Hospital Service Plan of New Jersey

HOSPITAL SERVICE PLAN OF NEW JERSEY 585 Hospital Service Plan of New Jersey and Medical- Surgical Plan of New Jersey and Elaine Sicilian Local 32, Office and Professional Employees Interna- tional Union, AFL-CIO and Elaine Siciliano. Case 22-CA-6613 and 22-CB-3070 December 23, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 6, 1976, Administrative Law Judge Melvin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, Respondents filed exceptions and supporting briefs, and General Counsel filed a brief in reply to Respondent's 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 only to the extent consistent herewith. The facts here are undisputed.' Hospital Service Plan of New Jersey (Respondent Employer) had a collective-bargaining agreement with Local 32, Office and Professional Employees International Union, AFL-CIO (Respondent Union), which, among other things, gave stewards superseniority for layoff pur- poses only.2 The agreement further provided that in the event an employee's job was deleted, such a displaced employee should (1) be required to accept the first open and available position at the same grade level; and, if not placed according to the above provisions, he could then (2) exercise his seniority rights by displacing a junior employee on the same or lower level. If however he is not placed within the time alloted (15 days), he would be laid off. A supplementary agreement was executed between Respondents on September 26, 1975, which, in essence, provided that if a steward's position were deleted and he was not placed under the first provision, then the second provision would immedi- ately apply with the exception that the steward would be allowed to displace any employee either junior or senior to himself.3 I See Administrative Law Judge's Decision, sec. 11, A. 2 The provisions of the agreement may be found in the Administrative Law Judge's Decision, sec. II, A. The supersenionty clause specifically provides that "Stewards during their term of office will enjoy super seniority for layoff purposes only " [Emphasis supplied.] 3 See fn. 1, supra. 227 NLRB No. 88 On September _ 15, 1975, Union Steward Hansel Anglin's position as senior accountant grade level VI was deleted. On September 25, 1975, Anglin, exercis- ing his superseniority, bumped the more senior Elaine Sicilian (Charing Party) out of her senior account grade VI position. Siciliano, in turn, bumped an employee with less seniority who_ was an accountant in grade level V. The Administrative Law Judge, in agreement with the General Counsel, found that the superseniority clause had the effect of insuring that a steward remain on the same grade level rather than have to bump down into a lower-level position. This, he found, was contrary to the holding in Dairylea Cooperative, Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (CA. 2, 1976), which he, interpreted as permitting _superseniority to apply only when and to the extent necessary to keep a steward on the job.4 He further found that Anglin could have bumped down- ward to the, grade V accountant position (as Siciliano did) without much monetary loss 5 and still be kept on the job. He concluded that there being no justifica- tion show by Respondents for permitting the steward to retain his grade level, Respondents had therefore violated Section 8(a)(1)'and (3) and 8(b)(1)(A) and (2) of the Act. Respondents except to the findings and conclusions of the Administrative Law Judge and contend that Dairylea does not -prohibit a steward from exercising- superseniority to retain his grade -level. In Motion Picture Laboratory Technicians Local 780, etc. (McGregor-Werner, Inc.), 227 NLRB 558 (1976), issued simultaneously herewith, we consid- ered and rejected essentially the same arguments posed here by the General Counsel. In McGregor- Werner, the collective-bargaining agreement contained a clause granting superseniority to stewards in the event of layoff or recall.6 When the steward's shift was eliminated, he chose to exercise his superseniority to bump into the same position on the second shift, displacing a more senior employee. As in the present case, the steward could have bumped into the next lower position on another shift be elected to retain his job classification. We found, for the reasons fully set forth therein, the use of superseniority for lateral- bumping to be permissible and not barred by the holding in Dairylea. That rationale is fully applicable to the facts now before us. We therefore reject the Administrative Law Judge's reasons, in the instant case, for concluding that superseniority may be invoked only to- prevent 4 See Administrative Law Judge's Decisions, sec 11, B (Discussion). 5 The difference in Siciliano's pay between grade V and grade VI was $1.50 per week. 6 The clause also included shift preference but, in fact, that aspect was never used and was considered obsolete and "amended out" by practice. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an actual layoff, since they are inconsistent with our view in McGregor-Werner. If, as the Administrative Law Judge found, super- seniority for stewards does not permit lateral bump- ing, than it means nothing at all. To require a steward to exercise superseniority only to take the lowest- rated job rather than be laid off would hardly aid in retaining stewards, except perhaps in dire economic circumstances when no other position could be found elsewhere. A superseniority clause would thus be essentially unnecessary and meaningless under that approach, for a steward would be no more entitled to any priority than -would any employee under a seniority clause applicable to -all. In fact, that rationale and conclusion would, in effect, negate the validity of a superseniority clause, for--purposes of layoff=and recall,- which we held inDairylea would be valid. We find, for the reasons set forth herein and under the McGregor-Werner rationale, that the use of superseniority to protect a steward's grade level and position in the event of an involuntary job change purpose of protecting employ- furthers the- statutory ees' Section 7 rights by insuring that the steward be kept on the job at'all times and not be subject to the contingency or threat of layoff. In the present case, when Anglin's position was deleted, he exercised superseniority to obtain an equal job, even though he could have bumped a-less senior employee in a lower' grade. This exercise of superseniority was a valid exercise of such right accorded to stewards and did not contravene the holding of Dairylea. Accordingly, we find, for the reasons set forth above, that Respondents did not violate the Act, and we shall' dismiss the complaint in its entirety. 