Auto Warehousers, Inc.

628 DECISIONS OF NATIONAL Auto Warehousers, Inc. and James R. Skains Teamsters, Local No. 47 and James R. Skains. Cases 16-CA-6384 and 16-CB-1073 December 29, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On July 27, 1976, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions and supporting briefs. 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, as modified herein.' 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, as modified below, and hereby orders that the Respon- dents, Auto Warehousers, Inc., Arlington, Texas, its officers, agents, successors, and assigns, and Team- sters, Local No. 47, its officers, agents, and represen- tatives, shall take the action set forth in the said recommended Order, as so modified: 1. In paragraphs A, l(c) and B, 1(c), substitute the words "In any other manner, for the words "In any like or related manner." 2. Substitute the attached notices for those of the Administrative Law Judge. MEMBER FANNING, dissenting: For reasons set forth in my dissent in Dairylea Cooperative, Inc., 219 NLRB 656 (1975), I would find lawful the maintenance and implementation of the superseniority clause of Respondents' collective-bar- gaining agreement. i In pars. A, 1(c) and B , l (c) of his recommended Order, the Administra- tive Law Judge uses the narrow cease-and-desist language, "in any like or related manner," rather than the broad injunctive language, "in any other manner," which the Board traditionally provides in cases involving serious 8(aX3) discrimination conduct . See N.LR B v Entwistle Mfg Co, 120 F 2d 532, 536 (C.A. 4, 1941), Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975) Accordingly, we shall modify the recommended Order to require Respondents to cease and desist from in any other manner infringing upon employee rights . This change is also made in the revised notices. LABOR RELATIONS BOARD 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 agree- ment with Teamsters, Local No. 47, at our Arlington, Texas, terminal, 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 discriminate against James R. Skains, Roy L. Patridge, B. G. Isabell, and George Gaddy, or any other employee at the Arlington, Texas, terminal, in the assignment of overtime, and/or in our job bidding procedures, or any other term and condition of employment other than layoff and recall, by according top seniority to a union steward in the assignment of such terms and conditions of employment when such steward does not in fact have top seniority in terms of length of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL jointly and severally with the Union pay James R. Skains, Roy L. Patridge, B. G. Isabell, and George Gaddy for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL repost the assignments and allow renewed bidding on all jobs among the yard employees at our Arlington, Texas, terminal, without applying superseniority for the steward. AUTO WAREHOUSERS, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce with Auto Warehousers, Inc., at its Arlington, Texas, termi- nal, any agreement giving our union stewards top seniority no matter what their length of employ- ment, with respect to their selection for, and the assignment to them of, contract benefits or other terms or conditions of employment except layoff and recall. 227 NLRB No. 100 AUTO WAREHOUSERS, INC. 629 WE WILL NOT cause or seek to cause Auto Warehousers, Inc., at the Arlington, Texas, termi- nal, to discriminate against James R. Skains, Roy L. Patridge, B. G. Isabell, and George Gaddy, or any other employee, with respect to the assign- ment of overtime, the job bidding procedures, or any other term or condition of employment other than layoff and recall, by according top seniority to a union steward in the assignment of such terms and conditions of employment when such steward does not in fact have top seniority in terms of length of employment. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL jointly and severally with Auto Warehousers, Inc., pay James R. Skains, Roy L. Patridge, B. G. Isabell, and George Gaddy for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL notify Auto Warehousers, Inc., in writing, that we have no objection to reposting job assignments among the yard employees at the Arlington, Texas, terminal, and allow renewed bidding thereon, without applying superseniority for the steward. TEAMSTERS, LOCAL No. 47 DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: On April 19 and 20, 1976, in Fort Worth, Texas, a hearing was held before me upon a consolidated complaint 1 alleging violations by Respondent Union of Section 8(b)(1)(A) and (2) and by Respondent Company of Section 8(a)(1) and (3) of tI e Act. Posthearing briefs filed by General Counsel and both Respondents have been duly considered. Upon the entire record in this proceeding and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Auto Warehousers, Inc., herein called Respondent Com- pany or the Company, is engaged in the servicing of motor vehicles at various facilities in several States, including a terminal at Arlington, Texas, which is particularly involved in this proceeding. United Transports, Inc., maintains a facility in Arlington, Texas, where it is engaged in the transportation of new motor vehicles. During the year preceding issuance of the consolidated complaint, Respon- dent Company supplied services valued in excess of $50,000 to United Transports, Inc., which in turn provided services valued in excess of $50,000 from its Arlington facility to customers in States outside the State of Texas. It is admitted, and I find, that Respondent Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Local No. 47, herein called Respondent Union or Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Essential Issues 1. Whether Respondents have unlawfully maintained and enforced a contract clause granting union job stewards superseniority for all purposes. 