Otis Elevator Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Otis Elevator Company and Raymond Eaton, Boyd Beattie, and Frank losso Local 489, International Union of Electrical, Radio and Machine Workers, AFL-CIO and Raymond Eaton, Boyd Beattie, and Frank losso. Cases 22- CA-6953, 22-CA-7070, 22-CA-7133, 22-CB- 3224, 22-CB-3275, 22-CB-3281, and 22-CB- 3306 August 31, 1977 DECISION AND ORDER On March 29, 1977, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's exceptions. 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, as amplified herein, and to adopt his recommended Order. The question presented here is whether under the Board's holding in Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. sub nom. N.L.R.B. v. Milk Drivers & Dairy Employees, Local 338, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America 531 F.2d 1162 (C.A. 2, 1976), Respondents violated the Act by permitting union officers to exercise superseniority in lateral bumping to retain their same (or slightly lower) labor grades in a layoff situation, to the detriment of two employees with greater plant seniority. We find, in agreement with the Administrative Law Judge, that Respon- ' The relevant sections of the collective-bargaining agreement are contained in art, IV, "Seniority," and are reproduced, in part, below: Section 8. Layoff Procedures In order to maintain employees in their respective labor grades as long as practicable. and in keeping with the provisions of Article IV of this Agreement, the following procedure shall be observed: If there are no realistic objections, when it is necessary to layoff personnel 1. The employee with the least seniority in the occupation in which there is a surplus will be removed from that occupation. 2. The employee so displaced will displace the least senior employee in the block in which his occupation appears providing he has more seniority than that employee in the block is not in a higher grade. In the latter event, the first displaced employee will displace the least senior employee in the block in the same or lower grade. 3. The employee displaced from the block will then displace the least senior employee in the block immediately below his original block providing his seniority permits. 4. This process will be continued until the displacements reach the lowest level. The displaced employee in that level will be laid off. 231 NLRB No. 183 dents did not violate the Act by applying and enforcing their superseniority clause in this instance.' The facts of this case are largely undisputed. In early February 1976, Respondent Employer informed Respondent Union President McCorry of its inten- tion to reduce employment from 800 persons to 50 by June 15, 1976. This layoff would result in the unit being reduced from about 144 to 35. Prior to May 8, the Union was represented by about 16 officers. Thereafter, through attrition, the number was re- duced to 14. There were six department stewards and two area stewards. On or about May 8, following a meeting with International Union Representative Flaherty, Respondent Union carried out the decision made at that meeting by eliminating the department steward positions. At that meeting, Flaherty told the union officers that they must now perform the work which had been performed by the stewards. In early June, massive layoffs occurred and five of the six department stewards, who were no longer able to invoke the benefits of superseniority, were laid off. Following the layoffs, union members were repre- sented by the 14 union officers who remained employed, which number included the 2 area stewards. Five union officers were affected by the layoffs. Pursuant to the layoff provision of the contract, three of the officers, McCorry, Landi, and Woskey, were each reduced from a labor grade 9 to labor grade 7 position, and two others, Sansone and Smith, were each transferred from a labor grade 7 position to another labor grade 7 position. Charging Parties Iosso and Beattie, who each had greater seniority than the five officers named above, were reduced from labor grade 9 to labor grade 6 positions. Therefore, by exercising superseniority, these five officers were permitted to bump laterally 5. In order to displace an employee in an occupation where specialized training in the use of office equipment, such as typewriters or comptometers is involved, the employee who desires the displacement will be required to have had satisfacto- ry recent training in the use of that equipment. 6. A displaced employee who has previously demonstrated satisfacto- ry ability within the Harrison Works in an occupation not necessarily in the same block may displace an employee in that occupation providing his seniority permits. 8. Notwithstanding the provisions of this article, Stewards Members of the Grievance Committee, Negotiating Committee, Officers and other Executive Board Members shall be the last to be laid off and the first to be rehired provided they have the ability to handle the work available. It is agreed that the number of persons coming under the provisions of this Section shall not exceed in Twenty-Two (22). In the event that additional departments are open or closed this figure shall be subject to adjustment between the parties. 