Liquid Carbonic Corporation, Inc.

DECISIONS OF NATIONAL LABOR RELATIONSBOARD Liquid Carbonic Corporation, Inc. and Angelo Vac- cardo Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Angelo Vaccaro. Cases 22-CA- 9299 and 22-CB-4148 August 12, 1981 DECISION AND ORDER On February 24, 1981, Administrative Law Judge Arthur A. Herman issued the attached Deci- sion in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting brief.' The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent Employer, Liquid Carbonic Corporation, Inc., Chicago, Illi- nois, its officers, agents, successors, and assigns, and the Respondent Union, Local 478, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Union, New Jersey, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. CHAIRMAN FANNING, dissenting: I would dismiss the complaint in its entirety be- cause I do not agree with the restrictions placed on superseniority by Dairylea Coorperative, Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (2d Cir. 1976), and its progeny. See my dissents in Dairylea, supra; A.P.A Transport Corp., 239 NLRB 1407 (1979); and The American Can Company, 244 NLRB 736 (1979). 'The Administrative Law Judge erroneously stated in his Decision that Respondent Employer, who made ino appearance at the hearing. was in effect represented by Respondent Union's counsel. DECISION STATEMENT OF HE CASE ARTHUR A. HRMAN, Administrative Law Judge: This case was heard' at Newark, New Jersey, on April 'Although the Compally iled an answer in this proceeding, it made no appearance at the hearing Counsel for the Union advised ime on the record that the Company's positiou l) as sylnynmouas with the Union's. 257 NLRB No. 99 21, 1980, upon a consolidated complaint issued on July 31, 1979, which complaint was based upon charges filed on June 14, 1979, by Angelo Vaccaro, an individual, in Cases 22-CA-9299 and 22-CB-4148. The complaint al- leges, in substance, that the Respondent Employer, Liquid Carbonic Corporation, Inc., herein called the Company, and the Respondent Union, Local 478, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, maintained and enforced an invalid superseniority clause in their collective-bargaining agreement, in viola- tion of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. In their separate, duly filed answers, the Company and the Union deny the commission of any unfair labor prac- tices. Upon the entire record in this case, and upon the briefs of the General Counsel and the Union duly sub- mitted, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT COMPANY The Company, a Delaware corporation, with its prin- cipal office in Chicago, Illinois, is engaged in the storage and distribution of dry ice, carbon dioxide, and related products at its facility in Kearny, New Jersey, the only facility involved in this proceeding. Annually, the Com- pany sells and ships goods valued in excess of $50,000 di- rectly to sources located outside the State of New Jersey. The Company admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE IABOR ORGANIZATION INVOLVED The Union admits, and I find, that it is and has been a labor organization within the meaning of Section 2(5) of the Act. Iii. THE A I.I.EGD UNFAIR LABOR PRACTICES A. The Facts The consolidated complaint alleges, the Respondents admit, and I find that, at all times material herein, the Company and the Union have been parties to a collec- tive-bargaining agreement covering truckdrivers, helpers, and platform men, effective from April 1, 1976, through March 31, 1979.2 Section 22 of said agreement reads as follows: 3 Section 22-Stewards (A) The Employees shall elect one of its mem- bers to act as Shop Steward, whose duty shall be to and that, in effect, counsel for the Union was also representing the Com- pany. ()On March 11, 1980, the Respondents executed the current collective- bargaining agreement which became effective retroactively on April I. 1979, and expires on March 3. 1982. This agreement varies slightly with the prior agreement but, in pertinent part, does not affect the decision in this proceeding. See fn. 4, infra. ' Sec 22 is unchanged ill the current agreement. 686 LIQUID CARBONIC CORPORATION. INC. see that the conditions of this Contract are not broken by either Employer or Employee(s). In case of a slack season, he shall be the last Employee to be laid off and under no consideration shall he be discriminated against. He shall take up with the Employer all grievances and complaints of the Employee(s), and make a reasonable effort to adjust them. Failing to do so, he shall refer them to his Union Business Agent. Under no circumstances shall he take it upon himself to discipline the Em- ployer. (B) Stewards shall be granted super-seniority for all purposes including layoff, rehire, bidding, and job preference. (C) One Steward on the morning dispatch, in compliance with regular starting times, shall be the last man to leave the terminal (warehouse) at the Steward's option. (D) The Steward is recognized by the Employer to have no right to enter into any form or type of agreement with the Employer, except as authorized by the Local Union, through its Business Agent. Other relevant sections of the contract read as follows: Section 7-Work Week-Hours-Starting Time- "Shape-up-Time"-Night Work (A) Eight (8) consecutive hours, exclusive of the lunch hours, shall constitute a regular day's work for all employees covered by this Agreement, Monday to Friday, inclusive. All time worked by employee in excess of the eight hours, each day, Monday to