Perfection Automotive Products Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perfection Automotive Products Corporation and Robert J. La Chance. Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Robert J. La Chance. Cases 7-CA-12830 and 7-CB-3509 September 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 15, 1976, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting brief, and the General Counsel filed an answering brief to said exceptions. 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 Respondent Employer, Perfec- tion Automotive Products Corporation, Livonia, Michigan, its officers, agents, successors, and assigns, and the Respondent Union, Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. CHAIRMAN FANNING, dissenting: Here the Board, by adopting the Administrative Law Judge's Decision, finds that the continued maintenance of a contract clause granting shop stewards superseniority for all purposes is unlawful because insufficient justification is shown. As stated in my dissent in Dairylea Cooperative, Inc., 219 NLRB 656, 661 (1975), "I cannot accept my colleagues' presumption that a collective-bargaining agreement distinguishing between the benefits re- ceived by union stewards and other employees in the unit the steward serves violates the Act." The applicability of this initial sentence from my dissent 232 NLRB No. 109 is intensified here, where the contract clause alone, without having been applied on behalf of the steward, is at issue. As in Dairylea, the clause in question was negotiat- ed in good faith by the parties and approved by the employees, all of whom, except probationers with less than 30 days' employment, are required under a valid union-security clause to become and remain members in good standing with the Union. Addition- ally, the employees here have the right to elect their stewards as well as the opportunity to be elected steward. Moreover, the Respondent Union has shown here that the existence of the clause, if necessary to apply, would ensure a steward's contin- ued presence on the job during overtime periods to further the effective administration of the collective- bargaining agreement by prompt, on the spot resolution of disputes thereunder and the saving of both time and money by the avoidance of the formal use of the grievance procedure. There is thus reasonable basis for approving the clause to the extent, with respect to these parties, that the administration of overtime policies is facilitated. The illegality of the superseniority clause is premised upon maintenance of the agreement. The steward in question, because of his "actual" seniority as found by the Administrative Law Judge, has had no benefit from the admittedly broad superseniority clause contained in the bargaining agreement. Nevertheless my colleagues find a violation, appar- ently because of the mere existence of the clause. However, in IATSE, Local 780 (McGregor-Werner, Inc.), supra, a panel majority did not find it necessary to find a violation where a clause permitting shift preference had never in fact been used. The clause was held inoperative due to lack of use. I concurred in that dismissal and would, of course, concur in a dismissal here grounded on the clause not having been applied. In Dairylea a Board majority saw "no occasion for finding super seniority-even that going beyond layoff and recall-to be per se unlawful." Therefore, I question the wisdom of what in this case I view as a per se approach. I For the reasons fully set out therein, we adopt the Administrative Law Judge's Decision. Chairman Fanning in his dissent refers to the fact that the steward, Turner, because of actual senionty did not benefit from the supersenionty provisions of the contract. However, as stated by the Administrative Law Judge, what is relevant is "the inherent tendency of such clauses to discriminate against employees for union related reasons." In addition, we believe that Chairman Fanning's reference to Motion Picture Laboralory Technicians, Local 780, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, AFL CIO (McGregor-Werner, Inc.), 227 NLRB 558 (1976), is misplaced. Not only was the shift preference supersenionrity clause never implemented, but it was also shown to be a dead letter. 690 PERFECTION AUTOMOTIVE PRODUCTS DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This consolidated proceeding was heard before me at Detroit, Michigan, on September 7, 1976, pursuant to charges duly filed and served and consolidated complaint issued on April 29, 1976. The Respondent Union timely filed its answer thereto. The Respondent filed no answer prior to the hearing and did not appear at the hearing in person or by counsel. The Charging Party, La Chance, although present prior to the opening of the record, left before the hearing commenced and did not thereafter return. At the opening of the hearing the General Counsel moved for summary judgment against the Respondent Employer because it had filed no answer to the complaint, did not appear at the hearing, and its counsel had earlier indicated to General Counsel that no answer would be filed and no appearance would be made by the Respondent Employer. Counsel for the Respondent Union then proffered the Employer's answer to the complaint (with copy to General Counsel), signed by the Employer's attorney and dated September 7, 1976. The Union's counsel explained that he had been requested to deliver this document by the Employer's counsel who reported to him that he could not be present due to other commit- ments, and further explained that he was merely perform- ing a courtesy and did not wish to appear as counsel for the Respondent Employer. General Counsel, counsel for the Union, and I examined the answer offered on behalf of the Employer and ascertained that it raised no new issues. After careful consideration, I admitted the Respondent Employer's answer into evidence and denied General Counsel's motion for summary judgment. I explained to the General Counsel and the Union's counsel, on the record, that I was exercising my discretion in this fashion because (although a summary judgment might well be appropriate were the Employer the only respondent and I would probably grant one in that circumstance) the sole matter in issue is