrative Law Judge: These consoli- dated cases were heard by me on October 20 and 21, 1977.' In general terms, the General Counsel alleged that the Re- spondents have maintained a "superseniority" clause in their collective-bargaining agreement in violation of Sec- tion 8(a)(1) and 8(b)(1)(A) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. and have im- The complaint in Case 8-CB-3449. wherein the International Brother- hood of Teamsters. Chauffeurs. Warehousemen and Helpers of America (herein the International) is named the party respondent, was severed from Cases 8-CA-10890 and CB-3359 because it appeared that an important and complex issue in that case, namely whether the International is a party to the applicable collective-bargaining agreement, might become moot. Given my findings and conclusions infra, I have determined that the complaint in Case 8-CB-3449 should be dismissed on the same basis as the complaint in Cases 8-CA-10890 and 8-CB-3359 without the necessity of determining the contract issue, or those contentions raised by the International in its Motion for Summary Judgment. I therefore. sua sponie, reconsolidate the cases for decision. 468 PRESTON TRUCKING COMPANY. INC. plemented it in violation of Section 8(a)(3) and 8(b)(2) of the Act. Based upon the record as a whole, including my observa- tion of the witnesses, briefs and arguments of counsel, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW i. JURISDICTION Preston Trucking Company, Inc. (herein the Company), is an interstate shipper with its principal office in Preston. Maryland, and terminals in various States throughout the United States, including the facility here involved at Tole- do, Ohio. The Company annually transports merchanidse in interstate commerce from which it receives gross reve- nues in excess of $50,000. All parties admit, and I find, that the Company is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATIONS The parties admit, and I find that Teamsters Local 20 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Local 20) and the International are labor organizations within the meaning of Section 2(5) of the Act. 111 THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Background The Company is one of approximately 9,800 who engage in multiemployer bargaining with agents of the Interna- tional and its various affiliate locals, including Local 20. As a result of such negotiations, and without determining who all the parties to the various contracts are, suffice it to note for purposes of this Decision that the Company and Local 20 are parties to a contract styled: National Master Freight Agreement and Central States Area Over-the-Road Local Cartage Supplemental Agreement, effective April 1, 1976, through March 31, 1979. The General Counsel has alleged that the Respondents have violated the Act by maintaining and enforcing Article 43 (appearing in the Central States Supplement Section) which reads, in material part: Stewards shall be granted super-seniority for all pur- poses, including layoff, rehire, bidding and job prefer- ence, if requested by the Local Union within sixty (60) days after the effective date of this Agreement; but only one (I) steward shall have super-seniority for such purposes. In February and again in April 1977, exercising his su- perseniority, as requested by the Local, steward Robert Rupp bid on and was assigned to a route in preference to other more naturally senior employees. This matter was pled, tried, and argued on basically two levels. First, the General Counsel has alleged that Local 20, by demanding superseniority for its steward, and the Com- pany, by awarding a job bid based upon that superseniori- ty, violated, respectively, Section 8(b)(2) and (a)(3) of the Act. Second, the General Counsel contends that, by main- taining a superseniority clause going beyond layoff and recall, the Company violated Section 8(a)(l) and Local 20 violated Section 8(b)(1)(A). It is alleged and argued that the clause in and of itself is proscribed without regard to any implementation. B. Analysis and Concluding Findings I. The job bidding In the lead case of Dairylea Cooperative Inc.,2 the Board held that superseniority for stewards going beyond layoff and recall is presumptively unlawful; however, the party asserting its legality could establish ii by showing "proper justification." Thus: [l]t has not, however, been established in this case or elsewhere that super seniority going beyond layoff and recall serves any aim other than the impermissible one of giving union stewards special economic or other on-the-job benefits solely because of their position in the Union. That is not to say, of course, that proper justification may not be forthcoming in some future case involving particular circumstances calling for steward super seniority with respect to terms and con- ditions of employment other