1128 OTIS ELEVATOR COMPANY or downward to the detriment of the Charging Parties. The General Counsel contends that superseniority clauses which are not limited to layoff and recall are presumptively unlawful' under Dairylea, supra, and that here superseniority was invoked to grant these five officers higher labor grades than those to which their actual seniority entitled them. The General Counsel asserts that because this exercise of super- seniority exceeds the limits of Dairylea it must be justified by Respondents. The General Counsel also maintains that Respondents failed to show that all union officials have been involved in grievance proceedings or that 14 officers are necessary in a 35- employee unit. Respondents, on the other hand, contend that such an exercise of superseniority is not unlawful under Dairylea. Respondents further con- tend that, if the presumption of illegality applies, it is rebutted by the fact that Respondent Union's action in eliminating the position of steward resulted in the retention of a greater number of employees with greater plant seniority. The Administrative Law Judge found merit to this contention, finding that Respondent Union's elimination of the department stewards was a good-faith effort to reduce its representational force to correspond with the de- crease in unit size, and that as a result of the loss of the stewards the officers and executive board members had to assume their representational duties. Thus, the five stewards lost their superseniority and were laid off so that five other employees with greater plant seniority could remain. The net result, therefore, was to limit the detrimental impact of superseniority on the other employees. As to the issue of whether union officers were entitled to the benefit of the same presumption afforded to stew- ards, the Administrative Law Judge stated that "the ultimate objective of a lawful superseniority clause is the effective administration of the contract on the plant level." He concluded that in this case the union officers were entitled to exercise superseniority, because as defacto stewards their continued presence was essential for the effective administration of the collective-bargaining agreement. We agree with the Administrative Law Judge, and in making our decision we rely especially on a recent Board decision, United Electrical, Radio and Machine Workers of America, Local 623 (Limpco Mfg. Co.), 230 NLRB 406 (1977). In Limpco, under facts similar to those presented herein, we determined that the union officer in question, a recording secretary, 2 As part of her official duties, she maintained records of membership and executive board meetings, presented reports. and posted notices of membership meetings. :' The dissenters show this misapprehension of our holding in Limpco by citing Sergeant-at-Arms Woskey as an example of the unwarranted application of Dairrlea. According to them, Woskey is merely responsible qualified for the same superseniority benefits as union stewards because of her role in the overall administration of the collective-bargaining agree- ment. We rejected the argument that the Union had the burden of justifying the application of the superseniority provisions to the union officer, and instead held that the burden remains with the General Counsel to prove that such an application is invalid. In the instant case, as in Limpco, we conclude that the General Counsel has failed to prove that the application of the superseniority provisions to the union officers is invalid. In Limpco, supra, we specifically rejected the view that under Dairylea superseniority is presumed valid only when the individual involved is processing or adjusting grievances at the workplace. Instead, we emphasized: What is at stake is the effective and efficient representation of employees by their collective- bargaining representatives. Certainly, the repre- sentational activities carried out by union officials involved in the administration of the collective- bargaining agreement on behalf of employees extend beyond the narrow confines of grievance processing. These encompass at the very least a functioning local to assert the presence of the union on thejob. [Emphasis supplied.] Thus, in Limpco, we approved superseniority for the recording secretary-not because of her informal participation in grievances-but because we found that her official responsibilities bore "a direct relationship to the effective and efficient representa- tion of unit employees ... . 2 Similarly, the officers here were entitled to superseniority because in their official capacities they contributed to the ability of the Union to represent the unit efficiently and effectively. 3 We therefore conclude that the application of superseniority to the union officers involved in this case is lawful. The Respondent Union voluntarily eliminated the department steward position in an effort to reduce the size of its representational force and to allow Respondent Employer to retain five employees with greater seniority. Even though this action was detrimental to the two Charging Parties, it was beneficial to all the other employees, as it insured the officers' continued presence on the scene to perform the stewards' duties. The officers were instructed by the International representative to for maintaining order at union meetings. and should not, therefore, be entitled to superseniority. However, the dissenters overlook the facts, found by the Administrative Law Judge and established by the record, that all officers, including the sergeant-at-arms. are ev officio members of the executive board and therefore responsible for administration of the local. including the latter's collective-bargaining agreement. 