Friday, inclusive, shall be paid for on the basis of the overtime rate per hour listed in Sec- tion 2, according to the employee's job classifica- tion. (C) All Saturday (if not a holiday) work shall be paid for at the rate of time and one-half. Employees assigned to work on Saturday (if not a holiday) shall be guaranteed a minimum of five (5) hours and twenty (20) minutes work at time and one-half (1- 1/2) or shall be paid for same by the Employer. (F) The "Starting Time" for a "Regular Day's Work" for drivers and helpers shall be assigned from, and between 7:00 A.M., and 8:00 A.M., each day of the calendar week. (G) Drivers and helpers assigned to start work at 12:00 Midnight or at any time thereafter until 7:00 a.m. shall be paid for all such time at the overtime rate listed in Section 2; and at 7:00 A.M., their regu- lar day's work shall start. (I) "Shape-Up-Time," etc.-The so-called "shape-up-time" for drivers and helpers who have not been assigned to start work earlier, shall be des- ignated by the Employer, and shall be between the hours of 7:00 A.M. and 8:00 A.M. (J) Drivers and helpers on the Seniority List shall "shape-up" (appear for work) no later than 8:00 A.M. Employees failing to "shape-up" by 8:00 A.M. shall forfeit their place on the seniority list for that day and shall not be placed to work until all other Employees who "shaped up" before 8:00 A.M. have been placed to work in seniority order. Drivers and helpers who were "booked" to work but appeared late shall also be placed at the bottom of the list for that day. (K) During the so-called "shape-up" time, all available drivers and helpers shall be placed to work according to the Seniority List. However, a senior driver shall have preference to operate a ve- hicle for which the wage per day is highest, if quali- fied. (L) Work assignments (routes, loads, deliveries, and pick-ups) shall be allocated by the Employer's discretion providing, however, the Employer does not discriminate when allocating same, and (2) se- niority shall prevail on so-called "over-the-road- work" that the Employees have been performing during the terms of the labor contract, between the Employer and the Union, which expired on March 31, 1970, and senior drivers shall have preference on that so-called "over-the-road-work." Section 8-Seniority (A) Seniority-according to Job Classification- shall prevail at all times. (B) The Employer shall compile a seniority list from the regular payroll records, subject to the ap- proval of the Union. (C) Employees shall be ranked in seniority ac- cording to their length of service with the Employ- er in the classification of work to which they are as- signed If an Employee leaves one classification to go to another, he shall become the junior Employee in the classification to which he has transferred. (D) There shall be separate seniority lists for drivers, helpers and platform men. (E) Senior drivers shall have preference to oper- ate vehicles for which the wage per day is highest if qualified. The senior driver shall have preference of the longer trip or run on "over-the-road" trips.4 (I) Regular Employees (Platform Men) will remain on said shift for (60) calendar days, unless there is a temporary reduction of the work force, in which case, Employees in seniority order shall have the right to work on a shift that operates. (N) All other work shall be allocated in strict conformity with the seniority list, i.e., an Employee (driver or helper) with most seniority shall be as- signed to work at the first job allocated that day and the next senior Employee shall be assigned to the second job allocated that day, etc., however, senior men shall have preference on so-called "over-the-road" work that Employees have been performing during the term of the Labor contract between the Employer and the Union, which ex- pired on March 31, 1970. (O) Employees booked for work shall be booked according to seniority, providing it does not impair the efficiency of the operation. However, senior In I (e currentlll grcellltcnl. tle ec'nlld e enltllvt IIT' hi, clalle dte' , ntl applk to Ih filit i('icd hIlrctln 687 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees (drivers and helpers) to those booked shall not be placed to work later than regular desig- nated shape-up time. Section 9-Holidays (A) All Employees who are assigned to work on Sunday or the following holidays, viz: New Year's Day, Lincoln's Birthday, Washington's Birthday, Good Friday, Decoration Day, Independence Day, Labor Day, Columbus Day, Election Day, Armi- stice Day, Thanksgiving Day, Christmas Day, Em- ployee's Birthday and any holiday called for by the State, shall be paid time and one-half for the regular eight hours worked, plus one day's pay. Overtime work on the above days shall be paid for at double the overtime rate listed in Section 2. This section does not apply when the holiday occurs on a Satur- day. Paragraph D of Section 7 shall then apply. Section 10-Vacations (I) Summer vacation period is June 1 through September 15. Any employee entitled to five (5) weeks' vacation may take three (3) weeks at once during this summer period. Winter vacation period is October I through May 15.5 (L) Vacation schedule (which Employees and the weeks they are to go on vacation) shall be decided between the Employer and the Employees, and posted before June Ist of the years 1976, 1977 and 1978, respectively. Section 16-Union Security (A) All present Employees who are members of the Local Union on the effective date of this subsec- tion or on the