than layoff and recall. Consequently, there is no occasion here for finding super seniority-even that going beyond layoff and recall to be per se unlawful. The issue ultimately is one of justification. Here the basic facts relating to Rupp's exercise of super- seniority in bidding on his route are not in dispute. Rather, the General Counsel contends that Local 20 has not estab- lished justification for superseniority in route bidding. The thrust here is that Rupp could have done his job as union steward just as well had he been assigned to a different route. Indeed he had performed his duties as steward for some 14 or 15 months before bidding on and receiving assignment to his present route. There can be little question that the position of steward is important to the ongoing operation of a collective-bar- gaining agreement. The services that a steward performs in policing the collective-bargaining agreement inure to the general benefit of all those in the bargaining unit, so much so that it has long been recognized that superseniority for stewards in layoff and recall, even though tying in a job benefit to union activism, is nevertheless legitimate. Thus, as the Board said in Dairylea: [T]he lawfulness of such restricted super seniority is, however, based on the ground that it furthers the ef- fective administration of bargaining agreements on the plant level by encouraging the continued presence of the steward on the job. It thereby not only serves a legitimate statutory purpose but also redounds in its effects to the benefit of all unit employees. [Id at 658]. 219 N RB 656, 658 (1975). (Chairman Fanning dissenting). 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD More specifically, the steward's function here has been amply demonstrated on the record. Local 20 has approxi- mately 12,000 members of which about 5,000 are in the over-the-road division, covering approximately 163 termi- nals. Servicing these employees are but three full-time busi- ness agents. Local 20 maintains, and I conclude, that the steward is the first line union representative and is impor- tant to policing the collective-bargaining agreement. Rupp has been an employee for approximately 5 years and was, at the time he exercised superseniority, 10th in natural seniority. He has been road steward for the Com- pany since his election by fellow members of the bargain- ing unit in November 1975. The Company now has seven "bid runs" which are spe- cific trips on designated days each week. It appears that prior to February 1977 the Company had three scheduled runs and then determined to put on four more. Thus, on January 28, the Company posted the roster of seven desig- nated runs for the purpose of employees bidding on them. On the bid roster is noted, "The above listed bid runs are not guaranteed runs, but will run as regular as freight is available on both ends of the run." Apparently, though not clear from the record, runs are put up for bid each April. Thus, the successful bidders on the January 28 posting would have their designated runs until the April 1977 bidding. On April 2, the same seven runs were posted for bidding with the stipulation that the successful bidders would keep those runs until April 1978. The parties seem to agree, and it will be assumed for purposes of this decision, that the sole basis for determin- ing the successful bidder for each run is seniority. The remaining drivers, that is the 20 or so who do not have scheduled bid runs, work on the "extra board." This means that at I o'clock each Saturday afternoon, the Com- pany will begin calling, in order of seniority, to give assign- ments for the following week. Traditionally, the extra board drivers start from the terminal in Toledo on Sunday evening and are gone the entire week, returning to Toledo the next Saturday morning. They are dispatched from point to point during the week when they are on the road, and do not, as a matter of course, return to Toledo except on weekends. However, the bid route drivers in all cases return to Toledo at least once, and as many as five times, during the week. Harold Chandler, the Charging Party, speculated that Rupp's run pays him $5,000 per year more than other runs. This I specifically discredit. To the contrary, the documen- tary evidence supports Rupp's otherwise credible testi- mony that there is little difference in earnings between any of the bid route drivers and those who work the extra board. Rupp credibly testified that he was having some difficul- ty functioning as the road steward while an extra board driver. Since he was in town only on weekends he had little opportunity to meet face-to-face with company representa- tives. And he had little time to attend to necessary business at the union hall. Rupp's testimony in this regard is corrob- orated by Harold Tierney, the company labor relations di- rector