1129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assume the stewards' duties during the layoff. Even though no formal pronouncement of this change in roles was made, some of the officers did become involved in formal grievance proceedings after May 8, and, as the Administrative Law Judge found, the absence of the stewards after that day indicated to the unit employees that the officers were available to assist them.4 In this case, where the positions of shop stewards have been eliminated, we believe the presence of the remaining representatives at the plant level is crucial. Moreover, it was the General Counsel's burden, not Respondents', to show that 14 officers were not necessary in a 35-employee unit. This, it has failed to do. We, therefore, conclude that Respondents have not violated the Act, by invoking the superseniority clauses of their contract, but, rather, that they have sought to restrict the detrimen- tal aspects of superseniority and to protect employee Section 7 rights by guaranteeing the continued presence of representatives to administer the collec- tive-bargaining agreement at the plant level.5 Ac- cordingly, we shall dismiss the complaint in its entirety.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBERS JENKINS and PENELLO, dissenting: We disagree with our colleagues' decision to dismiss the complaint in this case. For reasons stated in our dissenting opinion in Limpco, supra, we believe that to permit union officers to exercise superseniori- ty under the facts of this case is to approve an unwarranted interference with the employees' basic Section 7 rights. The Act requires that employees are to be free from discrimination on the basis of their union activities or lack of them. As superseniority is inherently discriminatory, its application can be justified only in very limited situations. In Dairylea, supra, the Board recognized that the only lawful objective of a superseniority clause is grievance adjustment on the plant level. Therefore, we conclud- ed that steward superseniority is valid only where it I Our dissenting colleagues emphasize that because of the invocation of the superseniority clause in this case there were ultimately 14 union representatives in a unit of 35 employees. In our view, this fact is not material, for it is the officers' role in the overall administration of the collective-bargaining agreement, and not the ratio of union representatives to unit employees, which entitles the officers to the benefit of the presumption. s Member Murphy agrees with the holding herein. As set forth in her concurring opinion in Union Carbide Corporation Chemical and Plastics furthers the effective administration of the collective- bargaining agreement by encouraging the presence of the steward in a layoff and recall situation. In Limpco, the majority ignored the circumscribed nature of Dairylea and considerably broadened its reach so that, for our colleagues, the proper objective of superseniority is the "whole process of collective bargaining." Our fears expressed in our Limpco dissent, that every union member or activist could be given some office crucial to the "whole process of collective bargaining" and hence enjoy superseniori- ty to the detriment of those who do not curry favor with union leadership, have unfortunately been proven well founded. In Limpco, we stated that the application of the superseniority clause was a clear violation of the Act; in the instant case, its application is an even more egregious violation of the employees' right to refrain from union activity. As a result of our colleagues' decision, union officers are now virtually assured of guaranteed job protection as a fringe benefit for their participation in union activities. Clearly the majority has chosen to ignore the dictates of Dairylea; in particular, the view therein expressed that "it nevertheless remains the union's task to build and maintain its own organiza- tion." In the first case involving the problem of encour- agement of union membership by employers to reach the Supreme Court,7 the Court clearly stated that the Act forbade discrimination to encourage participa- tion in union activities as well as to encourage adhesion to union membership. The Court stated: The policy of the Act is to insulate employees' jobs from their organizational rights. Thus §§ 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without their livelihood. [Footnote omitted.] [347 U.S. at 40.] Applying the teachings of the Supreme Court to the facts of the instant case, we note that in addition to the obvious fact that only union supporters would be elected as officers, the Union's constitution states that only members in good standing can run for union office. Because of the necessity of assuming full union membership in order to be a candidate for union office and thus be eligible for superseniority Operations Division, 228 NLRB 1152 (1977), she would find presumptively lawful job retention superseniority clauses, including layoff, recall, shift assignment, or retention of the same job or category of job dunng incumbency in such position, for union stewards and officers whose functions relate in general to furthering the bargaining relationship. 