2. Whether in specific instances of implementing the superseniority clause, Respondents unlawfully engaged in discrimination against employees requiring the issuance of a make-whole remedial order. 3. Whether the limitation provision in Section 10(b) of the Act bars consideration of the alleged unfair labor practices. B. The Dairylea Case The controlling law is set forth in Dairylea Cooperative, Inc., 219 NLRB 656 (1975), enfd. sub nom. Milk Drivers & Dairy Employees, Local 338, IBT, 531 F.2d 1162 (C.A. 2, 1976).2 Contract supersemority for a union steward which is limited to layoff and recall is lawful . Recognition of such a restricted grant serves a legitimate statutory purpose in furthering the effective administration of bargaining agree- ments by encouraging the continued presence of a steward on the job, and thereby also benefits all unit employees. However, "in this case or elsewhere," it has not been shown to the Board that superseniority going beyond layoff and recall serves any purpose other than the impermissible one of giving stewards special economic or other on -the-job benefits solely because of their position in the union. Such extended superseniority is not per se unlawful. In view of the tendency of superseniority clauses to restrain , coerce, and discriminate against employees for union -related reasons, such clauses, which are not on their face limited to layoff and recall, are presumptively unlawful. The burden of rebutting that presumption, by showing legitimate and substantial business justification for such clauses , rests with the party asserting their legality. There is no necessity or justification for subsidizing stewards at the expense of other unit employees by requiring that the latter surrender certain job benefits or privileges in return for the stewards ' union activity. It is the union's task to build and maintain its own organization. Where the union's immediate problem is that of encourag- ing employees to serve as stewards, the union alone can handle the situation simply by paying stewards a salary, or 1 In both cases, the original charges were filed on January 2 and served on January 6, 1976. The consolidated complaint issued on February 13, 1976 2 Involving, inter also, Teamsters Milk Drivers Local 338 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD giving them other nonjob benefits for work in such a capacity. For the union to employ job-related benefits to maintain its own organization would "fly in the face of the statutory purpose of insulating employees' fobs from their organizational rights 3 C. The Contracts Respondents Company and Union have been parties to successive collective-bargaining agreements of 3-year terms. The agreement applicable herein extends from September I, 1973, through May 31, 1976. Article 36 provides: Section 1. There may be a steward at each terminal. One steward under each separate contract (i.e., Truckaway, Dnveaway, Local and Garage), shall be granted super seniority for all purposes, including layoffs, rehire, biddings, and job preferences, as requested by the Local Union in wnting.4 Section 2. Stewards shall be permitted reasonable time to present and process grievances on the Company premises . No more than one Steward under each contract shall be paid for time spent adjusting grievanc- es on the basis of a maximum of five (5) hours per week and a maximum of twenty (20) hours per month. Time for meetings in processing grievances shall be estab- lished by mutual agreement by the Company and Local Union.5 Article 7, section 3, sets forth the grievance procedures, in part, as follows: Disputes and grievances, shall first be taken up by the employee involved, and if no settlement is reached, then taken up between the Steward or Business Agent of the Local Union involved and the Employer representative. Disputes and grievances shall be put in writing and presented to the Company within one (1) week, whenev- er possible, after the grievances apses, but in no case later than thirty (30) days after the grievance arises, except as may be otherwise provided in a supplemental 3 Fairly construed , the holdings of the Board and the court plainly reject any attempted justification of the broad supersemonty clauses predicated upon a purported need to compensate stewards for unpaid time devoted to their steward duties 4 It was represented and testified that substantially the same supersenion- ty clause has been in effect historically in all contracts throughout the industry, at least since 1955 All parties have proceeded on the basis that the clause is currently in effect S As clearly reflected in this record, at the Company's facilities the steward was not paid for any time outside his duty hours. It is apparent that art 36, sec 2, limits the amounts of paid working time a steward may devote to adjusting grievances 6 This was 6 months preceding the filing of the charges 7 Respondent Company is covered under the "Garage" operations. 