for its western division. Tierney testified that at the initial stages of a grievance it is the steward and not a business agent who is involved and who is the frontline representative for the members in dis- cussions with the Company. During the time Rupp was an extra board driver, Tierney stated, many times Rupp would call from another terminal and they would try to discuss some matters. But such was very difficult over the phone and Rupp's general unavailability affected their ability to discuss grievances effectively. I conclude, based upon the credible testimony of both Rupp and Tierney, that it is important for the steward to be physically present at the terminal from time to time to present grievances and have other discussions with man- agement concerning operation of the collective-bargaining agreement. I conclude that the presence of the steward at the terminal on a regular basis generally benefits unit em- ployees. Just as the Board has held that the presence of a steward when employees are working overtime is impor- tant, thus allowing superseniority for overtime assignment,3 or to prevent downgrading, 4 I conclude that the presence of the steward at the terminal on some regular basis is important. This is not to say that it is impossible for a steward to perform his functions away from the terminal, any more than it would be impossible for a steward who is not active- ly working, because he has been laid off or denied over- time, to perform. This is only to conclude that a steward who can be present at the company premises and the union hall on some kind of regular basis can do his job more effectively. Therefore, the other unit employees are bene- fited more than where a steward cannot, by reason of his job assignment, be at the company premises or union hall regularly. The route selected by Rupp was one which allowed him to return to Toledo 3 days a week and have sufficient time upon his return to attend to union business both at the terminal and at the union hall. Other bids would have had him back to Toledo 5 days a week, but with a schedule such that, taking out for sleeping and commuting to his home, he would have had insufficient time to conduct union business. On balance, I conclude that the specific job on which Rupp bid in order that he might have sufficient time to conduct union business in Toledo is reasonable under the circumstances. Thus Local 20 has in fact sustained its bur- den of justifying the necessity for having a contract clause which grants a road steward superseniority in job bidding. The General Counsel argues that Rupp had successfully performed his duties as steward even while an extra board driver, and in any event he did not exercise superseniority for 14 or 15 months, thus his selection of a bid route was not justified. While I conclude from the facts that Rupp had not necessarily performed his duties as job steward as successfully as he might while on the extra board, the facts here show that until February 1977 there were but three bid runs. Rupp did not have one of them nor is there any- thing in the contract which would indicate that he had a 3 International Union, United Automobile, Aerospace Agricultural Imple- ment Workers of America, UA W, aind its Local 1331, 228 NLRB 1446 (1977). 4 Parker-Hannifin Corporation, 231 NLRB 884 (1977). 470 PRESTON TRUCKING COMPANY, INC right by exercising superseniority to bump into one of those runs. Finally, the General Counsel contends that, by receiving assignment to the particular bid run he did, Rupp was the beneficiary of substantially increased earnings. Rupp testi- fied that he has not earned more. While it really makes little difference, the record tends to show that drivers earn approximately the same regardless of their runs. Neverthe- less, it is also clear that the run which Rupp has is more desirable than some of the other bids, or extra board work generally. Thus, I decide this matter, not on grounds that Rupp did not receive a significant on-the-job benefit, I be- lieve he did, but because I conclude Local 20 demonstrated a sufficient justification for Rupp to have his particular bid so as to rebut the presumption of illegality for superseniori- ty in job bidding. 2. Maintenance of the contract clause Beyond this specific factual situation, the General Coun- sel contends that maintenance of a contract clause in the language here necessarily intertwines union activism with many employee benefits, and without more is unlawful. In effect, the General Counsel argues that even though Local 20 has established justification for one implementation of superseniority, there are others for which justification has not been shown. Hence as to every possibility, the pre- sumption of illegality has not been rebutted. Research has disclosed no case holding unlawful a su- perseniority clause without regard to a specific application. In those cases where a broad superseniority clause has been found unlawful, there was evidence of a particular application which was found not justified. 