6 Chairman Fanning would dismiss the complaint in any event for the reasons set forth in his dissenting opinion in Dairylea, supra at 661. 7 The Radio Officers' Union of the Commercial Telegraphers Union, AFL [Bull Steamship Co.] v. N.LR.B., 347 U.S. 17 (1954). 1130 OTIS ELEVATOR COMPANY benefits, the grant of superseniority inherently encourages union activity. Against such encouragement, which standing alone would violate the Act, we must, in accordance with the decision of the Supreme Court in Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521 (1949), balance the necessities of the Union to retain on the job those officers or representatives required for the administration of the contract at the place of employment. It is to carry out such administration, and only for this purpose, that the job rights of other employees may be impaired. Thus, in Dairylea, the Board recognized that despite the discriminatory nature of steward superseniority, it may be justified under certain circumstances since "it furthers the effective administration of bargaining agreements on the plant level by encouraging the continued presence of the steward on the job." We said in our Limpco dissent that the only presumptively valid superseniority provisions are those which apply to union officers or stewards whose presence is necessary for on-the-job adjust- ment or settlement of grievances. In this case, five officers were granted superseniority, not so that they could assist in grievance adjustment, but in order to enable them to obtain higher labor grades than those to which they were otherwise entitled. But for this application of superseniority, the Charging Parties would have bumped those officers and obtained the positions which they had earned by virtue of their seniority. The majority asserts that those officers became "de facto" stewards after the elimination of the depart- ment stewards. However, this information was never formally conveyed to the unit members, and Union President McCorry, one of the officers involved here, testified that he was unsure as to whether this change in the officers' duties had ever been discussed with Respondent Employer's personnel manager. Not only is the record devoid of evidence of notice to the Employer or unit employees of the assumption of steward-type duties by the officers, but, moreover, no evidence exists to show that officers Woskey, Landi, and Smith ever handled any grievances, either formally or informally. Furthermore, in view of the fact that the Union claims that 14 officers are necessary to administer a contract covering 21 other employees, a ratio of 2 union representatives to every 3 rank-and-file employees, the exercise of supersen- iority by these officers is an unhappy but vivid illustration of our prediction that any union member could be given an office deemed crucial to collective bargaining by a union, and thereby gain an unwar- ranted degree of job security. For example, Sergeant- at-Arms Woskey was reassigned as a labor grade 7 to the detriment of Charging Party Beattie, who was reassigned as a labor grade 6. The duties of the sergeant-at-arms are fully described in section 6 of the union constitution. They are as follows: Whenever a meeting is declared a closed meeting the Sergeant-at-Arms shall examine all persons present at the meeting to ascertain if they are members in good standing of the IUE-AFL- CIO. He shall not permit any person who is not in good standing or under the influence of intoxicat- ing liquor to remain. He shall assist the Chairman in preserving order. He shall eject any person from the meeting so ordered by the body. It is plain that Respondents have failed to demonstrate that Woskey had any role in the overall administration of the contract, much less any involvement in the grievance function. Indeed, it is quite clear that the superseniority benefit was given to Woskey solely as a reward for his union service. We thus do not comprehend the majority's finding that in order to perform his functions the sergeant-at- arms has to be assigned at labor grade 7, while the more senior Charging Parties are placed at labor grade 6. We also note that 2 of the 14 executive board members remaining after the layoff were area stewards, who, prior to the layoff, had been responsi- ble for overseeing the department stewards. In fact, the record reveals that grievances were referred to the area stewards. The majority asserts that the elimination of the department stewards indicated to employees that the officers were now to be consulted should problems develop. We can find no support in the record for such a statement, and, indeed, the record contains evidence to the contrary. In fact, the record reveals that four officers were assigned to the same department and we cannot understand how Woskey is better able to accomplish his duties as sergeant-at-arms as a labor grade 7 rather than as a labor grade 6, sitting at the next desk where Charging Party Beattie is currently located. In sum, we find that by extending the legitimate use of superseniority and by justifying it under the facts of this case the majority has infringed upon the rights of employees guaranteed by the Act. Since it has not been demonstrated that the union officials granted superseniority were involved in the grievance procedure at the plant level, and since that is the only justification for a discriminatory superseniority clause, we find that Respondent Employer violated Section 8(a)(l) and (3) and Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. 