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 MELVIN J. WELLES, Administrative Law Judge: This was heard at Newark, New Jersey; on March 22, 1976, based on charges filed September 30, 1975, against each Respondent, and a consolidated complaint issued January 14, 1976, alleging violations of Section 8(a)(l) and (3) by Respondent Company, and of Section 8(b)(1)(A) and (2) by Respondent Union. The General Counsel,-the Employer, and the Union thereafter filed briefs. Upon the entire record in the case,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Hospital Service Plan of New Jersey and Medical Surgical Plan of New Jersey, herein collectively called the Employer, are New Jersey corporations, with their princi- pal offices at Newark, New Jersey,-where they are engaged in the performance of insurance contracts regarding medi- cal and related services. During the 12-month period preceding the issuance of the complaint herein, they provided and performed contractual medical insurance services valued in excess of $50,000 in States other than the State of New Jersey where they are located. I find, as-they concede, that they constitute an employer within the meaning of Section 2(2) of the ' Act and are engaged in commerce within the meaning ofSection 2(6) and (7) of the Act. Local 32, Office and Professional Employees Interna- tional Union, AFIr-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts There is no factual dispute in this case, and the following findings are based on documentary evidence, stipulations entered into at the hearing, and factual averments of the complaint admitted by the Respondents. The most recent of a series of collective-bargaining agreements between the Employer, and the Union was executed September 1, 1975, to run until May 4, 1979. Article V of this contract, entitled "Seniority," contains the following relevant provisions: Section 1 - Definition and Calculation - Seniority shall be defined as the length of continuous service with the Employers and shall be cumulative on an office- wide basis. Stewards during their term of office will enjoy super seniority for layoff purposes only. Section 6-When reduction in the office staff is compelled for economic reasons, technological changes or job deletions, ... such displaced employee shall be placed as follows: 1 The General Counsel's motion to correct the transcript so that the word "opposition" read "open position" at various places is hereby granted. HOSPITAL SERVICE PLAN OF NEW JERSEY (a) The employee shall first be required to accept the first open and available position at the same grade level for which the employee meets the minimum qualifications which occurs during the five (5) work day period immediately following notice of displacement to the employee and the Union. If more than one such position is open at the same time, the employee shall have the choice of positions... . (b) In the event the displaced employee is not placed in accordance with sub-section (a) above, within the subsequent ten (10) work day period [immediately following the five (5) work day period in sub-section (a) above), he may exercise his seniority rights by displacing ajunior employ- ee on the same or lower level providing he can satisfactorily perform the work with minimum procedural orientation... . (c) Upon expiration of the aforementioned fifteen (15) work day period, employees who have not been placed in accordance with the provisions of either of the above sub-sections (a) or (b) shall be laid off. On September 26, 1975, the Employer and the Union executed a supplementary agreement, providing: It is agreed that the concept of super seniority will be applied as follows: If a Steward's position is deleted, Article V, Section 6(a) shall apply. In the event the displaced Steward is not placed in accordance with subsec- tion (a), subsection (b) shall immediately apply with the exception that the Steward shall be allowed to displace any employee either junior or senior to himself. On September 15, 1975, the position occupied by Union Steward Hansel Anglin was "deleted." There was no open position available to Anglin under the terms of article V, section 6(a). About September 25, 1975, Aglin, who was a senior accountant at grade level VI, displaced Charging Party Elaine Siciliano, also a grade VI senior accountant. At the same, Sicilian had more seniority than Anglin, having been employed August 5, 1968, while Anglin began work February 3, 1969. Siciliano in turn bumped an employee with less seniority, who was an accountant in grade level V. It was stipulated that her pay remained the same until December 29, 1975, when it became $1.50 less weekly than it would have been had she remained in grade level VI because of a disparity in the increment she received at that time from what it would have been. B. Discussion Although Anglin was permitted to displace Siciliano, who was senior to him, on September 25, and the supplemental agreement was not executed until September 26, it is clear 587 that the action taken with respect to him and Siciliano and the supplemental agreement itself present the same legal question, with both being alleged by the General Counsel as violative of the Act. Absent the supplemental agreement, the treatment accorded Anglin would have been virtually the same. That is, once there was no open position under article V, section 6(a) for Anglin to fill after his job was deleted, he