9 Harold H Heitmann , vice president of labor relations , estimated that about 60 employers and 35-40 locals are parties to the national agreement, and about 15 employers and 18 locals are parties to the supplemental agreements 9 Defining the parties to the contract, art I, secs. I and 2 state as follows The Employer consists of the National Automobile Transporters Labor Division and three of its divisions, consisting ofAu tomobile Transport- ers Central-Southern Conference , Eastern Conference and Western agreement. The Company must reply to the wntten grievance in writing to the Local Union within fourteen (14) days .... It is alleged and admitted in the pleadings that, continu- ing since July 2, 1975,6 Respondents have maintained in effect and enforced the superseniority clause set forth in article 36, section 1, above, "relating to the hire, tenure, terms and conditions of employment of employees of Respondent Auto at its Arlington, Texas, facility." The contracts introduced in evidence by the Union are unsigned documents, in booklet form, which do not identify the names of the covered employers and local unions, and which indicate spaces for signatures by a particular company and Teamsters local union. The contract booklet is captioned and contains the separate provisions for the "National Master Automobile Transporters Agreement and the Central and Southern Areas Supplemental Agree- ments covering Truckaway, Driveaway and Garage Opera- tions." 7 Counsel for the Company represented that about 60 employers with locations at 200 facilities are covered by the supplemental agreements, and that many other employ- ers are signatory to the national contract and other supplements.8 It has not been shown which employers and local unions are signatories to an individual contract adopting the terms of the national and supplemental agreements, and which are bound with multiple employers by virtue of membership in and powers of attorney given to certain employer associations.9 D. The Company's Arlington Facility and Steward History The Company maintains operations at seven terminals, including Arlington, Texas.1° At each terminal, a different Teamsters local is involved. At each terminal, the Company supplies support services, e.g., vehicle maintenance and repair, for United Transports, which transports new vehi- cles from the terminal to their destination . Among other management personnel, the terminal manager at Arlington, Edward Chennault, divides his time in the employment of both companies." At Arlington, the Company performs the general functions of moving new cars from an adjacent Conference, and members of the above who have given their authonza- tion to the Association to execute this Agreement and Supplemental Agreements, members of Associations who have not given such Powers of Attorney, and individual who become signatory to this Agreement and Supplemental Agreements as hereinafter set forth . The signatory Association enters into this Agreement and Supplemental Agreements on behalf of its members and under and as limited by their authonza- tions The Umon consists of any Local Union which may become a party to this Agreement and any Supplemental as hereinafter set forth Such Local Unions are hereinafter designated as "Local Unions " In addition to such Local Unions, the Teamsters National Automobile Transporters Industry Negotiating Committee of the IBT, hereinafter referred to as the "National Union Committee," is also a party to this Agreement and the agreements supplemental hereto 10 Also Kansas City, Missouri; Tulsa, Oklahoma; New Orleans, Louisi- ana; Amarillo, El Paso, and Houston, Texas At Irving, Texas, the Company operates a shop and a plant which manufactures trailers and certain equipment i i The Company and United Transports have common officers, and both have their headquarters in Oklahoma City, Oklahoma Employees of United Transports are also represented by the Union at Arlington AUTO WAREHOUSERS, INC. General Motors plant, storing the cars, and loading the cars for transportation by trailer or railroad. The Company's drivers have separate contract coverage and a separate seniority list and steward. More immediately in question, the "yard" employees, covered under the "Garage" opera- tions of the contract, have their own seniority list (of about 53 employees), a steward, and an alternate steward. The latter employees hold jobs at two distinct locations in the terminal area ; i.e., the shop and the GM plant, about seven-tenths of a mile apart. At the plant, about 29 of these employees perform functions such as new car receiver and railcar loader. At the shop (where the terminal manager, other higher officials, and company offices are located),12 about 22 jobs consist mainly of service station attendant. Essentially three shifts are presently in force: A morning shift from 5 a.m. to 1:30 p.m. (2 station attendants); from 6 a.m. to 2:40 (I1 employees mainly car receivers and loaders); and from 7 a.m. to 3:30 p.m. (about 18 employees in the shop and plant). An evening shift from 3:30 p.m. to midnight (about 18 employees in the shop). A night shift ending at 7 a.m. (about 4 shop employees).13 Respondents emphasize the steward's function in han- dling employee complaints before a formal grievance is lodged. The current steward, Jerry M. Hudson, testified that, as an example, an employee would come to him with a minor chargeable accident or letter of warning. If his advice to the employee did not resolve the matter, they would talk to the shop superintendent, Hubert Rolland. At the next step, the terminal manager, Chennault, would be consulted. After a further discussion with Chennault, if agreement was not reached, a grievance would be filed.14 At Arlington, the meetings with management take place in the shop area. The steward is sometimes present when the grievance is formal- ly processed at locations away from the Arlington termi- nal.15 And he participates in the negotiations of a contract rider affecting his local bargaining unit. The Union's business manager, R. D. Holland, and two business agents travel extensively within a wide geographical area adminis- tering 20-22 contracts covering about 1,300 members. Holland testified that, in most cases, he is called in to meet with higher management during the informal consideration of a complaint, after the steward and the employee involved have unsuccessfully discussed the matter with the immedi- ate supervisor. All pending grievances from one unit at a terminal are considered at monthly meetings attended by Vice President Heitmann, the terminal manager, the business manager, and the steward. The Union's business manager or agent is directly involved in the formal stages of a grievance. 