General Drivers and Helpers, Local 229

GENERAL DRIVERS AND HELPERS , LOCAL 229 General Drivers and Helpers Local Union No. 229, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen And Helpers of America (Associated Transport, Inc.) and Bernard Russell and Michael Homa. Case 4-CB-1588 September 14, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 21, 1970, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceed- ing, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the, Charging Parties filed exceptions to the Trial Examiner's Decision and supporting briefs. Respond- ent filed briefs in support of the Trial Examiner's Decision and in -answer to the exceptions of the other parties. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recom- mendations as modified herein.' The Trial Examiner found, and we agree, that Teamsters Local 229, the bargaining agent for the employees at the Employer's Scranton, Pennsylvania, terminal, did not violate Section 8(b)(2) and (1)(A) of the Act by its conduct in causing the Employer in October 1968 to move Michael Homa and Bernard Russell, two "Binghamton men,"2 to a lower position on the Scranton seniority roster. In so finding, the Trial Examiner held that Teamsters Local 229 was ' We disavow the Trial Examiner's statement that there seemed to be a studied effort by the General Counsel and Respondent to suppress evidence at the hearing ' Their employment at the Employer's Binghamton , New York, terminal ceased when the Company closed that facility in January 1964 Although they were thereafter employed at the Employer's Scranton terminal, they continued their residence in the Binghamton area and retained their membership in Teamsters Local 693 which had jurisdiction over the latter area 631 not motivated by a desire to penalize the "Binghamton men" because they belonged to Teamsters Local 693 and that employee residence constituted a legally permissible basis for giving preference to the Scranton terminal employees represented by TeamstersLocal 229. The General Counsel and the Employer contend that residence could not have been a factor in deter- mining an employee's position on the seniority list because there was no adverse effect on the seniority of those employees' on the list whose telephone num- ber indicates that they resided outside the Scranton area. Even if it is assumed that some employees on the list did live outside the Scranton area, this would have no bearing on the outcome in the instant case as we find, for reasons which follow, that Team- sters Local 229 had a legally permissible basis other than residence for its conduct with respect to Homa and Russell. The record shows that under the Central Pennsylva- nia Motor Freight Agreement Teamsters Local 229 has been for a number of years the representative of the employees at the Employer's Scranton terminal. Although the Trial Examiner correctly observed that from "first to last" all reference to Homa and Russell was in terms of their being "Binghamton men," we find that this geographic designation was a convenient way of identifying employees who were transferred from the Binghamton unit which was represented by Teamsters Local 693. As the "Binghamton men" constituted additions to the Employer's Scranton unit, it is clear that the reduction in their seniority and the employment preference granted to members of Teamsters Local 229 were prompted not by their Binghamton residence but rather by the desire to protect the integrity of the unit of Scranton terminal employees. It is settled that a bargaining representative for the employees of a particular unit has the right to give an inferior seniority ranking to employees trans- ferred from another unit.' Where, as here, a labor organization takes a position upon noncapricious and nonarbitrary considerations with respect to the seniori- ty of two sets of employees, there is not statutory bar against placing one set at a disadvantage because they were transferred from another unit.' Accordingly, as the evidence establishes that the change in the seniority rights of Homa and Russell resulted, not from an arbitrary discrimination based on their membership in Teamsters Local 693, but from the need to protect the integrity of the Scranton ' Other than Homa and Russell 4 Schick v N L R B, 409 F 2d 395 (C A 7) Ford Motor Company v Yuffmann, 345 U S 330 5 Simon Levi Company, Lid, Sterling Liquor Distributors, Inc , 181 NLRB No 124, Humphreyv Moore, 375 US 335 185 NLRB No. 84 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminal unit represented by Teamsters Local 229, we find that that latter's conduct did not violate the Act. We shall therefore order the dismissal of the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts the Trial Examiner's Recommend- ed Order and orders that the complaint herein, be, and it hereby is, dismissed in its entirety. MEMBER BROWN , concurring: I concur in the result. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner. A hearing in the above-entitled proceeding was held before the duly designat- ed Trial Examiner at Scranton, Pennsylvania, on February 24 and 25, 1970, on complaint of the General Counsel against General Drivers and Helpers Local Union No. 229, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent, or Local 229. The charge was filed on March 25, 1969, and the complaint issued on December 15, 1969. At issue is whether Local 229 caused Associated Transport, Inc., herein called the Company or the Employer, to discriminate against certain of its employees in a manner that constituted a violation of Section 8(b)(2) of the Act. Briefs were filed by all parties Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Associated Transport, Inc., a Delaware corporation, is engaged in over-the-road (long haul) and intracity (local cartage) truck transfer of freight in a number of States. Among its locations it operates terminals in Binghamton, New York, and Scranton, Pennsylvania. Its gross receipts for freight transportation in interstate commerce totals many millions of dollars in a single year. I find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that the Respondent, Local 229, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issue The single event which gave rise to this proceeding occurred at the Company's Scranton , Pennsylvania, termi- nal, also called the Dunmoor terminal, late in October 1968. Among the 150 or so employees then working at that terminal, 6 were known as the Binghamton men; this was because they lived in Binghamton , a city 60 miles away in New York State, and had for many years worked at this same Company's Binghamton terminal. The Respondent, Teamsters Local 229, bargaining agent for the Scranton terminal men, caused the Company to move the Binghamton men to a lower position on the seniority roster than they had enjoyed for 4 years, with consequent substantial loss of earnings to them . In conclusionary lan- guage the complaint alleges this conduct by Local 229 caused the Transport Company to violate Section 8(a)(3) of the Act with respect to the Binghamton men, and therefore constituted a violation of Section 8(b)(2) by the Local. It also charges the Respondent with having unlawful- ly coerced these men within the meaning of Section 8(b)(1)(A), but it seems clear , from a reading of the com- plaint, that this last allegation is intended as suggesting a derivative violation flowing from the violation of Section 8(b)(2). At the hearing the question arose: Why did Local 229 want the Binghamton men placed lower on the seniority roster? The matter of geography was obvious all over the record as it was being made; these men had always lived, and still live, in Binghamton. They also long had been, and remain, members of Teamsters Local 693 of Bingham- ton; they never did join the Scranton Local 229. On this critical point as to the reason, or the motivation, or the necessary effect of the Respondent Union's conduct, the complaint says only it "was based on arbitrary, discriminato- ry, and bad faith considerations " Absent other evidence to prove an unfair labor practice, the fact of discrimination in employment-conceded in this case-proves too little in this proceeding. See Radio Officers' v. N.L.R. B., 347 U.S. 17. The other two phrases-arbitrary and bad faith- being illusive and nebulous, the General Counsel was asked to state his contention as to the Respondent 's basic purpose, what it sought to achieve by its action . He equivocated, and stated no definitive objective . In his brief the basic contention is changed, no reference at all is made to the fact of Local 229 having caused the Employer to do anything, and the issue is said to consist only of the question whether the Respondent Union acted fairly towards all the employees covered by its contract at the Scranton terminal The Respondent offered no explanation of why it took steps to have the seniority status of the Binghamton men lowered. Indeed, its administrative officer, over whose signa- ture the Union's demand was made upon the Company in 1968, insisted he had no idea why all this was done. And the Respondent's counsel, who represented Local 229 also at the time of the events, refused to stipulate to the authenticity of his own signature, when , as attorney of record in a District Court civil suit, he signed a settlement agreement on behalf of Local 229. But there is no duty GENERAL DRIVERS AND HELPERS, LOCAL 229 633 upon a respondent to come forth with facts requisite to round out the case for the prosecution ; that is, there is no duty to go forward unless there be a presumption that because a union did it, it follows the act was illegal, and that concept was long ago swept away. Local 357, Teamsters v. N.L.R.B., 365 U.S. 667. The burden rests essentially upon the General Counsel, and it is an affirmative one: Does the preponderance of the substantial evidence on the record as a whole prove the