Motion Picture Laboratory Technicians, Local 780

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Motion Picture Laboratory Technicians, Local 780, International Alliance of Theatrical Stage Employ- ees and Moving Picture Operators of the United States and -Canada, AFL-CIO (McGregor-Wer- ner, Inc.) andJewel L. Jett. Case 12-CB-1619 December 23, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 18, -1976, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent had violated Section 8(b)(1)(A) and (2) of the Act by maintaining and enforcing a supersen- iority clause for stewards which he found went beyond the permissible limits established by the Board in its decision in Dairylea Cooperative, Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (C.A. 2, 1976). He also found that by asserting superseniority for Steward Porter, which resulted in the bumping of Jett, and by asserting thereafter Porter's continued insulation from bumping, Respondent had caused the Employer to discriminate against Jett in violation of Section 8(b)(2) of the Act. Respondent excepts to the Administrative Law Judge's conclusion that it had violated Section 8(b)(1)(A) and (2) of the Act and contends that Dairylea is readily distinguishable and therefore not applicable to the present case. We agree with the Respondent. McGregor-Werner, Inc., the Employer herein, was under a contract with NASA to provide it with xeroxing, photographing, microfilming, and drawing restoration services. In 1964, the Employer entered into a collective-bargaining agreement with the i The relevant provisions are quoted in full in sec. I,D,2, of the attached Decision. The specific clause concerning steward seniority reads as follows: All duly elected or appointed Union stewards shall have top seniority for purposes of lay-off, recall, and shift preference, while they hold such positions, as long as they are capable of performing the work then available ... 2 The layoff clause provides in part that "if an employee'sjob is displaced, such employee shall ... (3) have the right to 'bump' or displace the least senior employee in the same or lower grade provided he has the ability, skills, 227 NLRB No. 79 Respondent. -Said agreement provided, among -other things, that union stewards- were to be given "top seniority for purposes of lay-off, recall, and shift preference." 1 - - In August 1975, due to a reduction in the amount of work available, the Employer found it necessary to eliminate the third shift. As a result, Albert Porter, the third-shift steward, in order to retain his position as offset operator, exercised his superseniority rights and bumped into the second shift, displacing the more senior Charging Party,Jewel L. Jett from that position on the second shift. At the time, Jett was the least senior employee (with the exception- of Porter) within the offset operator classification and, accord- ing to the layoff provision?, in the collective-bargain- ing agreement, her position on the second shift was the only one Porter could bump into which would enable him to retain his offset operator position. The General Counsel argued (and the Administra- tive Law Judge agreed) that the superseniority clause in essence grants a shift preference to union stewards and that the Board in Dairylea had decided that such a preference for purposes other than layoff and recall is presumptively unlawful. A comparison of Dairylea and the present case clearly indicates that they are distinguishable and that the application of Dairylea is not warranted here. In Dairylea the collective-bargaining agreement between the respondent employer and the union contained a clause which gave union stewards superseniority, not only for layoff and recall purpos- es, but also with respect to all contractual benefits where seniority was a consideration. Under the agreement the steward was given, among other things, preference in the assignment of overtime, in the selection of vacation periods, and in the assign- ment of driver routes and other positions, with such preference extending to the selection of shifts, hours, and days off. Thus, in the event of a vacancy or in the event a more lucrative route became available, the union steward could obtain the new position or route merely by exercising superseniority to outbid the more senior employees also interested in the available position.3 There being no justification shown for the broad number of benefits granted to stewards, the Board found the clause to be unlawful on its face since it went beyond layoff and recall and therefore and physical capabilities to perform the work required of the employee being `bumped' or displaced." 