12 These management personnel have business hours from 8 a.m to 5 pm 13 The night shift was added after the annual bidding in August 1975 14 The grievance procedure provides the following step considerations (a) local hearing at the terminal location , (b) Southern Conference Automo- bile Transporters Joint Committee, meeting bimonthly in Biloxi, Mississippi; (c) Central-Southern Automobile Transporters Joint Arbitration Committee, meeting at various locations , (d) National Automobile Transporters Joint Arbitration Committee, meeting quarterly at various locations 13 The current steward , Hudson, has thus far not attended such sessions 1s On May 5, 1975, the same four senior employees and an additional employee filed a formal grievance protesting the Company's acknowledge- ment of supersenionty for Hudson on the grounds that it violated specific terms of the contract and that it was contrary to past practice and interpretation of the contract Although asserted in the Company's brief that 631 Hudson was elected as steward for the yard employees in March 1975. In April, he requested and was granted superseniority, and he was thereby placed in the first position on the seniority roster ahead of four other employees senior to him in service. In April, he utilized his top seniority to obtain a newly createdjob as service station attendant on the 5 a.m.-to- 1:30 p.m. shift, Monday through Fnday.16 In August, during the annual posting of all jobs, Hudson bid and obtained the same job and shift." Supersenionty had not been accorded to any of the stewards who preceded Hudson.18 James R. Skains, while he was the yard steward in 1961, had requested of Holland, then business agent of the Union, that he be given superseniority and was denied. The stewards previous to Hudson held a variety of different jobs in the plant and shop on the morning and evening shifts.19 Usually the alternate steward worked at locations away from the regular steward and handled problems in that area.20 One week after Hudson became steward, the Company abolished his job as station attendant, Monday through Friday, from 7 a.m. to 3:30 p.m. He was told that he would have to work Tuesday through Saturday on a similar job with the same hours if he wanted to remain on the day shift. He bid and received the proffered job based on his #5 seniority standing.21 Three weeks later he made the request of Business Manager Holland to be granted supersemonty. After a second letter dated April 29 from Holland, the Company acceded to the Union's specific request for superseniority on behalf of Hudson. Shortly thereafter, Shop Superintendent Rolland informed Hudson, as stew- ard, that he was going to put one man on a midnight shift to grease trucks, Monday through Friday. Rolland accepted Hudson's suggestion that, instead, a job be created for station attendant starting 5 a.m. from Monday through Friday, so that a Teamsters service employee would be available to work with a mechanic from 5 to 7 a.m. Rolland indicated such a man would have to work on the fuel pumps if needed; otherwise he would abolish this job and establish thejob for the midnight shift. Hudson bid on the 5 a.m. job himself, using his superseniority, because (a) it involved the same work he had been doing before in the grease pit, (b) it entailed the same working days he had before his prior job was abolished - Monday through Friday, and (c) upon consideration of his family and himself, he felt he could better serve as job steward by getting off at 1:30 p.m. At the annual job bidding in August, the 5 a.m.-to- 1:30 p.m. station attendant job was #2 on the posting. With or without his supersemority, he had numerous choices of jobs in the shop and plant on the Skains and others had bid for this job in April, such evidence is not clearly shown. IT The Company's posting of the final results noted as to Hudson the "super seniority rights account of steward status " Hudson's supersenionty deprived the four senior employees of effective opportunity to bid on this job, posted as #2 on the list 18 It was generally testified by Vice President Heitmann that stewards were granted supersenionty at other terminals of the Company 19 Roy L Patndge was steward for 12 to 15 years on different jobs and shits. In Skam's observations, Patndge's ability to carry out his union duties were not different from that of the average steward 20 The present alternate steward works in the shop as does Hudson 21 Other options were open to him, including a car-receiver job starting 6 a m, Monday through Friday, and a carloaderjob starting 7 a in, Tuesday through Saturday 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift from 7 a.m. to 3:30 p.m. It is clear that maximum access to the employees and supervisors for steward's discussion of greivances occurs during the 7 a.m. to 3:30 p.m. shift. On his present job, when he gets in at 5 a.m., there are only four other employees in the shop. Hudson testified that he usually performs some of his steward duties at the shop and plant after 1:30 p.m., for about 2 hours, and that he devotes an average of 8 to 10 hours per week "year- in and year-out" performing union functions outside of his working hours. In view of his supersenionty, Hudson also has first preference as to various types of overtime,22 e.g., when there is additional regular work after the shift; road calls from which the employee may return after the shift; work on Saturday and Sunday.23 Hudson has used his superse- nionty to obtain overtime on road calls and weekends. Hudson testified his primary reason for taking weekend work is for income