conclusionary allegation of the complaint? Glen Raven Silk Mills, Inc v. N.L.R.B., 203 F.2d 946 (C.A. 4). In an analogous situation , a Trial Examiner, in the absence of supporting evidence, equated "local men" with local union men, and the Board rejected his inference as unwarranted. Bricklayers, Masons and Plas- terers'International Union, Local 2, 135 NLRB 323. The Facts The essential facts are not in dispute. Before 1964, Associ- ated Transport for some years operated terminals in both Binghamton and Scranton; there are many other terminals in other cities, but how far away they are and what driving is done elsewhere was not disclosed Teamster Local 693 operates in Binghamton and represented those employees, Teamster Local 229 operates in Scranton and is bargaining agent for that terminal . On January 31, 1964, the Company closed the Binghamton terminal. Some of the work previous- ly performed there-dock work, intracity peddling delivery, and over-the-road haulage-was transferred to Scranton, how much of the work was moved, again no one bothered to prove. Michael Homa and Bernard Russell were drivers out of Binghamton, their seniority of employment with the Company going back to 1939 and 1948 respectively. They were given layoff slips, paid their vacation money, and, apparently, simply released outright . There is indication this is what happened to all the Binghamton employees. They were offered work in and out of Scranton, but with seniority positions at the bottom of the seniority list for that terminal. What with the distance from their homes- 50 or 60 miles , the uncertainties of employment-it was a when-and-if, on-call situation for them, and the calls coming only for a day or two of work each week, in the lesser paying jobs at that , they found the offer undesira- ble. There were then over 150 men higher than they on the seniority list. Russell never accepted any of these calls, and Homa only came twice and then found work elsewhere. Local 693 took an interest in the Binghamton men, while Local 229 preferred to have the Scranton men continue to enjoy their preferred status on the Scranton seniority list, what the Company then thought of all this does not appear . In any event, there was an arbitration proceeding over the matter . Both the Unions and the Company submit- ted the question to the Eastern Conference Joint Area Committee, of the Teamsters International Union in Wash- ington, by written agreement on July 30, 1964; the parties agreed to be bound by the decision of this committee. The decision reads as follows: The Panel in executive session , a motion was made, seconded and passed that as of February 1, 1964, the employees of Associated Transport at the Bingham- ton, N.Y. terminal, whose work was transferred to the Associated terminal in Scranton , Pa. shall be trans- ferred under Article 5, Sec 8(c)2 of the Central Pa. Local Motor Freight Agreement. Thus, for example, if 10 new jobs were created in Scranton by the transfer of work from Binghamton to Scranton , then 10 Bing- hamton employees shall be given the right to transfer and their seniority shall be dovetailed with seniority of the employees in Scranton In August the Company implemented the decision and dovetailed 11 Binghamton men into the Scranton seniority list; apparently this was the number of openings warranted by the amount of work transferred from one terminal to another and the number of men who then wished to go to work in Scranton . Russell moved up to position number 14 and Homa to position number 5 . They worked regularly out of these slots into the fall of 1968 Neither of them ever changed his residence from Binghamton. Local 229 and the Scranton employees never accepted the arbitration decision in principle On September 28, 1964, the Local appealed the decision to the International Union's General Executive Board, but the appeal was denied on the grounds that the matter was one of "collective bargaining." On October 28, 1964, the Local requested formal review and reversal of the decision, but the Commit- tee ruled there was no new evidence and reaffirmed its earlier decision. And on March 16, 1965 , a number of Scranton employees brought suit in the United States District Court, Middle District of Pennsylvania, to force rearrangement of their seniority list so as to place the Binghamton employees lower down , in effect to ignore their prior employment with the Company at the Binghamton terminal . The plain- tiffs identified themselves as "Michael Fiore, Louis Morrell, Joseph Katchmar, Joseph Yanora, Edward Guidutis, on behalf of themselves, and behalf of all persons similarly situated who are presently members of Scranton , Pa., Local No. 229 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, who are members of the same and employees of Associated Transport, Inc., on January 31, 1964." The named defend- ants were: Associated Transport, Inc., General Drivers and Helpers Local Union No. 229, the