date of execution of this Agreement, whichever is the later, shall remain members of the Local Union in good standing as a condition of em- ployment. All present Employees who are not members of the Local Union and all Employees who are hired hereafter shall become and remain members in good standing of the Local Union as a condition of employment on and after the 31st day following the beginning of their employment or on and after the 31st day following the effective date of this sub-section of the date of this Agreement, whichever is the later. An Employee who has failed to acquire, or hereafter maintain, membership in the Union as herein provided, shall be terminated sev- enty-two (72) hours after his Employer has received written notice from an authorized representative of the Local Union certifying that membership has been, and is continuing to be, offered to such Em- ployee on the same basis as all other members and further, that the Employee has had notice and op- portunity to make all dues or Initiation Fees pay- ments. The current agreemet adds the folhlowing sentence: "If mutually agreeable and schedule allows, all acation may he taken in either summer or 'winter schedules " " The current agreemenl proslides posting before May 15 ill each year of the contracl Section 18-Dues Check-off (A) On the First Pay Day of each month, the Employer shall deduct from the wages of each Em- ployee for dues payment to the Union, such sum as the monthly dues of the Union is or shall be at the time, and as authorized by the Employee. A check for the total money so deducted shall be immediate- ly forwarded to the Secretary-Treasurer of the Union, together with a list of the Names of the Em- ployees from whom the dues payments were de- ducted, which shall be furnished to the Employer from the Union. This provision shall apply only after Employee, or the Union, has presented signed cards author- izing the Employer to make said deductions from the wages of the signer. Also relevant to this proceeding is article VII of the Union's constitution and bylaws: ARTICLE VII Shop Unit Stewards Section 1. The Stewards: Each shop unit shall be entitled to a Steward. The Steward shall be elected from the candidates nominated for that office in De- cember each year. The candidate receiving the most votes cast by the membership of the shop unit shall be elected. The Steward shall act as Chairman of the shop unit meetings, when the Business Agent is not in attendance. The Steward shall have the power to appoint as- sistant stewards. He shall have the power to appoint temporary stewards. He shall be elected for a period of one year. The term to commence on January Ist each calendar year. Majority of members in a Shop Unit may peti- tion for a Steward's Election in December of each calendar year. Said petition shall be submitted to the Business Agent who shall give one week's notice of the scheduled election for Steward, after he and the incumbent Steward have determined that the signatures on the petition are bona fide. Section 2. To be eligible for the position of Ste- ward and to be eligible to vote in an election for Shop Steward a member must have been initiated at a regular meeting of this Local Union, must have his dues paid for the month preceding the election, and must otherwise be in good standing in this Local Union. In the event the majority of the unit members do not petition for a Steward's election in December of any year, the incumbent Shop Unit Steward shall continue in the position for the following Calendar Year. In the event a vacancy occurs in the position of Shop Unit Steward during the calendar year, the Shop Unit Members shall nominate and elect, in ac- cordance with these provisions, an eligible member to serve as Steward for the balance of the calendar year. 688 LIQUID CARBONIC CORPORATION. INC. Section 3. During the Shop Unit Stewards' term (calendar year), the Shop Steward may be removed only by having charges preferred against him by an eligible member of the unit, an Officer or Business Agent of this Local Union, and after a full and fair hearing before the Executive Board and upon being found guilty of said charges. Section 4. When none of the eligible members of a Shop Unit accept a nomination for Shop Unit Ste- ward, the Business Agent shall appoint a Shop Unit Steward, from among the Shop Unit members, to be the Shop Unit Steward for the following Calen- dar Year, or the balance of the calendar year, as the case may be. Section 9. Shop Stewards shall be the highest ranking union members in the unit. All union mem- bers must accept their word as union law during working hours. Members shall hold the Stewards in the highest esteem. They shall insure the strict enforcement and ob- servance of the Union's agreement. They shall be responsible for the carrying out of the Union's Con- stitution and By-Laws, Executive Board and mem- bership decisions. They shall advocate and promote all Union projects among their units that have been approved by the Executive Board. They shall be re- sponsible for the signing of new employees in their units, but only after said new employees have worked thirty (30) days. They shall make certain that all questions on the members applications are answered in accordance with this Constitution and By-Laws. Angelo Vaccaro, the Charging Party herein and the General Counsel's only witness, was employed by the Company as a truckdriver for 29-1/2 years. He was ter- minated in July 1979. 