5 To the contrary, in Auto Warehousers. Inc.,6 in affirming Judge Lipton's Decision. the Board indicated that it would not find the mere existence of an extended superseniority clause to be a violation. Noting that the Board earlier sug- gested that proper justification for clauses going beyond layoff and recall might be forthcoming, Judge Lipton con- cluded, "It is my view that within a multi-employer bar- gaining arrangement, the particular circumstances in justi- fication of broad super seniority for stewards may vary from employer to employer." There is certainly nothing in Dairvlea or subsequent cases to suggest that broad superseniority, absent a specific implementation, is unlawful. On the other hand, it is cer- tainly conceivable that a superseniority clause could be so drafted as to admit of no lawful application. In such a case, the presumption of illegality could not be rebutted and without more a violation established. But such. I conclude. is not the case here. E g., Dairvlea Cooperartive. Inc, supra. .4urto u arehoiuscr In i inftral (, e; eral Drivers and Helpers Local nion Vo .I23, affiliated aith the Internati l,l Brotherhood of Team.vers. (hauffe urs, 4 arehousemnen and Hielpe r, I 4- raltri ia (Canphell "66" Epress. Inc. et a i. 232 NLRB 851 (1977 ( haiirmain I in- ning dissenting): ChaufJeurs. Teatmsters and Hetlper cI ..ro, I'. %i . U; , ,I Nec Hampshire. a w Internn al Brotherhood of' Ilaozntrr ( hauofi uro. B arehousemen and Helpers of IAmeriia, 230 NlRB s81 1977) (( hairman Fanning dissenting): Perrfecion A.4ltorotte Produ, (Clrpration,. 212 NI RB 690 (1977) (Chairman Fanning dissenting) 6 227 NL RB 628 t1976). Necessarily, determination of whether or not this super- seniority clause could not be justified in some respect de- pends upon a fair interpretation of the clause. The starting point for such an interpretation must be that an unlawful contruction will not be presumed. As the Supreme Court said in N.L.R.B. v. News Svndicate Co., Inc., et ae.7 [Wle will not assume that unions and employers will violate the federal law, favoring discrimination in fa- vor of union members against the clear command of this Act of Congress. Application of this clause does not have to be unlawful. Any provision must of necessity be read in conjunction with the rest of the contract. It does not exist unto itself, but rather is part of the whole agreement between the par- ties. Thus here, the phrase, "Steward shall be granted su- perseniority for all purposes" must be defined in terms of which contractual benefits are dependent upon seniority. Obviously. if there is no contractual employment benefit to be derived from being the senior employee, then whether a steward is senior makes no difference, and to designate him so could not violate the Act. In Dairylea, the Board noted that the superseniority clause operated, [W]ith respect to all contractual benefits where senior- itv is a consideration. Thus, under these contracts a steward is. among other things. given preference in the assignment of overtime, in the selection of vacation period, and in the assignment of drivers routes and other positions, with the preference extending to the selection of shift, hours, and day off. [219 NLRB at 657]. Under that contract. seniority was the determinative fac- tor "in securing a rather wide range of on-the-job bene- fits." Here such does not seem to be the case. The General Counsel has brought to my attention no other provision wherein seniority is a consideration for an employment benefit, much less the determining factor. Nor does perusal of this extensive document disclose any, other than with regard to vacations. But even there, I conclude that a fair reading does not support a conclusion that seniority is the determinative factor, or even particularly important. Sec- tion 3 of article 62 reads: The vacation period of each qualified employee shall be set with due regard to the desire, seniority, and preference of the employees, consistent with the effi- cient operation of the Employer's business. It is clear that assignment of vacation time to the em- ployees is substantially in the discretion of management. \While seniority will be considered, other factors will be given at least equal if not greater consideration. I cannot conclude therefore that by having superseniority a union steward necessarily gets preference over all other employ- ees with regard to vacation time. On the face of this contract then, and absent any evi- dence to the contrary. it is my conclusion that seniority is determinative only with regard to those items set forth in ·( [ t oS ,t S 6h9 9 (I961 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the seniority clause itself