3 This, in fact, did occur. The respondent company posted a notice fr^r bids on a wholesale milk route. Seven bids were submitted including one from Union Steward Rosengrandt and another from employee Rosengrandt was awarded the route and it was agreed by all parties that, but for the supersemonty granted to Rosengrandt, it would have been awarded to the more senior employee Daniels. MOTION PICTURE LABORATORY TECHNICIANS, LOCAL 780 559 further- found- the respondent to be in violation-of the Act. - In the present case, the superseniority clause, unlike the one in Dairylea, is not unlawful. Although the clause provides that superseniority shall be granted to stewards for -purposes of layoff, recall, and shift preference, in fact no shift preference has ever been granted. As one of-General Counsel's own witnesses testified4 and the Administrative Law Judge found,5 the shift preference provision is meaningless, inopera- tive, and has been amended out by practice. Further- more, whereas in Dairylea the contract permitted a steward to exercise superseniority for upward bump- ing, thus granting him a preference, here the steward is permitted to bump laterally and only for the purpose of retaining his classification. Where, as previously mentioned, a steward in Dairylea could bid for and obtain new positions at any time by using superseniority, here , a steward can use only his normal seniority (not superseniority) to bid for any positions that might be available, except in the event of a layoff. It is thus apparent that there is nothing in this clause which- grants stewards the wide range of on- the-job benefits which stewards in Dairylea received merely because of their union status. And this is without consideration of another very important distinction to be made between Dairylea, and the present case-the method of selection of union stewards. For, in Dairylea, the selection of stewards was totally within the discretion and control of the union.' Consequently, in 'Dairylea, the only way, realistically speaking, a unit employee could gain such a preference with respect to on-the-job benefits was to ' be a faithful and enthusiastic union adherent and thereby recommend himself or herself to the union for appointment to the office of steward.6 In contrast, in the present case all members of the bargaining unit, whether or not they are members of the Union, -participated in the selection of the stewards by vote. Stewards do not have to be members of the Union to be elected. Therefore, unlike Dairylea, here the employees' in the unit choose their stewards. Further, stewards function solely in application and interpretation of the con- tract, but do not collect dues or act in any other way as agents of the Union. Accordingly, the superseniori- ty preference granted to a steward here is not tied to membership in, adherence to, or agency on behalf of any union, but rather-is, derived from the position of steward, which is available to all unit members, union and nonunion alike. - See ALJD, I,D,2,a, par. 4 5 ALJD, I,D,2,a, par. 3. 6 '219 NLRD at 657. , Chairman Murphy is of the opinion that, even if there had been a union- For all the above reasons, we find Dairylea inappli- cable here. Contrary to the Administrative Law Judge, the clause here is not unlawful, and Respon- dent did not violate Section 8(b)(1)(A) and (2) of the Act by, maintaining it in effect. Nor do we find any violation by enforcement of that clause on the facts here. - The Administrative Law Judge adopted the Gener- al Counsel's argument and found that Porter - had exercised a shift preference by choosing to -retain his classification rather than bump downward into the next lower job classification on the first- shift; He concluded that Dairylea prohibits the exercise of superseniority for the purpose of retaining one's job classification inasmuch as that constitutes a prefer- ence. We disagree. This is not a shift preference based on a desire to work certain hours rather than those assigned. We are not prepared to say that a steward may not exercise superseniority for the purpose of retaining his job classification merely because it may result in a change of shift. - Porter, in this case, could not have bumped into the same job classification on any other shift because under the contract he could only bump or displace the least senior employee in the same or lower grade. Aside from Porter, Jett was the least senior employee in the same pay grade. This meant that Porter in exercising superseniority to retain his job' classifica- tion, had only one shift he could bump into, that being the second shift. We fail to see how Porter could have done otherwise or that there was any illegality in permitting him to retain his status. The effect of the Administrative Law Judge's finding would be to prohibit lateral bumping, unless of a junior employee. But there would then be no need of any superseniority clause to assure this since, on a normal seniority system, one would be entitled to bump the least senior person in any event. In such a case, a superseniority clause would be ineffective and serve no useful purpose. It is our view that the right to bump laterally, serves a legitimate purpose in that it encourages the continued presence of a steward on the job and as.such is not prohibited by Dairylea. We find, therefore, that when the third shift was eliminated Porter was in fact faced with a situation in which he lawfully exercised his superse- niority rights to retain his job classification. We also find that Respondent did not violate Section 8(b)(1XA) and (2) of the Act.7 Accordingly, we shall dismiss the complaint in its entirety. security clause in the contract, there would still be no violation since employees would have to join the Union in any event and there would thus be no undue encouragement of employees to join or adhere to the Union. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING , concurring: For reasons set forth in my dissent in Dairylea Cooperative, Inc., 219 NLRB 656 (1975), I agree with the conclusion of my colleagues that Respondent Union did not violate Section 8(b)(1)(A) and (2) of the Act by permitting the steward to exercise his superseniority rights. DECISION STATEMENT OF THE CASE THOMAS R. WIucs, Administrative Law Judge: This matter was heard by me in Tampa, Florida, on February 24, 1976. On December 17, 1975, the Regional Director for Region 12 issued a complaint and notice of hearing based on an unfair labor practice charge filed by Jewel L. Jett, an individual, on September 11, 1975, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, the briefs filed by the General Counsel and the Respondent, and my observation of the demeanor of the witnesses, I make the following: I. FINDINGS OF FACT A. Jurisdiction At all times material, McGregor-Werner, Inc., herein called the Employer, has been a corporation duly organized under and existing by virtue of the laws of the Common- wealth of Virginia and has maintained an office and place of business at the Kennedy Space Center, Florida, where it is engaged in printing and supplying related services pursuant to a contract with the National Aeronautics and Space Administration (NASA). In the course and conduct of these operations the Employer has supplied services, and materials to NASA, an agency of the United States Government, at the Kennedy Space Center valued in excess of $50,000, and which had a substantial impact on the national defense. Therefore, I find that the Employer is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization Involved At all times material herein, Motion Picture Laboratory Technicians Local 780, International Alliance of Threatri- cal Stage Employees and Moving Picture Operators of the United States and Canada, AFL-CIO, herein called the Respondent has been a labor - organization within the meaning of Section 2(5) of the Act. C. Issue Whether Respondent violated Secion 8(b)(1)(A) and (2) of the Act by maintaining and implementing a provision in the collective-bargaining agreement with the Employer which accords superseniority to Respondent's stewards with respect to shift preference and job classification preference in bumping and which insulates them from bumping procedures involved in layoff. D. Facts 1. Background The Employer commenced operations at the Kennedy Space Center under a contract with NASA in January 1964, under which it provides printing, xeroxing, photographing, microfilming, and drawing restoration services. In that same year Respondent was certified as the bargaining agent, and a collective-bargaining agreement was executed. The employment level reached its height at 250 employees. However, thereafter the amount of work was reduced and the third shift was eliminated. As of summer 1975, approximately 100 employees were retained. At the August 1975 third-shift elimination, 4 employees out of 10 were laid off, 1 additional employee accepted a voluntary layoff, and the others transferred to the two remaining shifts. Albert Porter, the third-shift steward elected to bump into the second shift, and by virtue of the superseniority provision of the contract, he elected to retain his offset operator position and thereby displaced the more senior employee, Charging .Party Jewel L. Jett, from that position on the second shift. As a consequenceJett was forced to exercise her bargaining rights under the contract but was forced by virtue of her seniority to accept a lower paying position, color flow operator, on the first shift. Additionally, she lost the benefit of the second-shift preminum rate of pay. Jett was able to regain her offset operator position on the second shift in December 1975, but was bumped from that position by another more senior employee, Voiles, in February 1976. Voiles could not bump the least senior employee, Porter, because of his insulation from bumping which he enjoyed by virtue of his superseniority as a steward. Thus, Jett was again bumped to the first-shift color flow operator job. 2. The collective-bargaining agreement a. Union security The more recent collective-bargaining agreement pro- vides: Article III, Union Security-Sec. 3.1, Union Represen- tation Although membership or non-membership in the Union shall he within the sole discretion of the individual employee in accordance with the Florida law, and the employee shall be so advised, the parties agree that all employees will be informed that the MOTION PICTURE LABORATORY TECHNICIANS , LOCAL.780 561 Union is the sole and exclusive collective bargaining agency-for the employees in the bargaining unit, and, accordingly, they will be represented by the Union for collective bargaining purposes only. They will be given a-copy of the collective bargaining agreement and will be referred to the appropriate local union representative for _ information as to membership and checkoff - of Union dues. - Because of the Florida state law regarding union security, commonly referred to as a right to work law, the contract does not contain a unionshop provision. Article XI, Sec. 11 .4, Layoffs Within the bargaining unit, in cases oflayoffs, recalls and transfers, where an employee is qualified to