7 Sometime In the late 1960's, Vac- caro ran for the office of shop steward against Victor Petozi, the incumbent, and Amil Maccie, another unit employee, pursuant to article VII of the Union's consti- tution and bylaws, described supra. The election resulted in a tie between Petozi and Maccie, and Maccie was de- clared the winner by the toss of a coin. Ever since that election, Maccie has continued to be the shop steward inasmuch as no employee since that time has been able to get 51 percent of the unit employees to sign a petition to have an election. During his employment by the Compa- ny, Vaccaro transported carbon dioxide in liquid and solid form from the Kearny facility to various States and, on occasion, to Canada. He drove both trailers and "straight jobs,"8 and some of his trips were "over-the- road" assignments.9 At all times material herein during 1979, the Company employed 19 unit employees. ° On the seniority list, Vaccaro is listed as the number 2 senior employee, with Maccie number 7, whereas on the vaca- tion list Vaccaro is number 3, and Maccie is number 1. His discharge is not a factor in this proceeding. s A "straight job" is a one piece unit with a motor and a box in the back. Trailer work paid more than straight jobs. 9 These assignments meant transporting or picking up goods a distance of at least 75 miles. 'o See G.C. Exhs. 3 (Company's seniority list) and 4 (Company's vaca- tion list). According to Vaccaro, seniority was the determining factor as to who received overtime work, over-the-road work, " Saturday, Sunday, and holiday work, 12 and vaca- tions and, in each of the above categories, Maccie was given seniority over him. When Vaccaro complained to William Franklin, the Company's dispatcher, and to the union business agent, Edward Seconish, he was told that Shop Steward Maccie had superseniority. Vaccaro states that between December 14, 1978, 3 and July 1979, when Vaccaro was discharged. Maccie was assigned t' week- end work and over-the-road work in preference to Vac- caro, at a time when Vaccaro was eligible for the work, sought the work, and did not refuse the work. Vaccaro also states that Maccie, not Vaccaro, received overtime work by being called in earlier than the regular starting time, but Vaccaro does not recall whether it occurred during the critical period. As for the 1979 vacations. Vaccaro testified that a vacation list headed by Maccie's name was posted on the bulletin board prior to June 1, and all unit employees were told to pick their vacation time pursuant to the terms of the contract, with Maccie having first choice. On cross-examination of Vaccaro, the Union elicited the fact, and the General Counsel's Exhibit 4 confirms it, despite Vaccaro's protestations, that although Maccie se- lected 3 weeks in July for his vacation, three other em- ployees with less seniority than Vaccaro also selected, and were granted, portions of those same 3 weeks, whereas Vaccaro selected I week in September. There was no evidence presented by the General Counsel to show that any employee was "bumped" from his select- ed vacation time. Also, and again despite Vaccaro's claim that Maccie had the longer over-the-road trips or took jobs away from Vaccaro, on cross-examination Vaccaro could not identify a single occurrence specifi- cally. nor could he name a single instance when Maccie exercised his superseniority to "bump" Vaccaro, and no records were introduced by the General Counsel to es- tablish definitively the accusations being made by Vac- caro. Moreover, the Union established that, from De- cember 1978 to February 12, 1979, Vaccaro elected to work on the platform rather than drive a vehicle, and that from February 12, 1979, to March 12, 1979, Vaccaro was suspended,' but returned to work on the platform until March 17. As for weekend and holiday overtime work, Vaccaro testified that first Maccie was chosen, then J. Argieri (number I on the seniority list), and then Vaccaro, if there was enough work to go around; if not, Vaccaro did not work. Despite the Union's attempt to justify the steward's presence on the premises on week- ends and holidays, Vaccaro disputes the necessity. Seconish, the Union's business agent, testified regard- ing the election procedure for choosing stewards as stated in the Union's constitution and bylaws, and then " If there were tuo or more over-the-road jobs, the senior employee had the choice. i! As stated, -lpra, weekend and holiday work received osertime pay "' A date 6 months prior to the filing of the charges herein 4 Jobs 'sere not posted. They escre handed out in the drivers' room hb the company dispatcher. " No explanation was given fir Vaccaro's suspension and it is not al- leged as heing unlas ful 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that normally the steward is on the job until after the end of the dispatch period each morning, after which he goes out on his run; if grievances are filed, the ste- ward is apprised of them that night or the next morning. Seconish denied that Vaccaro ever complained to him about Maccie being given work opportunities ahead of Vaccaro, or that the Company ever told him that they had gotten a complaint from Vaccaro. Seconish agreed that the shop steward should be considered number I man for all purposes. Maccie admitted that the collective-bargaining agree- ment gives him superseniority for all purposes. but he denies ever invoking it to displace another unit employee on an over-the-road job or a better paying job. Also, he testified that, even though he had superseniority for all purposes, he invoked section 22(c) of