International Brotherhood of Teamsters, and the Eastern Conference Joint Area Com- mittee. There seemed to be a studied effort throughout the hearing , by both the General Counsel and the Respondent, to suppress any evidence as to what happened in the course of that litigation in the civil suit during the following 3 years There is nothing to indicate the merits of the complaint were ever passed upon by that Court. On October 23, 1968, four of the litigants, all but the Eastern Conference of Teamsters, signed a stipulation and agreement, reading as follows: That the General Drivers & Helpers Local Union No. 229 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, through its business agent, shall notify Associated Transport, Inc. of the rearrangement as of October 4, 1969 seniority list for the Scranton terminal, whereby approximately six men known as "Binghamton men" 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are to be rearranged on the seniority list for October 4, 1968 in consecutive order immediately junior to J. Mecca, No. 138, clerk [clock] No. 55683. In keeping with the stipulation Local 229 wrote the following to the Company on October 24, 1968. In accordance with the understanding and agreement arrived at by and between all parties involved, through the four (4) Attorneys, this is to officially notify you that re-arrangement of the current seniority list for the Scranton Terminal shall be made , whereby approxi- mately six (6) men known as "Binghamton men" are to be re-arranged on the seniority list as soon as possible in consecutive order immediately junior to J. Mecca, No. 138, Clock No. 55683. The Company posted this letter as a notice to all employ- ees at the Scranton terminal , and on November 1 gave it full effect. It appears that by this time only 6 of the original 11 Binghamton men remained at Scranton; all 6 were placed in much lower positions on the seniority roster. In consequence both Homa and Russell could only obtain and in fact thereafter performed only dock work, employment which brought them about $50 per week less in wages than they had long been earning . It was they who brought the charges and their loss of earnings is said to have been unlawfully coerced by Local 229.' Analysis and Conclusion The critical question of fact upon which the final answer to the case must rest will be better understood if first certain minor questions be resolved . In the trucking business in America, with the Teamsters Union so widely in the picture, senionty is the lifeblood of wages. The man who has been longest in the company 's employ gets first choice of runs, or first call to whatever work is available in the ebb and tide of the amount of trucking to be done. The last person to come on the job must be satisfied with the less desirable assignments , or, from time to time, with no work at all, if the more senior men have taken it all. The Binghamton men, in 1964, wanted to be credited, in Scranton, with all the years they had worked for Associat- ed Transport , albeit it had been performed elsewhere. But of the 150 men then working in Scranton , only about 5 had seniority dates earlier than that of Homa, and only about 12 earlier than that of Russell . This meant that with Russell and Homa so dovetailed into the seniority roster, all the Scranton men below them suffered to the extent of having lower pay, or lesser quantity of, available work. As a group the Scranton employees wanted Homa and Russell, indeed all the Binghamton men, to go to the bottom of their list, as though they were just then starting to work for this Company . This is the heart of the dispute which separated the Scranton men from the Binghamton men starting in February of 1964, when Bing- hamton was closed, and reaching into the day in 1969 when Homa and Russell filed their charge with the Board. ' A third Binghamton man, Hankey, was also originally named in the complaint as having suffered the same discrimination , but his name was withdrawn from the case on motion of his attorney , with approval of the General Counsel From February to August of 1964 , the Scranton men won; from the day of the arbitration committee decision late in 1964 to October of 1968 the Binghamton men had it their way; and from November of 1968 to about a year later when a new terminal was opened in Binghamton and Homa and Russell went back home to work, the pendulum was back in its old position. Counsel for the Respondent hinted at a number of defenses during the hearing but did not exactly articulate them. One is that it was not Local 229 at all that did this to Homa and Russell , but the employees, and that therefore there can be no unfair labor practice finding against the "labor organization or its agents." The proof here is said to be the fact Local 229 was named a formal defendant in the civil suit . But if all the members together , literally acting in concert in matters affecting conditions of employ- ment, are not "the" union, who is the union? There can be no question on this record but that the aim which the Scranton employees as a group sought to achieve was exactly the one on which Local 229 never gave up. It was Local 229 , in its own name, which twice tried to win reversal of the Eastern Conference arbitration decision. It was a play on words for the nominal plaintiffs in court to have named their own union a defendant , for both . wanted the relief requested in the complaint . And when 3 years later, Local 229 ostensibly "settled" with its own members, it was agreeing to precisely what it had been insisting was right all along. This was union pressure on Associated Transport . In the context of the total picture there is no reason for not crediting the uncontradicted testimony of Homa that when told he was to be relegated virtually to the bottom of the seniority list, he asked Mr. Birtel, the manager of the Scranton terminal , why, and was told "the company didn 't have- anything to do with it . . . the union told him [Mr . Birtel] that I was to be put back behind Mecca " Another contention is that this whole question has been adjudicated in the District Court and may not be reopened in a Board proceeding. The argument fails for a number of reasons, foremost of which is that there never was a decision on the merits of any issue in the Court. The District Judge signed the settlement agreement as "approved" by him, but he may as well have been giving his blessing to the end of protracted litigation, and a plague on both your houses, as passing judgment . In any event, there was no judicial determination . But even if there had been, the question which Local 229 was raising was: Where, on the Scranton seniority roster, should Homa and Russell be placed? This is not the question in this proceeding, where the issue is whether the conduct of Local 229, however it chose to "cause" the employer, constituted a violation of the Taft -Hartley Act . This matter did not, and could not concern the District Court. And finally, the Respondent also argues Homa and Russell should have intervened in the civil suit , should have appealed-how and where does the stranger to a Federal Court suit appeal for reversal of an amicable agreement of the parties-or done something other than file charges with the Board. The argument merits no answer; failure by the employee victim of an unfair labor practice to GENERAL DRIVERS AND HELPERS , LOCAL 229 stay the hand of the wrongdoer , could hardly serve as defense for the respondent. Turning to the contentions of the General Counsel in support of the complaint, one is that it was unlawful of Local 229 to refuse to abide by the arbitration decision of 1964. The Respondent had committed itself in writing to hold still if the question were resolved against it; it did so for 4 years, but when it reneged on its agreement, and compelled the Company to do otherwise-pure econom- ic discrimination against Homa and Russell-it acted in bad faith ; this is said to be arbitrary conduct, not a nice thing to do, quite like a contract violation . The position is not unlike that taken by John Durkin, the business manager of Local 229. He said the reason why Local 229 acted the way it did was because a lawyer had told it to do so. The General Counsel says the reason why the Union's act was wrong is because somebody else said it was wrong to do it. But both statements beg the real question-which is why did the Union do it. The General Counsel 's argument here is no different than saying that the question of Homa's and Russell's correct position on the seniority list had been agreed between the Union and the employer, quite as though the arbitration decision was a part of the collective-bargaining agreement, and that the unfair labor practice is seen in the Union's refusal to abide by the contract . This contention must fail also. It is a long established principle of Board law that violations of the contract by the employer do not constitute unfair labor practices under this statute "The Board is not the proper forum for parties seeking to remedy an alleged breach of contract or to obtain specific perform- ance of its terms." United Telephone Co. of the West, 112 NLRB 779. See also National Dairy Products Corp., 126 NLRB 434; Hydes ' Super Market, 145 NLRB 1252 Had Associated Transport done this, of itself dropped the Binghamton men to the bottom of the list in violation of the "agreement ," if agreement the arbitration decision was, it would not have been unlawful under Section 8(a)(3) of the Act But the law is no less clear , in the language of the Statute, that for conduct by a labor organization to constitute a violation of Section 8(b)(2), that which it caused the employer to do must constitute a violation of Section 8(a)(3). "It shall be an unfair labor practice for a labor organization or its agents . . . to cause or attempt to cause an employer to discriminate against an employee in violation of