had the right to displace a junior employee, or he could, as could any employee, decline to exercise that right and go on layoff status, after a 10-day wait, pursuant to section 6(c). At that point, the superseniority provision of the contract was applicable to Anglin because he was a steward, and he could then bump an employee senior to him. It is clear that the Employer and the Umon agreed that it was absurd to require a steward to go through the charade of waiting 10 days, and they therefore permitted the bumping to take place before the expiration of that period. The supplemental agreement was executed to clarify the position taken by the parties. At most, according to them, it permits the steward to exercise his right to superseniority on layoff immediately instead of waiting the 10 days. With the exception of the 10-day wait, argue both Respondents, the union steward is given no more than what any other employee is entitled to, as all employees whose jobs are deleted may, once the provisions of article V, section 6(a) have been met (no open position existing for 5 days after the job deletion), refuse to bump a junior employee and become a laid-off employee. At that stage, of course, only the steward could, by virtue of the superseniority provision of the contract, remain on the job. The General Counsel contends that the action taken, as well as the supplemental agreement codifying such action, is unlawful, arguing that superseniority for union stewards is presumptively lawful only for the purpose of retaining the steward on the job when he otherwise might be laid off. As steward Anglin, or any other steward, was permitted to bump a junior employee in the event his job was deleted, and therefore was "laid off' only by his own choice, there was no need, in terms of keeping the steward's presence on the job, to permit -him to resort to the supersemonty provision of the contract. The General Counsel agrees with the Respondents that the stewards are thus given, in one sense at least, lesser rights than that enjoyed by other employees, in that they are not permitted to create their own layoff status, although other employees are so permit- ted, under article V, section 6(b). Stated otherwise, the General Counsel, as I understand his argument, would permit the steward to follow the provisions of 6(b) and (c) only if the steward's refraining from bumping a junior employee was the basis for his exercising superseniority nghts. I am sure that the General Counsel would not contend that a steward's following section 6(b) and taking a layoff was unlawful. At first blush, Respondents seem to have all the better of the argument,2 for the system operates so as to permit all employees, including stewards, to refrain from "bumping" at their option and to go on layoff status. With "supersen- ionty" a presumptively lawful way of preventing a steward from being laid off, it would appear that a steward could 2 Indeed, at the hearing I expressed serious doubts to counsel for the General Counsel as to the tenability of their theory I did not at the time really understand it 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obviously, with no "open position" available in 5 days, opt not to bump and, 10 days thereafter, go on layoff status. The construction that the parties to the contract gave to article V, sections 6(b) and (c), a construction. then embodied in the supplemental agreement, did no more than permit section 6(c), the layoff provision, to come into play without the 10-day wait insofar as stewards are concerned. The practicalities manifestly made such a construction sensible, for no steward would take a lesser job voluntarily when he could by waiting the 10 days retain his full classification, as did Anglin here. In the case of a steward, that is, the 10-day waiting period served no useful purpose. Viewed in that light, it would appear that Siciliano's only legitimate complaint was the acceleration of her being bumped by Anglin, rather than the fact of bumping, for any time superseniority operates to the advantage of a steward, it operates to the disadvantage of a nonsteward employee who loses something he otherwise would not .3 The above reasoning not only seems to satisfy the Board's decisions concerning superseniority for stewards, it seems also to be the only way not to penalize them for being stewards, for following the General Counsel's view, as noted above, would seem to require that stewards bump down, a requirement not applicable to any other employee. But the applicability of the supersenionty provision to Anglin, for all its apparent fairness and its seeming to comport with the Board's law on the subject, turns out to be, on further analysis, unlawful, at least in my opinion. A General Counsel position that originally appeared untena- ble to me now appears to be the only proper one, and I think the key to the analysis lies in the use of the word "layoff" in two different senses. In this case, it is evident that Charging Party Siciliano did not lose very much; she went down in grade, but not in immediate pay, and only after December 29 was there any loss, when a lesser increment applicable to her new grade entailed a $1.50 weekly diminution from what she would otherwise have earned from that point. Had Anglin, rather than Siciliano, bumped the employee who was in fact bumped by Siciliano, which he had the option to do, Anglin too would not have lost very much-he would have gone down in grade, as did Siciliano, but not in salary, and he would have received a smaller increment at some future date. Thus, all Anglin had to do to keep on the job, and with a very minimal "loss," was to exercise, rather than refrain from exercising, the bumping right given to all employees in article V, section 6(b) of the contract. Surely this provision amply protected Anglin from the standpoint of remaining on the job, if he so chose, so as to continue to carry out his functions as union steward. In short, the "layoff" provision of article V, section 6(c) is not in any real sense a layoff provision at all, for it