layoff, recall, bidding, and job preference. Nor will the Board strictly construe such clauses to find a violation even where on its face seniority would be deter- minative for some benefit not shown to be justified. Thus in McGregor- Werner 9 stewards were granted superseniority, in addition to layoff and recall, "for shift preference." Without finding that shift preference had been justified, the Board concluded that "the shift preference provision is meaningless, in operative, and has been amended out by practice." Thus the clause itself was found not unlawful. the case then turning on a specific application which the Board found justified. Here Rupp testified that he has received no benefit from being steward other than the bid run. The General Counsel brought forth no evidence that Rupp, or any other steward exercising superseniority under this clause, in fact has been granted an employment preference other than receiving a bid run. Thus, while alleging in the complaint that the clause grants stewards employment benefits including laN- off, recall, vacation preference, job preference, starting time preference. and overtime, there is no evidence that any benefit other than layoff, recall, and job preference has ever been governed by superseniority. Nor is there evi- dence that the parties meant for stewards to be able to secure preference other than in situations of layoff, recall, or job bidding. I therefore conclude that on the record before me, the only employment benefits the steward may derive by exer- cising his superseniority relate to layoff, recall, and run bidding (bidding and job preference being identical in this situation). ° Under the Dairllea exception to Radio Offi- cers' Union of thel (lommerctld Telegraphers Union, A. F. L.. . N.L.R.B.,It a contract clause which gives a union steward gIn (lampbell "Nh," Erx,pr.s, .upra. fn. 5, the identical supersenioritt clause was' considered. hut there was evidence that the steward did in fact enjoy a wide range of employment benefits as a result of his superseniorei) And there was no justification, from the factual situation presented. for su[erseniority going besyond layoff and recall. ,1lOi,,,, Pi, lture I,aIoraiorv ittechnltunis, LoIal '780. Internalional A1thanm of 7 heatri cal Srtage .tnplo iev anld M,,tng Picture Op'rutrt Of the I triicd Stlte , anld (anada. .4lt. ('10 (McGrqgor-Werner, In,.). 227 Nl.RB 558 (1 9 76). I('(f .41ied Supermnarlts. Inc . 233 NL.RB 535 (1977). where the applhcl- tion of superseniornit ilolvled job preference but there was no showing Ithat such nailde the sIewa;rd ain more available superseniority for purposes of layoff and recall is valid. This leaves job preference. Having concluded that in fact Local 20 established justi- fication for the job bidding, I therefore conclude that the General Counsel has not established that the clause here is unlawful. Finally, in this regard, the General Counsel argues that the clear language of the clause necessarily has the effect of encouraging and promoting union membership, loyalty or activism, because this language clearly: communicates to the employee-reader of the provision the impression that its benefits (whether or not the clause is presently operative-i.e., whether or not the present union steward is presently enjoying the listed or inferred benefits) can be obtained only if he fulfills the underlying conditions-here, if he becomes a union steward. I find this argument an unpersuasive reason for conclud- ing that the clause should be found unlawful absent a spe- cific unjustified application. If it is assumed that employees know the wording of the superseniority provision it must also be assumed that the employees know the rest of the contract. But nowhere else in the contract is any on-the-job benefit given by virtue of seniority other than layoff, recall, and job bidding. Thus, the General Counsel's fear that the mere existence of the language in this clause would have a chilling effect is necessarily neutralized by the fact that specific benefits to be determined by seniority are set forth in the same clause and are well defined-layoff, recall, and job bidding. Having concluded that the superseniority clause on its face or as applied in this factual situation is not unlawful, I further conclude that the complaint ought to be dismissed in its entirety, and will so recommend. Since I have re- solved the substantive allegations in favor of Local 20, it follows that the complaint against the International should be dismissed for the same reasons. I will so recommend, without resolving the question of whether the International is a party to the contract, or the other bases on which the International contends the complaint ought to be dis- missed in its motion for Summary Judgment. [Recommended Order for dismissal omitted from publi- cation.] 1 347 U.S. 17 (1954). 472