the legality of a superseniority clause in the collective-bargaining agreement between the Employer and the Union, and if I were to grant judgment against the Employer based on the pleadings such a ruling would raise the possibility of an employer found guilty on the pleadings and a union found innocent on the merits and this result, if the clause be found legal in the Union's case, would be unrealistic and seriously impede the administration of the collective-bargaining agreement. I feel that in the peculiar circumstances of the instant case, where a ruling against a dilatory party might possibly seriously injure the interests of an innocent party, my ruling was proper. The Respondent Union and the Respondent Employer (in its late filed answer), deny the commission of unfair labor practices. Upon the entire record, including my observation of the witness,' and after due consideration of the posttrial briefs I The General Counsel rested on the pleadings, after stating her position that by maintaining in effect the contractual clause herein both Respon- dents have committed an unlair labor practice under the authority of Dairylea Cooperative, Inc., 219 NLRB 656 (1975). The Union called only one witness, its steward. Lewis Turner. to testify in its defense. filed by General Counsel and Respondent Union, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION The complaint alleges, both Respondents admit, and I find that Perfection Automotive Products Corporation, hereafter called Employer or Company, is a Michigan corporation with its sole office and place of business in Livonia, Michigan, where it manufactures, sells, and distributes automotive parts and accessories, and has, during the calendar year 1975, a representative period, purchased and received at said location goods and materials valued in excess of $50,000 directly from points outside the State of Michigan, and sold and shipped products valued in excess of $50,000 from said location directly to points located outside the State of Michigan. The Employer is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION The complaint alleges, the Respondent Union hereafter called the Union admits, and I find that it is a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts I. Contractual provisions The Employer and the Union have a collective-bargain- ing agreement2 covering a unit which included 68 employ- ees at the time of the hearing herein. The agreement contains article 6, section 5, reading as follows: Section 5. Stewards shall be granted super-seniority for all purposes including lay off and rehire and job preference if such is required by the Local Union. However, only one (1) Steward shall have super- seniority for all plant purposes. Relevant contractual provisions relating to the selection and duties of stewards are: Article 9 Stewards Section 1. The Employer recognizes the right of the Union to designate job stewards and alternates from the Employer's seniority list. The authority of job stewards and alternates so designated by the Union shall be limited to, and shall not exceed, the following duties and activities: 2 The effective date of the agreement is September 15, 1973. and the expiration date is September 15, 1976. 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. the investigation and presentation of grievances with his Employer or the designated Company repre- sentative in accordance with the provisions of the collective bargaining agreement; 2. the collection of dues when authorized by appropriate Local Union action; 3. the transmission of such messages and informa- tion which shall originate with, and are authorized by the Local Union or its officers ... [here follows certain limitations on transmission not relevant to the instant case ]. Article 11 Limitations of Authority and Liability Section 3. The authority of Union stewards shall be limited to acts or functions which said stewards are expressly authorized to perform by the Executive Board of the Local Union. Article 8 Arbitration and Grievance Procedure Section 2. (a) Should any grievances, disputes or complaints arise over the interpretation or application of the contents of this Agreement, there shall be an earnest effort on the part of the parties to settle such promptly through the following steps: Step 1. By conference between the aggrieved employee, the shop steward, or both, and the foreman of his or her department. Step 2. By conference between the shop steward and business agent of the Union, and the superintendent or the personnel manager. With respect to the filling of the new jobs, the agreement provides as follows: Schedule "A" Article 1 Job Security Section 4. Seniority shall be plant-wide, providing an employee is qualified and able to do the job. Section 9. The Company agrees that whenever possible all new jobs shall be posted for a period of twenty-four (24) hours. Employees who have seniority and ability to learn shall be entitled to such jobs. Any dispute as to this section shall be mutually agreed upon between the Company and the Union. 3 Although I found Turner to be an impressive witness making an honest effort to recount the facts as he knew them, I have discounted speculative answers and answers to hypothetical and extremely leading questions posed by counsel as lacking in evidentiary weight. The collective-bargaining agreement requires union membership as condition of employment after 31 days of employment. Accordingly, all employees, except probationers with less than 30 days' employment, would be eligible to be elected steward. Section 10. Employees' seniority shall be determined by their date of hire. A copy of the up-to-date seniority list shall be made available to Local No. 299. The contract expressly provides that the length of vacations be computed on the basis of length of service from actual hiring date, but also provides that, should more than one employee apply for the same vacation date, the employee with seniority will be given preference. The allocation of overtime originally set forth in the contract at schedule A, article 4, wages and hours, section 6, in the following words: The Company agrees to spread overtime work as equitably as possible, providing the employee is capable of performing the available work. Thereafter, on or about January 7, 1974, the Company and the Union agreed that all overtime work would be based on plantwide seniority. This agreement was memorial- ized in a letter from the Union's president to the Employer's president on January 7, 1974. 