the contract, which gave him the option to be the last man dispatched each day, on a majority of occasions so that he could be pres- ent to take care of any grievances that may arise. He readily admitted that if no problems existed, he did not invoke the option; but, he denied having any choice in selecting a job run, claiming that selection was done by the dispatcher. Maccie further testified that, insofar as weekend and holiday work is concerned, he is the first one called in, and that makes him available to the unit employees 7 days a week, 24 hours a day. Maccie denies getting any other benefit from being shop steward. How- ever, despite his denial and his statement that he never exercised his authority with regard to choosing a vaca- tion time, on examination by me, Maccie stated that in the event one too many of the unit employees sought the same vacation time, he, Maccie, would not be bumped, but the junior man would, even though he had greater seniority than Maccie.' 6 On cross-examination, Maccie admitted being called to work quite frequently by the Company before 7 a.m. and being paid overtime for those early hours. ' He readily conceded that the basis for him getting the first opportunity to do overtime work was because of his position as shop steward. B. Analysis In Dairylea Cooperative, Inc.,S the Board held that su- perseniority clauses which are not on their face limited to layoff and recall' 9 are presumptively unlawful and the burden of establishing justification is with the party as- serting the legality of the clause. And, in A.P.A Transport Corp., 20 in considering a contractual provision which re- quired that union stewards be granted superseniority "for all purposes including layoff, rehire, bidding, and job preference," 2' the Board held that "mere maintenance of '" Il the example used in the transcript, Maccie names the junior man, Bochese. who happens to be ahead of Maccie on the seniority list. G.C Exh. 3. " See sec. 7(G) of the contract, supra. ' 219 NLRB 656 (1975), enfd 531 F.2d 1162 (2d Cir 1976). ' For the purposes of this Decision, I shall treat the word "rehire" which is used in the instant contract, as the equivalent of the word "recall" which is used in the Dairylea case and its progeny, 20 239 NLRB 1407 (1979). 2 This is the exact language of the superseniorit) clause in the instant case. a contract clause discriminatory on its face, without evi- dence of discriminatory enforcement or implementation, is sufficient to find a violation of Section 8(b)(l)(A) and (2) and Section 8(a)(3) and (I) of the Act," and the Board concluded that the clause in dispute was presump- tively illegal and discriminatory. In light of the Board's holdings in these cases, and their application to the facts in the instant case, I must conclude that the supersenior- ity clause in section 22(B) of the collective-bargaining agreement is an "all purposes" clause which is presump- tively illegal and discriminatory. 2 Before proceeding, however, to the question of wheth- er the Respondents have successfully rebutted the pre- sumption by establishing justification for the clause, I am initially confronted with Respondent Union's contention that the clause in question does not interfere with, re- strain, or coerce the employees because in the instant case, unlike Dairylea, the steward is elected, not appoint- ed, to the position, by vote of the eligible employees, without interference by the Union. The Respondent Union lays great stress on this contention and makes the argument that, where a collective-bargaining agreement contains a lawful union-security clause requiring mem- bership in the union by every employee in the bargaining unit, as in the instant case, any employee, whether he is active or not in the union, is eligible to be elected shop steward; and since in this manner the Union has not ex- ercised any control in the selection of the steward, it has not interfered with, restrained, or coerced employees in the exercise of their Section 7 rights, a necessary prereq- uisite for a Dairylea result. 23 The Board has been faced with this argument before. In W. R. Grace & Co., 230 NLRB 259 (1977), the Board affirmed the rulings, find- ings, and conclusions of Administrative Law Judge Robert M. Schwartzbart wherein he commented (at 262): Although the majority in Dairylea did discuss the fact that, in that case, employees could gain super- seniority only by being appointed to the position of steward by their union's hierarchy, at no point did the Board restrict its analysis to situations where of- ficials were appointed to office, or preclude its ap- plication to situations where union officers were elected to their positions. Whether union officials are elected or appointed, in either case, the objec- tive would be to select officers who would effec- tively advocate the position of the Union as the em- ' Prestor Trucking Company, Inc., 236 NLRB 464 (1978) see ChauJ: fears. Teamsters and Ihelpers Local nion ,, No. 633 of Neew Hampshire, a/w International Brotherhood of' 7,eamsters, Chauffeurs. Warehousemen and Helpers of America (Interstarc Motor Flreight System. Inc.). 