operates so as to permit an employee to lay himself off, rather than requiring him to take a position that might (or might not - as would have been the case had there been an employee junior to Anglin in grade level VI) be lower on the Employer's pay scale, when the employee's job is deleted. It is also not really true that under the General Counsel's view stewards are in a worse position than other employees, in relation to article V, section 6(b). For any steward whose job was deleted could refrain from bumping and be off the job for whatever good and sufficient reason he, or any other employee, might have for such an election. What the steward could not do, under the General Counsel's view, was elect not to bump and at the same time invoke the superseniority provision applicable to layoffs. The General Counsel quite correctly characterizes the system utilized by these Respondents as a way of insuring that a steward remained on the job at the same grade level. But absent any showing that maintaining the same grade level is essential, necessary, or even desirable, to the steward's ability to continue to function adequately, I do not believe the presumption of legality accorded superse- nionty for stewards for layoff or recall purposes applies here. I am, of course, analyzing this case in the context of the Boards recent decision in Diarylea Cooperative Inc., 219 NLRB 656 (1975) (Member Fanning dissenting) enfd., 531 F.2d 1162 (C.A. 2, 1976). There, the Board enunciated the governing considerations as follows: ... [I ]n view of the inherent tendency of super seniority clauses to discriminate against employees for union-related reasons . . . we do find that super senionty clauses which are not on their face limited to layoff and recall are presumptively unlawful, and that the burden of rebutting that presumption (i.e., establish- ing justification) rests on the shoulders of the party asserting their legality. [Emphasis supplied.] The way a legitimate (under Dairylea) superseniority system operates is to keep stewards on the job as long as there are jobs available, without regard to their seniority. Thus, if a steward is 51st in seniority out of 100 employees, and 50 employees are to be laid off, the 50th employee in seniority may properly be laid off so as to retain the steward. Assuming the same hypothesis, it would be difficult to conceive of a justification for permitting the steward to displace an employee who was 1st, or 10th, or 49th on the seniority list. The simplest way of summing up the above might be to state the principle of how superse- niority can legitimately be applied as follows: Supersenionty shall apply to the layoff (or recall) of stewards only when, and to the extent, necessary to keep them (or put them) on the job. Any other use of superseniority for union stewards would require justification-an affirmative burden of the parties seeking to use it, under the teaching of Dairylea. In the instant case, for example, had there been no junior employee for Anglin to bump under the provision of section 6(b), then he truly would have been forced to be - not elected to be - in layoff status, so that supersemonty would properly have been utilized, as it would then have served the function of keeping a union steward at work. For the foregoing reasons, I conclude that Respondent Employer violated Section 8(a)(l) and (3) and Respondent Union violated Section 8(bXl)(A) and (2) by applying superseniority so as to displace Elaine Siciliano from her grade VI position, and by executing the supplemental 3 Some employee presumably loses his job (is laid off, that is) every time a steward is kept on thejob by virtue of supersemonty HOSPITAL SERVICE PLAN OF NEW JERSEY , 589 agreement permitting union stewards to displace senior employees without regard to whether such displacement was necessary to avoid layoff status.4 Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent Employer and Respondent Union, by executing a clause in their collective-bargaining agreement providing that union stewards are permitted to displace senior employees even when not necessary to retain the stewards on the job, and by discriminating against Elaine. Siciliano by permitting Union Steward Anglin to displace her from her position even though she had seniority over Anglin, have engaged in, and are engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (2) and 8(b)(1)(A) and (2) and 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 cease and desist therefrom and take certain affirmative action designed to effectuate the policies oft-he Act. Having found that Respondent Employer discriminated against Elaine Sicilian by applying the superseniority provision of its contract with Respondent Union to displace her from her grade VI position, and that Respondent Union unlawfully caused such discrimination, I shall recommend that the Employer and the Union, jointly and severally, make Sicilian whole for any loss of pay she may have suffered as a result of the discrimination against her, with backpay computed as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1950), and F. W. Woolworth Co., 90 NLRB 289 (1962). I shall also recommend that Respondent Employer reinstate Sicilian to her former grade VI position and that Respondent Union notify in writing both Respondent Employer and Sicilian that it has no objection to such reinstatement of Siciliano. Finally, I shall recom- mend that Respondent Employer and Respondent Union cease and desist from maintaining and enforcing their supplemental agreement to the extent that it permits a union steward to displace an employee with more seniority other than where necessary to retain the steward on the job. [Recommended Order omitted from publication.] - 4 I have no doubt at- all the violations found herein are completely This does not, of course, preclude the finding of a violation . N.L.R.B. v. "technical" in nature, for the parties acted in good faith, with no specific Great Dane Trailers, 388 U.S. 26,34 (1967). intent to violate the Act, or to encourage or discourage union membership.