perform the tasks required, seniority shall govern. When layoffs are necessary, such layoffs shall be made by seniority with probationary employees being laid off first and then -the least senior employees being laid off in inverse order of seniority providing that the remainder of the employees are capable of performing the work then available. If an employee's job is disturbed or eliminated, or if he is displaced, such employee shall (1) elect to accept a vacancy in the same or lower paygrade, or (2) have the right to "bump" or displace the least senior employee on the same shift in the same classification, or (3) have the right to "bump" or displace the least senior employee in the same or lower grade provided he has the ability, skill, and physical capabilities to perform the work required of the employee- being "bumped" or displaced. The employee "bumped" or displaced may exercise the same right, over a less senior employee or accept layoff. Sec. 11.8, Shift Preference When a vacancy exists on any shift, or in the formation of any new shift, preference in filling such vacancy shall be granted on a seniority basis, where consistent with efficient operation. If an employee elects to exercise this privilege, he shall waive right of notice of change of shift provided for in Section 5.2 hereof. Sec. 11.9, Seniority Privileges for Union Stewards All duly elected or appointed Union stewards shall have top seniority for purposes of lay-off, recall and shift preference, while they hold such positions, as long as they are capable of performing the work then available. The 'relative order of priority of seniority, for the purposes of "thi"s Section, shall be in descending order as determined by the Business Manager of the appropriate local union as set forth by him in writing to the Company. Article XV, Union Representation-Sec. 15.1, Investi- gation of Grievances Subject to existing security regulations, the Business Manager and other authorized representatives of the Union shall have access to the Company's work areas during working hours for the purposes of investigating grievances, complaints or matters arising out of the application of this agreement. He shall obtain from the Company specific authorization for each visit and such visit shall be subject to such regulations as may be made from time to time by the Company. The Company will not impose regulations which will exclude such repre- sentatives from the work areas nor render ineffective the intent of this provision. Sec. 15.2, Designation of Stewards The, Union shall designate its stewards, not to exceed eight (8) stewards and keep the Company currently informed in writing of the - names of the accredited stewards. Only those -persons so endorsed, the Business Manager, the Union Coordinator, and other designated representatives will be acknowleged by the Company as representatives of the Union. Sec. 15.3, Handling Grievances The stewards shall be allowed to handle requests, complaints or grievances arising under this agreement in the plant during their regular working hours without loss of compensation (and during other hours without compensation) provided that the time so spent is devoted to the prompt handling of requests, complaints or grievances in accordance with the grievance proce- dure of this agreement and that they at all other times continue to perform their assigned jobs. Sec. 15.4, Scope of Stewards' Union Activities The stewards' Union activities on company time shall fall within the scope of.the following functions: (A) To consult with an employee regarding the presentation of a request, complaint or grievance which the employee desires him to present. (B) To investigate a complaint or grievance of record after presentation to the appropriate supervisor. (C) To present a request, complaint or grievance to an employee's immediate supervisor in an attempt to settle the matter for the employee or group of employees who may be similarly affected. (D) To meet by appointment with an appropriate supervisor or other designated representative of the Company, when necessary, to adjust grievances in accordance with the grievance procedure of this agree- ment. The Company and the Union are in agreement that the minimum amount of time should be spent in the performance of these duties and the Union shall take appropriate action against any steward who abuses the intent of this provision. In the event the Company is dissatisfied with the Union's action in this respect, the Company shall have the right to initiate a formal grievance at the third step of the grievance procedure and subsequently invoke arbitration if the matter is not satisfactorily adjusted at this stage. (E) Have the right to reasonable use of designated telephones for Union business, but no toll calls may be made at the cost of the Company or the Government. All stewards are elected by all unit members including union and nonunion members. The stewards and their alternates are not required to be union members. In fact, the stewards are members of the Union, although some of the alternates are not. The duties of the stewards are limited 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to those set forth under section 15.4 of the contract; i.e., first-line grievance representation. They