1131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION Article IV, "Seniority" of the agreement reads in part: STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge: These cases were heard in Newark, New Jersey, on November 10, 1976, pursuant to charges duly filed and served and a consolidated complaint which issued on September 13, 1976. The complaint alleges that Otis Elevator Company, herein the Respondent Employer, and Local 489, Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO, herein the Respondent Union, have engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) and Section 8(b)( )(A) and (2), respectively, of the National Labor Relations Act, as amended, herein the Act. The Respondents have filed answers denying the allegation of unlawful conduct set forth in the consolidated com- plaint. Upon the entire record, the briefs submitted by all parties, and upon my observation of the demeanor of the witnesses, I make the following: ' FINDINGS OF FACT I. JURISDICTION The Respondent Employer, a New Jersey corporation, having its principal office and place of business in New York, New York, and various other places of business in the States of New York and New Jersey, including a plant at 1000 First Street, Harrison, New Jersey, is engaged at the Harrison plant in the manufacture, sale, and distribu- tion of elevator equipment and related products. During the calendar year 1975, said operations being representa- tive of its operations at all times material herein, the Respondent Employer caused to be purchased, transferred, and delivered to its Harrison plant goods and materials valued in excess of $50,000, which were transported to said plant directly from States other that the State of New Jersey. I find that the Respondent Employer is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Respondent Union represents a unit of office and shop clerical employees, employed at the Respondent Employer's Harrison, New Jersey, plant, and maintains a collective-bargaining agreement covering said unit which is effective from October 1, 1973, and at all times material herein. I Upon joint stipulation of all parties on November 18, 1976, a copy of the constitution of the Respondent Union was proffered as a postheanng joint exhibit. The joint exhibit is accordingly received and incorporated into Section 8. Layoff Procedures In order to maintain employees in their respective labor grades as long as practicable, and in keeping with the provisions of Article IV of this Agreement, the following procedure shall be observed: If there are no realistic objections, when it is necessary to layoff personnel - 1. The employee with the least seniority in the occupation in which there is a surplus will be removed from that occupation. 2. The employee so displaced will displace the least senior employee in the block in which his occupation appears providing he has more senior- ity than that employee in the block is not in a higher grade. In the latter event, the first dis- placed employee will displace the least senior employee in the block in the same or lower grade. 3. The employee displaced from the block will then displace the least senior employee in the block immediately below his original block providing his seniority permits. 4. This process will be continued until the displacements reach the lowest level. The dis- placed employee in that level will be laid off. 5. In order to displace an employee in an occupation where specialized training in the use of office equipment, such as typewriters or comptometers is involved, the employee who desires the displacement will be required to have had satisfactory recent training in the use of that equipment. 6. A displaced employeee who has previously demonstrated satisfactory ability within the Har- rison Works in an occupation not necessarily in the same block may displace an employee in that occupation providing his seniority permits. * * 8. Notwithstanding the provisions of this article, Stewards Members of the Grievance Committee, Negotiating Committee, Officers and other Exec- utive Board Members shall be the last to be laid off and the first to be rehired provided they have the ability to handle the work available. It is agreed that the number of persons coming under the provisions of this Section shall not exceed in Twenty-Two (22). In the event that additional departments are open or closed this figure shall be subject to adjustmept between the parties. The parties stipulated that the term "block" as used in this section of the agreement is equivalent to the term "labor grade." In 1976, the Harrison plant experienced a drastic attrition in personnel. In early February, the Respondent the record. Cases 22-CA-6953 and 22-CB-3224 were withdrawn before the hearing. 