Section (a)(3) " It follows in this case, if the assertion be-as the General Counsel suggests-that Local 229 did wrong by violating the agree- ment, or caused the employer to violate the agreement, that no misconduct cognizable by the Board occurred. _ But an employer may nevertheless violate this statute, regardless of contract terms, when it prejudices a man by lowering him on the seniority lists, if its purpose is one prohibited by law . If Associated Transport wanted to build up the membership of Local 229, if it simply wanted members of that distant Local 693 out of its plant altogether, and made Homa and Russell's working condi- tions intolerable to achieve that end , the fact that it thereby also violated the contract would not save it at all. This would be coercion literally "to encourage or discourage membership in any labor organization ," and a direct viola- 635 tion of Section 8(a)(3). By like reasoning, if Local 229 caused the Company to do this to force Homa and Russell into its membership, or because they were not already members its conduct in causing the unlawful discrimination would be prohibited by Section 8(b)(2). And this makes clear the real issue of the case: Why did Local 229 put pressure upon the Company to alter the seniority list? In the light of all the relevant evidence, I find that the reason was because Homa and Russell, as well as the other men then in their position, lived in the other city; were not residents of the Scranton area. The Board has held that for a union to cause a preferential arrangement of work assignments on this ground is not unlawful , and I shall therefore recommend dismissal of the complaint. In Local No 98, Operating Engineers, 155 NLRB 850, it was a matter of preference for Greenfield area men as against " Boston men," and the Board dismissed the complaint . In Union No. 28. Bricklayers, Masons and Plasterers International , 134 NLRB 751, out- of-town men were released before "Erie men," and the Board held that the fact all the Erie men were members of the respondent local of itself was not enough to supply the necessary affirmative proof that the purpose in the discrimination was to weed out nonmembers . From first to last all reference to Homa and Russell , and the others who came to Scranton with them , was in terms of "the Binghamton men." This is how they were identified in the 1964 arbitration decision , in the civil suit brought in 1965, in the settlement agreement among the lawyers at the end of that litigation, and in the Respondent's written request to the Company which directly lead to the changes of seniority status. There is no evidence worthy of note that the question of membership in one local or the other was a subject of discussion at any point . It is true Local 229 did not invite the Binghamton men to join, as it could have under the Scranton contract , but both Homa and Russell conceded they did not attempt to change their membership from Local 693 to Local 229 . Everything points to the fact it was their non-residence in the area that the Respondent Union deemed of importance. It is only in the caption of the District Court suit that the Scranton drivers identified themselves as "members " of Local 229, but in the light of the total evidence this must be considered no more than a convenient descriptive phrase , certainly insufficient to offset the affirmative proof of geographic concern I am unable to distinguish this case from the precedent decisions. It is not "obvious," as the General Counsel would have it, that "lack of membership in Local 229" was a motivating cause in that union's action, for in that event in would have been a simple matter to demand their total dismissal under the union-shop clause of the contract . The Respondent did not do this. And it is a bootstrap argument to say that their failure to apply for membership proves that Local 229 would have rejected their application. There is nothing in the Scranton contract covering the seniority rights of out-of-town employees, and it cannot be said that the decision of Local 229 was not "based on objective factors which would persuade a rational decision maker." Nor does the Respondent's action become "arbitrary," "capricious," "unfair," because it placed the Binghamton 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men below even those Scranton employees who came to CONCLUSION OF LAW work at that location after Homa and Russell started coming from another city. They too, the recently arrived Scranton The Union has not engaged in the unfair labor practices residents, fell into the geographic category which may justifi- alleged in the complaint ably be set apart from out-of-staters, or out-of-towners. If, as the Board has held, a geographic distinction is a RECOMMENDED ORDER permissible basis for preference in employment, the length of service of some in the group is an irrelevant consideration The complaint herein should be, and hereby is, dismissed.