have no other duties with respect to the Union, and they are not officers of the Union. -All unit members participated in the ratification-of the collective-bargaining-agreement. Despite the fact that the superseniority 'clauses of the contract provides for "shift preference," it is undisputed that superseniority for stewards was asserted only on those occasions when the steward's j ob was, disturbed and he was caused to invoke the bumping procedure under the contract either laterally or downward. In practice superseniority has never been asserted for job vacancies which are subject to a bidding procedure and where earned seniority has always applied. In a job disturbance, i.e., layoff situation, the steward asserts supersemority to retain his same classification, or to take a lower classification by bumping the least senior employee in that classification. According to the testimony of the Employer's chief administrative officer and labor relations representative at the space center, James H. Black, a witness called by the General Counsel, the "shift preference" reference in the superseniority clauses is meaningless, and inoperative, and "amended 'out" by practice. A'steward, however, can effect shift preference if he wishes to forgo other consideration. Thus, in the instant case, Porter elected to stay within his own classification. The least senior such person in that classification was on the second shift. Had Porter desired to forgo the extra pay and shift premium, he could have selected a lower classifi- cation job on the first shift; i:e., the position to which Jett was bumped.l Thus, if the real goal was a certain shift, pay consideration aside, superseniority could be utilized for shift preference. If more than one option is held out involving more than one shift, shift preference for stewards does exist. There appears to be no limitation to the number of stewards on a shift. Section 15.2 of the contract limits the total number of stewards in the plant to eight. There were as of March 25, 1975, six stewards and six alternates for the entire plant. The distribution 'at the August layoff was three stewards on the first shift and one each on the second and third shift. Porter's assignment to the second shift, however, was made without consideration or discussion of the need for a second steward on the second shift, but was based simply on Porter's own personal choice to continue in the offset operator classification which necessitated his assign- ment to the second shift. Had Porter opted for 'the lesser paying job because he preferred working on the first shift, the second shift would have continued on without another steward. It is undisputed- that stewards are entitled to protect themselves from being bumped by more senior employees by asserting superseniority to retain their classification as Porter did when Voiles -bumped Jett in February 1976. There is no provision for upward bumping. II. ANALYSIS The General Counsel contends that the superseniority clause of the contract goes beyond layoff and recall in that I The General Counsel argues that Porter could have accepted a vacancy created by the single voluntary layoff which preceded the other layoffs. However, no real vacancy occurred since the voluntary layoff was solicited the contract grants shift preference,- preference in lateral and downward bumping and insulation-from bumping in the absence of a demonstrable justification by-the Respon- dent and-therefore is unlawful under the Board's decision in Dairylea Cooperative, Inc., 219 NLRB 656 (1975); enfd: 531 F.2d'1162 (C.A: 2,1976). Respondent `argues that the "shiff preference" language in the superseniority clause is meaningless and inoperative and offers no explanation for its presence in the contract. It contends than superseniority arises only within the context of layoff and 'recall and is valid even under-Dairylea,' and distinguishable from that case which involved extensive and widespread preference enjoyed by union representa- tives. Respondent further argues that in any event superse- niority for purposes of classification retention andinsulation from bumping are necessary in order to retain qualified and effective stewards; and unlike Dairylea, the stewards in this case are not required to become union members and are elected by all unit employees; and because of the limited nature of their duties the superseniority they enjoy cannot be argued to constitute an encouragement for union membership or union activism I do not argee that the stewards' superseniority in this case -falls within the confines on "layoff-and-recall" as contemplated by the Board in its Dairylea decision. The Board therein-stated that although superseniority for layoff and recall grants an "on-the-job benefit to unionstatus" it was justified because it encouraged the continued presence of a steward on the job and served a legitimate statutory purpose; i.e., effective administration of collective-bar-gain- ing agreement. Neither the contractual' language nor its application herein was conditioned upon the need to-as-sure the'-presence of a steward on any particular shift, but rather was calculated to assure the steward of the option of job classification, and in consequence the shift to which he could bump to the