230 NLRB 81, fil. I (1977). ':' Respondent Union cites Motion Picture Laboratory chnicians, Local 780. Internarional .4lliance of heatrical Stage Emnployees and Motion, Pic- lure Opcrators of the Uilted States and Canada, 4FL-CIO (lMcGregor- Werner, Inc.), 227 NI.RB 558 (197h), s favoring this position I do not agree. It McGregor- Werner, the contract provided, inter alia, that the unliotn stewards are to be given top seniority "for purposes of layoff, recall ad shift preference," and the Board, in finding the clause lawful, colncluded that the steward used his superseniority to retain the same job classification on another shift that he had prior to the discontinuation of the old shift, in order to serve the legitimate purpose of having the con- tillued presence of a stesAard on the job The Board's reference to the election of the steward was dicta ad was not dispositise of the case. 690 LIQUID CARBONIC CORPORATIONI()N. INC ployees' representative. I, therefore, do not find the distinction between elected and appointed stewards particularly meaningful. Moreover, to be eligible to hold union office, or even to vote in an election for those who would hold office, employees must be members of the Respondent Union. Most signifi- cantly, the underlined policy of the Act in this area is to separate union activities firom terms and condi- tions of employment. Thus, it is the given situation which is proscribed, not the means by which that situation is created. For these reasons, I find that the fact that the Respondent Union's steward was elected rather than appointed does not preclude ap- plication of the Dairylea principle to the clause granting stewards superseniority for job benefits which are not on their face limited to layoff or recall. And, in Perfection Automotive Products Corporation, 232 NLRB 690 (1977), the superseniority clause was found to be unlawful wherein the steward was elected under cir- cumstances strikingly similar to those in the instant case. Under the circumstances, I reject Respondent Union's contention and find no distinction between election and appointment of shop stewards when faced with a pre- sumptively unlawful superseniority clause. I turn now to Respondent Union's contention that the evidence presented has successfully rebutted the pre- sumption of invalidity and has established sufficient busi- ness justification for the maintenance and enforcement of the superseniority clause. The consideration most often relied upon to justify superseniority for stewards is the asserted need to have a steward present on the job so that he can perform day-to-day contract administration functions, including grievance handling, for the unit em- ployees. In my examination of the evidence presented by Respondent Union, I do not find the justification offered to be sufficient. In fact, I find very little evidence offered to show justification. Rather, I find Respondent Union engaging in a refutation of the General Counsel's evi- dence by attempting to establish the fact that the super- seniority clause's broad mandate had not been applied. While I am inclined to agree with Respondent Union's contention that the evidence offered by the General Counsel falls far short of the mark in demonstrating the enforcement of the clause, except for the weekend and holiday area which is readily admitted by Respondent Union, I am equally unable to find that the Respondents justified the maintenance of such a broad superseniority clause. Although Respondent Union showed that Maccie had processed grievances, it did not adequately demon- strate to me that the preferences that Maccie received in performing weekend and holiday work bore any direct relationship to furthering the effective administration of the contract. Both Seconish and Maccie testified that Maccie would process grievances received on a particu- lar day either that night or the next morning. But, no at- tempt was made by Respondent Union to show, either by the introduction of records or oral testimony, that Maccie could not satisfactorily carry out his responsibil- ities without exercising his superseniority; and no evi- dence was offered to show that grievances were proc- essed on weekends and holidays. When a union attempts to justify the application of a superseniority clause to shop steward in a situation where the clause goes beyond layoff and recall, the Board will strictly scrutinize this enforcement, and the union must bear the burden of demonstrating the necessity for the clause.24 As for Re- spondent Union's alternative contention on this point, i.e., the clause is inoperative, in the absence of an affirm- ative showing that the unlawful clause has been eradicat- ed by practice the Board has held that such a clause is, unless adequately justified, violative of the Act merely by its maintenance since it has "the inherent tendency . . . to discriminate against employees for union related reasons. "' Moreover, although the evidence presented by the General Counsel through his one witness does not sustain the enforcement allegation in the complaint in all respects," it does state sufficient unrefuted facts to show enforcement of the invalid clause. As stated above, Maccie readily admitted that he was the first employee assigned to weekend and holiday runs, and that he is fre- quently called to work by Respondent Company before 7 a.m. and paid overtime for the early hours, all because of his position as shop steward. In addition, as shown on the vacation list, Maccie is number , and although it was not proven by the General Counsel that he "bumped" anyone on the list, it is clear to me that he had first choice.2 7 Respondent Union further contends in its brief that, should a violation be found, it should be limited to week- end and holiday work. For the reasons stated above, in which I have found that, in addition to weekend and holiday work, the Respondents have permitted Maccie to exercise his superseniority as shop steward, unlawfully, in the area of early hour overtime and vacations,2 I hereby reject this contentionl. 