1132 OTIS ELEVATOR COMPANY Union's president, McCorry, was notified of the Respon- dent Employer's intention to reduce employment from a total of 800 persons to 50 by June 15, 1976. With respect to unit employees this meant a reduction from about 144 to 35 unit members. Respondent Union's executive board met with International Union Representative Ed Flaherty, and it was decided that the Respondent Union would voluntar- ily eliminate the position of department steward, and the officers of the Respondent Union were directed by Flaherty to assume the responsibility and duties of the individuals who had served in that capacity. Pursuant to article IV, section 5, of the agreement, the Respondent Employer's personnel manager, Flynn, was notified there- after in writing of the downward revision of "union officials." Six persons were removed from the position of steward: John McNamara, Thomas McGrath, Dante Beatrice, Vy Davis, Harold Schmidt, and Nicholas Panaga- kos on or about May 8, 1976. Prior to May 8 the Respondent Union was represented by about 16 officers. Thereafter, through attrition, the number was reduced to 14; i.e., no elections were called to fill vacancies caused by death and retirement. McCorry testified that there will be a further reduction of the number of officers, to about four, at the September 1977 scheduled election. On June 2, 1976, massive layoffs took place. All of the aforementioned department stewards were laid off except Panagakos. Two "area stewards" were retained. In conse- quence of the layoffs, and pursuant to layoff provisions of the contract, Charging Parties Frank losso and Boyd Beattie were reduced from labor grade 9 positions and transferred to labor grade 6 positions. Five union officers were also affected. Charles Woskey, sergeant-at-arms and executive board member, was reduced from a labor grade 9 to labor grade 7. President Francis McCorry was trans- ferred from shop clerk, labor grade 7, to expedition labor grade 7. R. M. Landi, a labor grade 9, was transferred to a labor grade 7, clerk expeditor position. Jerry Sansone, vice president, and Bernard Smith, both executive board members, were each transferred from a labor grade 7 position to another labor grade 7 position. losso and Beattie each had greater earned seniority than the five union officers who were transferred to higher labor grade positions pursuant to the application of the above-cited provisions. Thus, because of superseniority accorded to them the officers were permitted to bump laterally into the same or slightly lowerjob classifications to the detriment of losso and Beattie. With respect to the assumption of the former department stewards duties by the officers, there was no official notice posted to employees and there was no clear testimony that the Respondent Employer was precisely notified that they would act as de facto stewards. Vice President Sansone testified, however, that he discussed the change in the representational role of officers with unit members. Beattie testified, without contradiction, that he observed that Woskey on no occasion after May 8 involved himself in any grievance function. However, he conceded that he was unaware that any grievances arose in his department. McCorry testified as to the pendency of certain formal grievances after May 8 which involved some of the officers, but was unaware of what informal grievances were adjusted "on the floor" by the others; i.e., Woskey, Landi, or Smith. B. Analysis The General Counsel contends that under the Board's holding in Dairylea Cooperative, Inc., 219 NLRB 656 (1975), enfd. sub nom. N.L.R.B. v. Milk Drivers & Dairy Employees, Local 338, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, 531 F.2d 1162 (C.A. 2, 1976), the Respondents violated the Act by permitting the application of five union officials' superseniority in lateral bumping in order to retain their same or slightly lower labor grades in a layoff situation to the detriment of two employees with greater plant seniority. The General Counsel argues that such applica- tion goes beyond the permissible exercise of superseniority for purposes of layoff and recall stated in that case, and therefore must be justified by the Respondents; i.e., Respondents must rebut a presumption of unlawfulness. It is further argued that no justification was proven herein because there was no showing of a need for the union officials herein to retain higher classifications, superseniori- ty being permitted to only prevent a layoff to the street; there was no showing that all the union officials had been involved in grievance processing; and there was no showing for the necessity to maintain a high ratio of 14 representatives in a unit of 35 employees. The Respondents argue that the exercise of superseniori- ty in lateral bumping is not presumptively unlawful under the Dairylea holding. The Respondent Employer argues further that had the Union not eliminated the department stewards, of whom five had less plant seniority than the Charging Parties, they could have exercised superseniority to prevent their layoff to the street even under a more restrictive interpretation of Dairylea, and that had they done so, the end result would have been the layoff of more employees with greater plant seniority. Thus, the Respon- dent Employer argues that, even if the application of superseniority by union officers herein exceeded layoff and recall, it would have been justified because the end result was the retention of a greater number of employees with greater plant seniority albeit an incidental benefit was vested in the union officials. In the case before us the contractual language, on its face, is limited to layoff and recall. With respect to the exercise of superseniority in lateral bumping, the Board has, subsequent to the hearing herein, held in similar circumstances that "the use of superseniority