2. The testimony Union Steward Turner testified3 that he has been the Union's only steward at the Employer's facility since he was elected in 1962, that this election was conducted in accordance with union rules governing the selection of stewards, that all three candidates were selected by the employees, that it was a secret-ballot election, and that to be elected a steward an employee has to be a union member.4 Turner is third in plantwide seniority and first in seniority in his job classification by virtue of his hire date, and there is no evidence that he has personally derived any preference by virtue of the "super-seniority" clause that he would not have enjoyed by reason of his normal seniority rights. It appears from Turner's testimony that it is the Employer's policy to call him in to work when it is necessary to work 3 or 4, or more, employees overtime,5 that overtime is otherwise distributed on the basis of seniority and qualifications on weekdays and Saturdays, that he works overtime every weekday and every Saturday, and that there are normally 12 to 20 employees called in to work overtime on Saturday. The steward is notified in advance of the number of employees needed each Satur- day,6 and he checks the names of those called against the seniority and job classification list to ensure the agreement is being followed. Turner has resolved several grievances on the spot on Saturdays, and estimates that from January 1976 to the date of the hearing herein he handled from 40 to 60 oral grievances that were resolved without being reduced to writing, and 20 or 30 written grievances. This latter s Turner asserts that if the Charging Party, who was 54th in actual seniority, were the steward, the Charging Party would be the first employee called in on Saturday. 6 The record does not reveal how many people work overtime each weekday. 692 PERFECTION AUTOMOTIVE PRODUCTS estimate encompasses all complaints handled by him, whether during regular worktime or overtime. Turner was aware of the superseniority clause in 1962 which has remained unchanged in succeeding contracts to the present. He was unable to explain the meaning of "job preference," apparently because it has never been ex- plained to him and he has had no occasion to bid on jobs. B. Contentions and Conclusions The complaint alleges that both Respondents violated the Act "by maintaining in full force and effect" the disputed clause "as it applies to job preference." At the hearing General Counsel contended that the "existence of a superseniority clause for union stewards for purposes other than lay off and recall, is presumptively invalid." In her posttrial brief, counsel for the General Counsel argues that the contractual provision "allows stewards to exercise super-seniority for purposes of overtime and job prefer- ence," and is therefore "presumptively invalid." The argument continues that, even if overtime for stewards is justified, there is no evidence of justification for supersen- iority in job preference, and that the term "job preference" does not refer to overtime. The Respondent Union concedes that the superseniority clause is presumptively illegal, but argues that its existence is justified by the necessity of ensuring the steward's continued presence on the job during overtime periods to further the effective administration of the collective-bar- gaining agreement by prompt, on-the-spot resolution of disputes arising thereunder and the saving of both time and money by the resulting avoidance of formal use of the grievance procedure. In sum, the thrust of the Respondent Union's argument appears to be that the term "job preference" refers to the right to come in during overtime hours, which is justifiable because of the above-described need for a steward on the job at all times. Both the General Counsel and the Union rely on Dairylea ' to support their positions. In considering the evidence and the arguments I have kept in mind that the circumstances of this case are unique in that Steward Turner's normal, earned seniority is sufficient that he, personally, appears to have derived no particular benefit. This issue, however, is not whether Turner himself is receiving a benefit from the superseniori- ty clause, but whether or not there has been justification shown for the presumptively invalid clause. The rule to be followed in evaluating the merit of General Counsel's affirmative case and the Respondent's defenses thereto is "that super seniority clauses which are not on their face limited to layoff and recall are presump- tively unlawful, and that the burden of rebutting that presumption (i.e., establishing justification) rests on the shoulders of the party asserting their legality." The clause in question in this case is therefore presumptively unlawful because the steward is specifically granted superseniority for purposes of job preference. This presumption has not T Dairylea Cooperative Inc., 219 NLRB 656 (1975). 8 Dairylea. supra at 658. 9 Schedule A. art. 1, job security. refers to job tenure (not overtime security), posting of "new jobs," and entitlement to "such jobs." Schedule B, part 1, shop rules, speaks of employees' "respective jobs." The general safety been rebutted. The only effort to justify this grant is the attempt of the Respondent Union to equate "overtime preference" with "job preference." Apart from the fact that this argument does violence to the English language, the contract itself uses the term "job" to refer to an employee's work description or classification 9 and specifically refers to overtime as "overtime." Furthermore, the title of "job steward" clearly does not mean "overtime steward." Although I am inclined to agree that in the peculiar circumstances of this case superseniority for overtime purposes might be justifiable, I cannot conclude that there has been any justification shown for the grant of job preference. Furthermore, the clause literally grants super- seniority to stewards for all purposes to be exercised at the discretion of