2 Under the circumstances of this case, I find that sec- tion 22(b) of the collective-bargaining agreement which accords superseniority to Respondent Union's steward for all purposes including layoff, rehire, bidding, and job preference, such as delivery' of early loads, overtime work on weekends and holidays, and vacations, is pre- sumptively unlawful. It further is concluded that the Re- spondents have not demonstrated sufficient justification 2 Se Prol,ln Irl ucting (Compan. In·. ruprr at 405 21 Sect Perfb;/lciit .-lulrloiive Products. supra. o I do not credit Vaccaro's tesilniony ith regard tl Maccie Iring giten loinger uo'er-the-road trips, or ever being "humped" by Maccie, or Maccie getting better paying jobs His testilmon) as unconvincing in that he U as unable to detail a single occurrence specifically and he of- fered no record proof e'f such occurrences 2' hile he conItract does not state hat acation shall he subject to seniollit , the list is compiled in seni rit order, and I finld thal seniorit gocrnis this benefit its isell as the others subjectc t the supersenliority clause '" In;asmuch as a Xlcation benefitl, limited (only to he questionll as to when it should be taken, is not subject to allN loiss of earnings, I shall not order a monetar;r remlied i this respect. 2' Respondet lrnion's final collrnlitoll is that anc backpa aard should onl) h'e asscsd agai isl Responldeint Ciompaiyi. hecause i had slle coitlo l ircer the asslgnmlellt f so rk; the Unionr cites Mauli Surf /Itrel/ CUrmpanyi. 235 NRB I')57 (1978), in support Suffice IIt t say that the Unionl has cited all excerpl fronlt (lie dlissil ill that case and, moreover, Llike tile coirglleci e-hirgig agreement i the case cited, the suIperset- irii c liis. e iherein i earll inconsistelil Kith the Act, rationale This corlICllir 1 Is hLtrelCile rewctel 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to rebut this presumption by their failure to establish that such benefits have the effect of furthering the effective administration of the collective-bargaining agreements and the bargaining relationship. Accordingly, it is found that, by maintaining and enforcing the superseniority clause, Respondent Company has violated Section 8(a)(l) and (3) of the Act and Respondent Union has violated Section 8(b)(l)(A) and (2) of the Act. Moreover, by ac- cording Steward Maccie superseniority with respect to the assignment of early hour runs before 7 a.m. and paying him overtime for them, and by giving Maccie the first opportunity to perform overtime work on weekends and holidays, the Respondents have discriminated against employee Vaccaro in violation of Section 8(a)(l) and (3) and Section 8(b)(l)(A) and (2) of the Act. CONCI.USIONS OF LAW 1. Liquid Carbonic Corporation, Inc., is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and at all times material herein has been, a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a seniority clause in their collectivc-bargaining agreement, according union stewards superseniority for terms and conditions of em- ployment not limited to layoff and recall, Respondent Company and Respondent Union have engaged in, and are engaging in, unfair labor practices within the mean- ing of Section 8(a)(l) and (3) and Section 8(b)(1)(A) and (2) of the Act, respectively. 4. By discriminating against Angelo Vaccaro in assign- ing superseniority to Respondent Union's steward with respect to the assignment of early hour runs before 7 a.m. and paying him overtime for them, and by giving the steward the first opportunity to perform overtime work on weekends and holidays, the Respondents en- gaged in further violations of the foregoing sections of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. And, having found that the Respondents have dis- criminated against Angelo Vaccaro by so applying the unlawful superseniority clause as to deny Vaccaro the as- signment of early hour runs before 7 a.m. and overtime work on weekends and holidays, I shall recommend that the Respondents, jointly and severally, make Vaccaro whole for any loss of earnings he may have sustained as a result of the discrimination against him. Backpay shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isi Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER3 0 A. The Respondent Company, Liquid Carbonic Cor- poration, Inc., Chicago, Illinois, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Maintaining and enforcing collective-bargaining provisions with Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, according union stewards superseniority with respect to terms and conditions of employment other than layoff or recall. (b) Discriminating against Angelo Vaccaro, or any other employee, in the assignment of early hour runs before 7 a.m. and overtime work on weekends and holi- days, or any other term and condition of employment other than layoff or recall, by according seniority to the union steward in the assignment of such terms and condi- tions of employment where the union steward, in fact, does not have seniority in terms of length of employ- ment. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Union make Angelo Vaccaro whole for any loss of earnings he may have suffered as a result of the discrimination against him, such earnings to be determined in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due with respect to the work assignments and overtime pre- mium pay under the terms of this Order. (c) Post at its establishment in Kearny, New Jersey, copies of the attached notices marked "Appendix A" and "Appendix B." 31 Copies of said notice, on forms pro- vided by the Regional Director for Region 22, after being duly signed by representatives of Respondent Company and Respondent Union, shall be posted by Re- i' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, ad Order. and all objections thereto shall be deemed waived fir all purposes. :" In the eent that this Order is enforced by a Judgment of a United States Court of Appeals, he words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L.abor Relations Board. 692 LIQUID CARBONIC CORPORATION, INC. spondent Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to 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. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent Company has taken to comply here- with. B. Respondent Union, Local 478, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to those clauses in its collective-bargaining agreements with Respondent Company, Liquid Carbonic Corpora- tion, Inc., according union stewards' superseniority with respect to terms and conditions of employment other than layoff and recall. (b) Causing or attempting to cause Respondent Com- pany to discriminate against employees in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coerc- ing the employees of Respondent Company in the exer- cise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Company make Angelo Vaccaro whole for any loss of earnings he may have suffered by reason of the discrimination against him, such lost earnings to be determined in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its office and meeting halls used by or fre- quented by its members and employees it represents at Respondent Company's Kearny, New Jersey, facility copies of the attached notices marked "Appendix A" and "Appendix B."32 Copies of said notice, on forms pro- vided by the Regional Director for Region 22, after being duly signed by representatives of Respondent Company and Respondent Union, respectively, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by Respondent Union for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to the above-described members and employees are customarily posted. Reason- able steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. 32 See fn. 31. supra. APPENDIX A NoTicE To EMPI.OYE:S POSTED BY ORDER OF THE NATIONAI. LABOR RE ATIONS BOARD An Agency of the United States Government After a hearing in which we were represented and pre- sented evidence, it has been found that we have violated the National Labor Relations Act in certain respects. To correct and remedy these violations, we have been di- rected to take certain actions and to post this notice. WE Wll. NOT maintain and enforce any agree- ment with Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, giving union stewards top seniority no matter what their length of employment with re- spect to terms and conditions of employment, except for layoff and recall. 'Wfi WlI.I NOTr discriminate against Angelo Vac- caro, or any other employee, in the assignment of early hour runs before 7 a.m. and overtime work on weekends and holidays, or any other terms or con- ditions of employment other than layoff and recall, by according seniority to a union steward when such union steward, in fact, does not have seniority in terms of length of employment. WE Wll Nor in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE wilt Nor jointly and severally with the above-named Union pay, with interest. Angelo Vac- caro any earnings lost as a result of assigning early hour runs before 7 a.m. and overtime work on weekends and holidays to the union steward rather than to Vaccaro when Vaccaro had seniority in terms of length of service. LIQUi) CARBONIC CORPORATION, INC. APPENDIX B NOTICE To MEMBERS POST E) BY ORI)ER OI THE NATIONAl. LABOR RFIATIONS BOARD An Agency of the United States Government After a hearing in which we were represented and pre- sented evidence, it has been found that we have violated the National Labor Relations Act in certain respects. To correct and remedy these violations, we have been di- rected to take certain actions and to post this notice. WE wi I NOI maintain and enforce any agree- ment with l.iquid Carbonic Corporation. Inc., or any other employer, giving our stewards or other representatives top seniority no matter what their length of employment, with respect to terms and conditions of employment, except for layoff and recall. 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT cause or seek to cause Liquid Car- bonic Corporation, Inc., to discriminate against Angelo Vaccaro or any other employer in the as- signment of early hour runs before 7 a.m. and over- time work on weekends and holidays, or any other terms or conditions of employment other than layoff and recall, by according seniority to a union steward when such steward, in fact, does not have top seniority in terms of length of employment. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of thier rights protected by Section 7 of the Act. WE: wIL., jointly and severally with Liquid Car- bonic Corporation, Inc., pay, with interest, Angelo Vaccaro any earnings lost as a result of assigning early hour runs before 7 a.m. and overtime work on weekends and holiays to the union steward rather than to Vaccaro when Vaccaro had seniority in terms of length of service. LOCAL 478, INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA 694