to protect a steward's grade level and position in the event of an involuntary job change furthers the statutory purpose of protecting employees' Section 7 rights by insuring that a steward be kept on thejob at all times and not be subject to the contingency or threat of layoff." Hospital Service Plan of New Jersey and Medical Surgical Plan of New Jersey, 227 NLRB 585, 586 (1976); see also Motion Picture Laboratory Technicians, Local 780, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, AFL-CIO (McGregor-Werner, Inc.), 227 NLRB 558 (1976). In McGregor-Werner, a steward exercised superseniority when his shift was eliminated, 1133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within a context of a shrinking work force, in order to bump into the same position on the second shift thus displacing a more senior employee, without a showing of the necessity for the steward to retain his classification in order to function effectively and without a showing of the need for another steward on the second shift. However, the Board found therein at 559 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," and that the steward lawfully exercised his superseniority rights to retain his job classification. The Board, therefore, appears to have concluded that superseniority exercised in lateral bumping to protect or maintain a steward's grade level within the context of involuntary layoffs is not presumptively unlawful unlike the wide range of benefits that exceeded layoff and recall found presumptively unlawful in Dairylea. However, even if the burden of justification, i.e., rebutting the presumption, were upon the Respondents in the instant case, I would be compelled to find the justification proven. The Respondent Union did make a good-faith effort to reduce the size of its representational force to a more realistic proportion of the total work force by eliminating all department stewards. That action removed superseniority from five persons clearly entitled to it, who as a consequence were laid off in deference to the continued employment of five other employees with greater plant seniority. It was made possible by the assumption of the representational duties of those five stewards by the remaining union officers and executive board members. The overall effect of the action by the Union was to limit the detrimental impact of superseniority upon other employees. However, the General Counsel questions whether the union officials are entitled to the same protection as "stewards," and suggests implicitly that the union officials serve in less a representational role than the line stewards. I do not conclude that the Board intended to limit the permissible use of superseniority to one particular category of union representatives; i.e., one who possessed the title "steward." The ultimate objective of a lawful superseniori- 2 Woskey although a "sergeant-at-arms" was also an ex officio member of the executive board, like all other officers. The executive board under the constitution is charged with the administration of the local which obviously includes administration of the local's contract. :I In the event no exceptions are filed as provided by Sec. 102.46 of the ty clause is the effective administration of the contract on the plant level. This, the Board observed in Dairylea, is accomplished by the means of the continued presence of the steward on the job; i.e., a representative on the job. Clearly the union's officials were charged with the overall administration of the contract.2 The only significance of the steward lies in his role as representative on the scene. With the elimination of stewards, as of May 8, the officials became the authorized de facto stewards and thus en- hanced their representational role. Though the promulga- tion of their expanded responsibility was not embodied in a formal pronouncement, the disappearance of department stewards from the scene surely served as a clear enough signal to unit members to look to the officers for assistance. The officers were charged with the duty to police the contract. Some of them did in fact become involved in post May 8 formal grievances on the plant level. Their new role was discussed with some members by one of them. I cannot but conclude that the role of the officers was representa- tional regardless of their title, or whether the occasion for actual grievance resolution did or did not occur. Their mere presence may have avoided the occasion of a contract breach. It would seem that with the removal of department stewards it became all the more essential to require the presence of the remaining representatives of the Union in the plant to assure the effective administration of the contract. I do not read the Board's decisions cited herein to place any significance upon the ratio of representatives to those represented. Moreover, as stated above, the Union made an honest attempt to reduce that ratio to conform to the reduction of unit employees. Accordingly, I conclude that the Respondents have not violated the Act by the maintenance of a superseniority provision in the contract, or by its application under the functional circumstances of this case. Therefore, I hereby issue the following recommended: ORDER 3 The complaint is dismissed in its entirety. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the 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. 1134