detriment of other employees with greater earned seniority, and for no other objective than his personal desires. The contractual language grants stewards shift preference. Although superseniority has never been exercised for shift preference as to new or vacant position, the language is there for all employees to read and to conclude such preference exists and no explanation nor justification was given for its presence. In any event, shift preference can be asserted by a steward whose job is disturbed conditioned only by the availability, of existing classifications held by the least senior employee in-;those classifications. Shift preference clearly exceeds layoff and recall, as does insulation from bumping, ,and preference of job classification in lateral or downward bumping. Al- though a broad range of preferences arising from supersen- iority was involved in the Dairylea case, nowhere in its decision did the Board approach this issue on a quantitative level, but rather the Board evaluated the validity of the benefit from a qualitative viewpoint; i.e., is it a benefit tied to union status that goes beyond securing the objective of keeping a union representative on the job. Inasmuch as the preferences in this case do exceed that objective, the justification for such preferences must then be -evaluated. by advance notice of involuntary layoff and as Black testified it would have been meaningless to open such vacancy to bid. MOTION PICTURE LABORATORY TECHNICIANS, LOCAL 780 563 The superseniority preferences herein are claimed neces- sary to attract and keep a core of qualified, competent, and aggressive stewards. Without insulation from bumping and job classification preference, Respondent argues that its stewards would be subject to possible intimidation from the Employer, and from NASA, which intimately controls the workload of the Employer, and which on occasion has expressed displeasure to the Employer in regard to past grievance activity of stewards. Without some protection, Respondent argues that the workload couldbe so manipu- lated as to cause the bumping of stewards to the lowest economic level where they would probably elect to take severance pay and quit. That the stewards perform a vital role in the resolution of first-level grievances is not gainsaid. However, there was no evidence submitted that even suggest that the actual performance of their duties as stewards would be impaired by being bumped to lower classifications in accord with the seniority system in the contract. No evidence was submit- ted as to any actual plot or attempt to contrive layoffs in order, to retaliate against stewards. In any event, protection against such speculative, potentially discriminatory con- duct must be obtained elsewhere. As to the argument that an incentive is necessary to attract and retain stewards, then it would appear that such additional benefit should come from the Respondent in the form of compensation or other nonjob benefits, rather- than from the deprivation of other employees of their seniority rights under the contract. Respondent also contends that bumping preferences are necessary because of the lack of upward bumping proce- dures and that otherwise stewards might be bumped to the lowest job classification, and that for economic reasons the lowest classification might be eliminated. The aerospace industry at the cape is obviously not in full thrust and operational curtailment is progressive. Clearly superseniori- ty preferences that have as an objective the prevention of a street layoff of a steward are justified. Respondent contends that the disputed preferences are justified because of that possible objective in the uncertain future. The evidence, however, indicates that the preferences enjoyed by the steward are not conditioned upon that contingency. That such job classification cutback, in addition to staff and shift cutbacks, might occur appears to be most speculative. In any event, the Respondent is free to negotiate a superse- niority proviso that would enable a steward to bump upward in the event that he is in jeopardy of losing his job because of a classification cutback. Such would appear to be a more appropriate course of action for the Respondent than to maintain the present preferences at the expense of seniority rights of nonstewards. Finally, the Respondent argues that the superseniority accorded stewards does not run afoul of the Act because it neither encourages union membership nor union activism. It contends that because union and nonunion members elect the stewards, who themselves may be nonunion members, and because the steward's duties are strictly limited to the administration of the contract the stewards owe no fealty to the Union but rather perform a service for the good of all employees. Thus, it argues neither member- ship nor institutional union loyalty are enhanced by the job benefit accorded to the stewards in the form of supersenior- ity. The fallacy of this argument lies in the fact that regardless of the steward's degree of institutional union loyalty and activism in other union areas, his job benefit in the form of superseniority is conditioned upon his engaging in the duties of a steward, i.e., administering the contract, a role vital to the union, as strenuously