to support his family. Vice President Heitmann testified that, when the business agent changes a steward, he advises the Company as required by the contract. There is no set term for service as a steward. Some last several years and others are replaced in 6 months. One of the bases for change involves the holding of an election in which the employees in that unit vote to select a new steward. The election is brought about when the employees become dissatisfied with the steward, or the business agent feels the steward is not getting the job done and he talks to the employees about it. Heitmann also understands that the business agent has the right to take out a steward if he is not performing his duty. Business Manager Holland testified that, "in most cases," a group of employees send him a letter with signatures asking for a steward election. He tries to "figure about half' of the employees in that shop in order to conduct an election. Then he will take a box and place it in the terminal for 4 or 5 days. An employee, voting individually, places his ballot in the box. The man with the "most ballots" (e.g., a plurality) is elected. The alternate steward helps him count the ballots. His only authority in running an election or changing a steward is "just being business manager of the local." He testified there is nothing regarding the election or selection of stewards in the bylaws, in a membership resolution, or in writing - that he "specifically recalls." There has never been a situation at the Arlington terminal in which he decided to replace the steward because he was not doing a goodjob.24 22 Employees are approached in the order of their semonty 23 Usually each week in the shop area two employees are called in for overtime on Saturday in addition to the regular crew , and four or five employees are given overtime work on Sunday with no regular crew 24 In the Dairylea case, the court noted that the Board's finding of encouragement of union membership resulting from the supersenionty clause "was well within the parameters of reasonableness and fairness " The steward there "is the union's representative in the plant selected solely by and within the unlimited discretion of the union " In the present case, under the authority and control of the Union's business manager, employees are permitted to petition the business manager for the election of a steward, as described above There is nothing to prevent the Union at any time from discontinuing this practice The power to remove the steward resides in the Union It is incumbent on the steward to request supersenionty of the Union, which has been and may be denied, and within its discretion , the Union makes a request in writing to the Company In these circumstances, the E. Conclusions on the Ments Under the principles of the Dairylea case, supra, Respon- dents have the burden of establishing legitimate and substantial business justification for maintaining and en- forcing the contract provision granting supersemonty to union stewards extending to on-the-job benefits other than layoff and recall. The consolidated complaint herein embraces only the Company and the Union. The numerous other employers and local unions signatory to the national and supplemental agreements are not properly subject to this proceeding or directly affected thereby. The supersen- iority clause in their contracts are not per se unlawful, and continue undisturbed. As the Board noted in Dairylea, proper justification may be forthcoming in future cases (if indeed they arise) involving particular circumstances call- ing for such broad supersenionty for stewards.25 It is deemed that supersenionty for purposes of layoff and recall is justified because it encourages the continued presence of the steward on the job and thereby furthers effective administration of bargaining agreements "on the plant level." 26 It is my view that within a multiemployer bargaining arrangement, the particular circumstances in justification of broad superseniority for stewards may vary from employer to employer. By rulings at the hearing, Respondents' justification evidence was limited to the particular operations of this Company and to the actual bargaining negotiations relating to the supersenionty clause. No evidence was adduced concerning the original negotiation of this clause. Vice President Heitmann testified as to the negotiations for the current contract. The employers proposed that the super- seniority clause be deleted. The Unions argued that the employee "might possibly lose considerable money by being a steward [and] it would be much harder to obtain a reasonably good man." The employers finally agreed to allow the clause to remain. A. J. Lowe, a labor consultant retained by three employers, testified for the Company. He participated on behalf of two other employers in the negotiations for the supplemental agreements in 1958.27 The employers initially opposed the broad superseniority clause, but ultimately were persuaded to accept its continu- ation in the contract. The reasoning of the Unions was that, generally, the steward's responsibility in representing the employees required him to have certain added job benefits, e.g., protection against layoff and recall, and also permitted the steward to exercise his best judgment in selecting his employment to fulfill his union duties during hours that substance of the court's observation applies here, in my opinion, that it is not unreasonable "to infer, absent evidence to the contrary, that the Union will, for so sensitive a post, take care not to select someone who has not demonstrated loyalty to the Union " (531 F.2d 1166.) Additionally , however, the Board relied for a finding of union encouragement (prerequisite to violations of Secs 8(a)(3) and 8(b)(2)) on the reasoning that an