the Respondent Union when it deems such exercise to be required. As I read the clause, it is mandatory that stewards have superseniority for all purposes, and I find that the enumeration of some of the purposes included therein does not detract from that mandate. The steward has, therefore, the broadest possible grant, as a matter of right, to invoke superseniority in each and every instance related to his or her employment where seniority is a factor whenever the Respondent Union determines that such invocation is required. The Respon- dents have proffered no evidence, other than that adduced relating to overtime, to meet the test of justification raised by the plain language of the clause nor has it been shown that the superseniority clause means something other than what it says. That Turner may never have himself taken advantage of the superseniority grant is irrelevant. It is the inherent tendency of such clauses to discriminate against employees for union-related reasons and thus restrain and coerce them in the exercise of their Section 7 rights. ° Accordingly, I conclude and find that the superseniority provision of the collective-bargaining agreement between the Employer and the Respondent Union discussed above is presumptively unlawful, and that the presumption of illegality has not been rebutted. Therefore, the Respondent Union by maintaining this clause in full force and effect has violated Section 8(bXIXA) and (2) of the Act, and the Respondent Employer by maintaining this clause in full force and effect has violated Section 8(aX)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in connection with Respondent Employer's operations described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. rules refers to "jobs considered hazardous" and "job areas" The substitu- tion of the word "overtime" for the words "job" or "jobs" would make all these sections of the agreement ridiculous on their face. i' Dairylea, supra at 658. 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Employer is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining in full force and effect a seniority clause in their collective-bargaining agreement according union stewards superseniority for terms and conditions of employment not limited to layoff and recall, Respondent Employer and 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(bXIXA) and (2) of the Act, respectively. 4. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. I have found that the steward superseniority clause here in dispute is unlawful and shall therefore recommend that the Respondents be ordered to cease and desist from maintaining said clause in full force and effect, except to the extent it grants stewards superseniority in layoff and recall. I shall further recommend that the Respondent Employ- er be ordered to cease and desist in any like or related manner from interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, and that the Respondent Union be ordered to cease and desist from restraining or coercing employees it represents in their exercise of the same rights. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER A. Respondent Employer, Perfection Automotive Products Corporation, Livonia, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to those collective-bargaining provisions with Respondent Union, Local 299, 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 and recall. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its establishment at Livonia, Michigan, copies of the attached notices marked "Appendix A" and "Appendix B." 12 Copies of said notices, on forms provided by the Regional Director for Region 7, after being duly signed respectively by Respondent Employer's and Re- spondent Union's representatives, 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 Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent Employer has taken to comply herewith. B. Respondent Union, Local 299, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to those clauses in its collective-bargaining agreements with Respondent Employer, Perfection Automotive Products Corporation, according union stewards superseniority with respect to terms and conditions of employment other than layoff and recall. (b) Causing or attempting to cause Respondent Employ- er to discriminate against employees in violation of Section 8(aX3) of the Act. (c) In any like or related manner restraining or coercing the employees of Respondent Employer in the exercise of their rights protected by Section 7 of the Act. (2) Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its office and meeting halls used by or frequented by its members and employees it represents at Respondent Employer's Livonia facility copes of the attached notice marked "Appendix B."'3 Copies of said notice, on forms provided by the Regional Director for Region 7 shall be posted by Respondent Union after being duly signed by Respondent Union's representatives, imme- diately upon receipt thereof. The foregoing notice shall be maintained by the Respondent Union for 60 consecutive days after posting in conspicuous places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. I" 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. 12 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 13 See fn. 12, supra. 694 PERFECTION AUTOMOTIVE PRODUCTS 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 any agreement with Local 299, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, giving union stewards top seniority no matter what their length of employment with respect to their selection for and the assignment to them of contract benefits or other terms and conditions of employment except for layoff and recall. 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. PERFECTION AUTOMOTIVE PRODUCTS CORPORATION APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce any agreement with Perfection Automotive Products Corporation, giving our stewards top seniority, with respect to their selection for, and assignment of, contract benefits or other terms and conditions of employment except for layoff and recall or where necessary to perform the functions of steward. 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. LOCAL 299, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA 695