argued by the Respondent with respect to the need to attract and maintain qualified and aggressive individuals as stewards. The Respondent does not suggest that administering the contract is not union activity. Even if it were, it would still constitute concerted activity under Section 7 of the Act, and which the employee is guaranteed a right to engage in, or to refrain from engaging. By denying employees like Jewel Jett a job benefit because they are not union stewards interferes with their Section 7 rights. The Board recognized the inherent discriminatory nature of such benefit in the Dairylea decision when it observed (at 658): Furthermore, even if we were to concede-which we do not - that union activities play no part in the Union's selection of its stewards, they indisputedly do play a decisive part in access to benefits under the clause. Thus, as in the situation here before us, an employee can be denied by his employer a job benefit he is otherwise fully entitled to solely on the ground he is not the union steward; while another employee receives that benefit he otherwise would not obtain solely because he is the union steward. Thus, even accepting the dissent's argument, participating in union activities - i.e., acting as a steward, an activity even employees with merit and ability are free to forego under Section 7 - is a necessary precondition to obtaining the benefit preference of the disputed clause. Consequently, there can be no question but that the super seniority clause ties job rights and benefits to union activities, a dependent relationship essentially at odds with the policy of the Act, which is to insulate the one from the other. Accordingly, it is my conclusion that the superseniority provision of the contract which grants shift preference to stewards and as applied classification preference and insulation from bumping in the layoff procedure is pre- sumptively unlawful and that no justification was advanced by the Respondent sufficient to rebut that presumption. Therefore, I find that the Respondent by maintaining and enforcing the superseniority clause of the contract thus violated Section 8(b)(1)(A) and (2) of the Act. Furthermore by asserting superseniority for Steward Porter with respect to the bumping of the Charging Party on September 1, 1975, and asserting the continued insulation from bumping for Porter thereafter, Respondent has caused the Employer to discriminate against the Charging Party within the meaning of Section 8(a)(1) and (3) of the Act and thus has violated Section 8(b)(2) and (1)(A) of the Act. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE EFFECT OF THE UNFAIR LABOR PRACTICES THE REMEDY UPON COMMERCE The activities of the Respondent set forth above, occur- ring in connection with the Employer's operations de- scribed above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. McGregor-Werner, Inc., 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. Motion Picture Laboratory Technicians Local 780, International Alliance of Theatrical Stage Employees and Moving Picture -Operators of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a seniority clause in its collective-bargaining `agreement with the Employer, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, and by causing the discrimination by the Employer against the Charging Party by permitting an employee with less seniority than the, Charging Party to retain the classification of offset operator on the -second shift while bumping the Charging Party to the position of color flow operator on the first shift solely because A. Porter was a steward, Respondent has engaged in further violations of the foregoing Section of the Act. 4. The foregoing unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and-desist therefrom, and take certain affirmative action to effectuate the policies of the Act. Having found that the superseniority clause is unlawful to the extent that it accords superseniority to Respondent's stewards with respect to shift preference, and classification preference and insulation from bumping in the layoff procedure, Respondent shall be ordered to cease and desist from maintaining and enforcing such clause, to that extent, in their bargaining agreement with the Employer. Having found that the unlawful superseniority clause pertaining to classification preference and insulation from bumping was effectuated so as to causethe bumping of the Charging Party on or about September 1, 1975 and February 9, 1976, to the position of color flow operator on the first shift while a less senior employee was retained as an offset operator and assigned to the second shift solely because he was a steward, Respondent will be required to notify the Employer and Charging Party that it has no objection to reinstating the Charging Party to the position of offset operator on the second shift. Additionally, Respondent must make whole the Charging Party for any loss of earnings she may have suffered as a result of the discrimination against her from September 1, 1975, to the date ' of its- notification to the Employer that it has no objection to such reinstatement of the Charging Party. Backpay is to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9,1963). [Recommended Order omitted from publication.]