employee can be denied a job benefit, to which he is otherwise fully entitled, solely on the ground that he is not the union steward , while another employee receives that benefit he would otherwise not obtain solely because he is the union steward Thus, acting as steward is a necessary precondition to obtaining the benefit preference, and results in linking job benefits to union activities - at odds with the policy of the Act. (219 NLRB at 659 ) 25 219 NLRB at 659 26 Ibid 27 There was no national contract at that time AUTO WAREHOUSERS, INC. management was normally present. The same discussion and results occurred in every subsequent negotiation.28 Lowe 29 also referred to a subsequent contract covering over-the-road drivers where the contract specifically pro- vided monetary compensation to the steward for time devoted to union duties during his shift, because all his regular work was "on the clock." The foregoing testimony pertaining to the contract negotiations fails to show proper justification for the superseniority clause in question. As already noted, the Dairylea case rejected the argument for compensating the steward with on-the job economic benefits in order to attract qualified candidates for the stewardship. This holding similarly applies to the proffered justification in this record based on the theory of remunerating the steward for unpaid tune in performing his union duties. As suggested by the Board and the court, the union could pay the steward a salary or award him other nonjob benefits, rather than utilize the extended supersenionty route at the expense of other unit employees. There remains only the evidence by Respondents pre- sented on the justification theory that the extended super- seniority clause is necessary to afford the steward with an option to choose a job and a shift which would allow him to carry out his informal and formal grievance handling functions with maximum effectiveness as to benefit all the employees, the Company, and the Union, by providing a method for prompt resolution of disputes. (a) The steward is, of course, entirely an agent of the Union and, in the respects of grievance representation and negotiations, acts in an adversary relationship to the Company. Indeed, the contract reserves certain rights to the Company to limit the conditions of his stewardship and provides for a maximum of 5 hours per week and 20 hours per month during which the steward will be paid while performing union duties on working time.30 Thus, the parties, while arguing the desirability of providing optimum latitude for the steward to function, have themselves contractually restricted such opportunity. (b) The steward is assisted by an alternate steward, who is not elected. Such an alternate has been available at times and locations conveniently to comple- ment the functions of the regular steward. Additional alternate stewards could be provided. If needed more fully to represent employees and service grievances, a greater availability of business agents could be accomplished.31 (c) Potentially at least, a steward can exercise his option to select a job and shift for personal reasons to secure the financial and other advantages of supersemority status. (d) The current steward, Hudson, did not in fact select the job 28 Thus, as evident, the employers needed to be convinced as to the desirability of the clause in each contract negotiation. 29 The testimony of this witness was highly generalized 30 Such duties include other than grievance matters, such as collection of dues and enforcement of union rules ii The Union's assertion here that it cannot afford to hire more business agents is not an acceptable factor in justification of the supersenionty for stewards 32 1n a multiemployer bargaining agreement , as here involved, it is basic that the employees of each covered employer constitute an inherently appropriate unit Multiemployer bargaining is dependent on the voluntary mutual consent of the various employers and unions involved Thus, for example, at an appropriate time before negotiations commence , an employer or union may withdraw its consent to be contractually bound by any 633 and shift with access to the greatest number of employees and supervisors. (e) The testimony of Hudson that his reason in choosing this job and shift "to better serve the people at the Arlington facility" can be regarded only as a post facto opinion and not as an objective fact. (f) If they deem it so essential, the parties themselves could provide by agreement for the shift and job location of the steward, without the provision for supersemority. (g) Over many years, previous stewards have had diverse jobs and shifts and were not hampered in effectively performing their union duties. (h) In granting superseniority to Hudson for the purported purpose of affording him a job option, the parties have acted disparately as to his predecessors. (i) In any case, the consideration of leaving the option to the steward to select the most suitable job and shift would not, in my opinion, justify the inherent discrimination against more senior employees by depriving them of job benefits to which they would otherwise be entitled but for the supersenionty. Thus, in the instant circumstances, the broad supersemonty clause cannot truly be said, on balance, to redound to the benefit of all employees. F. Procedural Issues The Union contends that the complaint is defective in that other parties to the contract have not been served and made parties in this case. It asserts that "the agreement here challenged is a national agreement to which scores of employers and local unions are signatory." As already shown, the national and supplemental agreements, and contracting parties other than the Company and the Union, are not under attack or placed in jeopardy by virtue of this proceeding.32 In the nature of the violations alleged, the General Counsel could properly decide, without fault or prejudice, to confine the complaint to the Company and the Union immediately involved. Contrary to the Union's argument, such numerous other employers and unions are not entitled to notice and hearing or to be joined, as necessary parties-respondent or as parties in interest, since their contracts are not challenged by the complaint, alleged on their face to be unlawful, or sought to be set aside.33 Respondents contend that all elements of the alleged violations are barred by the 6-month limitation proviso to Section 10(b). The consolidated complaint herein does not attack the execution of the instant contract in 1973, or the predecessor contracts, which contains the broad superse- niority clause in issue. Only Respondents' maintenance and enforcement of this clause within the 10(b) period are raised in question.34 Each act or incident of such enforcement multiemployer agreement and choose to maintain its individual unit status Retail Associates, Inc, 120 NLRB 388, 393, 395 (1958) And see, eg., Moveable Partitions, Inc., 175 NLRB 915 (1969); Santa Barbara Distributing Co, 172 NLRB 1665 (1968) 33 Cf Consolidated Edison Company of New York v. N LR B, 305 U S 197, 232 (1938), where the Court held, with respect to an 8(2) violation, that the affected unions had valuable beneficial interests in the labor contracts and were entitled to notice and hearing before such contracts could be set aside And see, N L R B v Indiana & Michigan Electric Co, 124 F 2d 50, 55 (C A 6, 1941), Hilton Hotels Corporation d/b/a Stotler Hilton Hotel, 191 NLRB 283, 285-286 (1971). 34 Similar circumstances were present in the Dairylea case, supra, in which the execution and existence of the broad supersenionty provision predated (Continued) 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitutes a reaffirmance or renewed "entering into" of the supersemority clause 35 It is immaterial whether the stew- ard acquires the supersemority automatically from the contract clause or, as here, following a specific request from the Union and grant by the Company, as provided in the contract. The operative facts to support the violations stem from the particular instances within the 10(b) period that the supersenionty was implemented in discrimination against other unit employees.36 In the instant case, the crucial conduct consisted of the invocation of his supersen- ionty by the steward, Hudson, in securing a preferred job and shift during the annual bidding procedures in August 1975,37 and in regularly obtaining overtime work. These events within the 10(b) period reflect the substance of the alleged discriminatory acts and Respondents' maintenance and enforcement of the superseniority provision in ques- tion. Accordingly, the procedural contentions of Respondents are found without merit. G. Final Conclusions Respondent Union has violated Section 8(b)(1)(A) and (2) and Respondent Company has violated Section 8(a)(1) and (3), by maintaining and enforcing at the Arlington terminal the broad superseniority clause for the steward, Hudson, and specifically by discriminating against James R. Skains, Roy L. Patridge, B. G. Isabell, and George Gaddy in denying them the job preferences and overtime in accordance with their seniority standing superior to that of Hudson. dents cease and desist from maintaining and enforcing such supersemority clause at the Arlington terminal with respect to terms and conditions of employment other than layoff and recall. It has also been found that, by application of the broad supersemority clause, Respondents discriminated against James R. Skams, Roy L. Patridge, B. G. Isabell, and George Gaddy with respect to the assignment of overtime and the job bidding procedures conducted in August 1975. It shall therefore be recommended that Respondent Com- pany repost the job assignments and allow renewed bidding thereon, in accordance with usual procedures, but without application of supersemority for the steward. Respondent Union shall notify Respondent Company in writing that it has no objection to such reporting of the job assignments. It shall also be recommended that Respondents, jointly and severally, make whole the above-named employees for any loss of earnings they may have suffered as a result of the discrimination against them. Respondents' backpay obliga- tion shall run from July 6, 1975, the date pursuant to Section 10(b) which precedes by 6 months the filing and service of the charges herein. Backpay shall be computed in the manner established in F W. Woolworth Company, 90 NLRB 289 (1950), with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will be further recommended that Respondent Company preserve and make available to the Board, upon request, all payroll records, timecards, and all other records necessary and useful to determine the amounts of backpay due under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the cases, I make the following: IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with Respondent Compa- ny's operations described in section I, 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. V. 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 of the Act. It has been found that Respondents committed certain violations of the Act, as alleged, by maintaining and enforcing at the Arlington terminal a contract clause providing broad supersemonty for stewards and by failing to establish legitimate and substantial business justification therefor. It shall therefore be recommended that Respon- the 6-month statutory limitation , and the violations were found by the Board and Court, predicated on the maintenance and enforcement of the contract within the 10(b) period. 35 E.g., Newspaper & Periodical Drivers' & Helpers Union Local 921, Teamsters (San Francisco Newspaper Printing Co, Inc), 204 NLRB 440, fn 2 (1973), Building Material & Construction Teamsters Union Local 216 (Bigge Drayage Company), 198 NLRB 1046, 1053, fn 2 (1972), Brotherhood of Painters, Decorators and Paperhangers of America (Westgate Painting and Decorating Corp), 186 NLRB 964, 965 (1970), Sheet Metal Workers Union, CONCLUSIONS OF LAW 1. Respondent Company is 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 and enforcing at the Arlington, Texas, facility, a superseniority clause in their collective- bargaining agreement which accords union stewards super- seniority affecting terms and conditions of employment not limited to layoff and recall, Respondent Company and Respondent Union have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act, respectively; and by discriminating against certain employ- ees in according superseniority to Union Steward Jerry M. Hudson with respect to assignments of overtime and job bidding procedures, Respondents have engaged in further violations of the aforestated sections 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. Local 216, etc, (Associated Pipe Fitting Manufacturers, et al), 172 NLRB 35, fn 3 (1968) 36 Cf Local Lodge No 1424, International Association of Machinists,AFL- CIO [Bryan Manufacturing Co I v N L R. B, 362 U.S. 411(1960), where all operative facts to make out a violation occurred outside the 10(b) period 37 Hudson's selection of the job in April does not, in my judgment, operate to time bar his later utilization of supersemority to obtain the same job in August, which was a distinct and separable act, with the sanction of the Respondents, when alljobs were reopened for bidding AUTO WAREHOUSERS, INC. Upon the above findings of fact, conclusions of law, and the entire record in the cases, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER38 A. Respondent Company, Auto Warehousers, Inc., Oklahoma City, Oklahoma, and Arlington, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining and enforcing at the Arlington, Texas, terminal, the collective-bargaining provisions with Respon- dent Union, Teamsters, Local No. 47, which accord union stewards supersemority with respect to terms and condi- tions of employment other than layoff and recall. (b) Discriminating against James R. Skains, Roy L. Patndge, B. G. Isabell, and George Gaddy, or any other employee at the Arlington, Texas, terminal , in the assign- ment of overtime, and/or in its job bidding procedures, or any other term and condition of employment other than layoff and recall, by according top seniority to union stewards in the assignment of such terms and conditions of employment where union stewards do not in fact have top seniority in terms of length of employment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Jointly and severally with Respondent Union make whole the above-named employees for any loss of earnings they may have suffered as a result of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Repost the job assignments among the yard employ- ees at the Arlington, Texas, terminal, and allow renewed bidding thereon without the application of supersemority for the steward. (c) Preserve and, upon request, make available to the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Arlington, Texas, terminal and facilities copies of the attached notices marked "Appendix A" and "Appendix B."39 Copies of said notices, on forms provided by the Regional Director for Region 16, after being duly signed respectively by Respondent Company's and Re- spondent Union's representatives, shall be posted by Respondent Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 38 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 635 employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent Company has taken to comply herewith. B. Respondent Union, Teamsters, Local No. 47, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Maintaining and enforcing at the Arlington, Texas, terminal, the collective-bargaining provisions with Respon- dent Company which accord union stewards superseniority with respect to terms and conditions of employment other than layoff and recall. (b) Causing or attempting to cause Respondent Company at the Arlington, Texas, terminal, to discriminate against employees in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing employees of Respondent Company in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Jointly and severally with Respondent Company make whole James R. Skams, Roy L. Patridge, B. G. Isabell, and George Gaddy for any loss of earnings they may have suffered by reason of the discrimination against them, as set forth in the section of this Decision entitled "The Remedy." (b) Notify Respondent Company, in writing, that it has no objection to reposting the job assignments among the yard employees and allow renewed bidding thereon without the application of supersemority for the steward. (c) Post at its offices and meeting halls used by or frequented by its members and employees it represents at Respondent Company's Arlington, Texas, terminal and facilities, copies of the attached notices marked "Appendix A" and "Appendix B."40 Copies of said notices, on forms provided by the Regional Director for Region 16, shall be posted by Respondent Union after being duly signed by Respondent Company's and Respondent Union's represen- tatives, respectively, immediately upon receipt thereof. These notices shall be maintained by Respondent Union for 60 consecutive days after posting, in conspicuous places, including all where notices to members and employees are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. 39 In the event that the Board's 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." 40 See fn 39, supra