Expedient Services, Inc.079

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Expedient Services, Inc. and Mary L. Wilson International Association of Machinists & Aerospace Workers Local Lodge 1306 and Mary L. Wilson. Cases 12-CA-7079 and 12-CB-1666 August 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS MURPHY AND WALTHER Upon charges filed by Mary L. Wilson, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a consolidated complaint on July 27, 1976, against Respondents Expedient Services, Inc., herein the Employer or Expedient, and International Association of Machinists & Aerospace Workers, Local Lodge 1306, herein Local Lodge 1306 or the Union. Copies of the charges, consolidated com- plaint, and notice of hearing before an Administra- tive Law Judge were duly served on the Respondents and Charging Party. In substance, the consolidated complaint alleges Expedient violated Section 8(a)(3) and (1) of the Act and Local Lodge 1306 violated Section 8(b)(1)(A) and (2) of the Act by maintaining and enforcing a collective-bargaining agreement which grants union stewards and/or principal offi- cers superseniority for purposes of layoff, recall, and demotion. The answers of Expedient and Local Lodge admit various allegations of the consolidated complaint but deny the commission of any unfair labor practices. On October 4, 1976, the Charging Party, General Counsel, and Respondents executed a stipulation in which they agreed that certain documents shall constitute the entire record herein' and that no oral testimony is necessary or desired by any of the parties. The parties waived all immediate proceed- ings before an Administrative Law Judge and petitioned that this case be transferred to the Board for the purposes of making findings of fact and conclusions of law and issuing an appropriate order, reserving to themselves only the right to object to the materiality, competency, or relevancy of any of the stipulated facts. By order dated February 9, 1977, the Board approved 2 the stipulation, and transferred the proceedings to itself. Thereafter, the General Counsel and Respondent Union filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the I The stipulated record consists of the charges, order consolidating cases, consolidated complaint, notice of hearing (an order postponing hearing indefinitely was subsequently issued by the Regional Director on September 22, 1976). the answers, stipulation, and exhibits thereto. 231 NLRB No. 151 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record, as stipulated by the parties, as well as the briefs filed by the General Counsel and Respondent Union, the Board makes the following findings and conclusions: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Respondent Employer, a Florida corporation, is engaged in the business of providing janitorial services to the National Aeronautics and Space Administration (NASA), an agency of the United States Government, at Kennedy Space Center (KSC) in Florida. During the past 12 months, Respondent Employer supplied janitorial services to NASA, at KSC, valued in excess of $50,000. The parties stipulated, and we find, that the Respondent Employer is now, and has been at all times material here, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZAtION INVOLVED The parties stipulated, and we find, that Respon- dent Local Lodge 1306 is now, and has been at all times material here, a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. The Issue The question presented is whether the Respondents violated Section 8(a)(3) and (1). 8(b)(1)(A), and 8(b)(2) by maintaining and enforcing a clause in their collective-bargaining agreement which reads: 19.3.1 For the purpose of layoff, recall from layoff, and demotions, union stewards, chief stewards and principal officers (president, vice president, recording secretary, secretary-treasur- er) will be deemed to hold the most seniority in service and classification seniority. B. The Stipulated Facts As indicated, the collective-bargaining agreement between Expedient and Local Lodge 1306 grants, to union stewards and principal officers, service and classification superseniority for purposes of layoff, recall, and demotion. Service seniority is an employ- ee's date of hire, classification seniority is the length 2 Members Jenkins and Penello dissented. 938 EXPEDIENT SERVICES, INC. of time he or she has held a particular job classification. Classification seniority is the applica- ble standard when demotion is involved, whereas service seniority controls in layoff consideration. On or about September 10, 1975, Respondent Expedient notified Charging Party Wilson, one of its five "cleaning specialists," that she would, effective the following day, be demoted to a janitor job classification. Wilson was hired on August 3, 1964, and had become a cleaning specialist on February 1, 1973. At the time Wilson was notified of her impending demotion, Dora Parker, a union steward and officer (recording secretary), was also employed as a cleaning specialist. She had held that classification since her date of hire, February 1, 1973. Thus Wilson and Parker held equal classification seniority, dating from February 1, 1973, but Wilson had approximate- ly 8-1/2 years' service seniority over Parker. That she did meant, in the absence of superseniority consider- ations, she was effectively "senior" to Parker within the cleaning specialist classification, since it has been Respondents' practice to utilize overall service seniority to "break ties" in classification seniority. Pursuant to Expedient's notification, Wilson be- came a janitor. Her addition to the janitor classifica- tion caused a layoff, governed by service seniority. The employee laid off held greater service seniority than steward Parker, so absent superseniority, Parker would have been laid off. It is, however, stipulated that Parker could have chosen not to exercise her classification superseniority (permitting the retention of Wilson as a cleaning specialist) and, thereupon, utilized her service superseniority to have prevented her layoff; and had she done so she would have remained as a steward, on the same shift previously worked, and in the same work area. C. Contentions of the Parties The General Counsel alleges the superseniority provision is violative in two fundamental respects. First, because it extends superseniority beyond layoff and recall and encompasses demotion determina- tions, the provision runs afoul of our holding in Dairyllea Cooperative Inc.3 Second, and without regard to whether or not such an extension is permissible, the entire provision is unlawful because its class of beneficiaries includes not only union stewards but "principal officers" of Local Lodge 1306. Respondent Union contends that the proceeding involves, in essence, only a layoff and not a demotion ' 219 Nl.RB 656 (1975), Member Fanning dissenting. enfd. sub norm. . 1 R B. v. h/A1. Drivers & Dairs Emploveev Ltoal 338. International Brotshierhood s1 tleansters, Chauffeurs. W4arehosusmen anid Helpers of ,4 rm iso, 51 1F 2d I 1 2 (( A 2, 1976). since the causative factor in Wilson's movement from cleaning specialist to Janitor was a "reduction in force" decision. The Respondent Union does not, however, dispute that Wilson was, indeed, demoted to janitor and that, had Parker so elected, she could have prevented her layoff and remained in the same work area, on the same shift, through the exercise of her service superseniority. Respondent Union also asserts the superseniority provisions are not unlawful by virtue of their coverage of union officers because, as stipulated, all officers are also stewards. The General Counsel responds that, because there is no requirement that officers be stewards, or the reverse, the Respondent Union's argument on this point deals in irrelevancy. 4 D. Discussion Our recent decisions in Hospital Service Plan of New Jersey and Medical-Surgical Plan of New Jersey, 227 NLRB 585 (1977),5 and United Electrical, Radio and Machine Workers of America, Local 623 (Limpco Mfg., Inc.), 230 NLRB 406 (1977), control the disposition of this case. Preliminarily, the extension of service superseniori- ty, under conditions where such seniority is the exclusive governing factor for layoff determinations, cannot be said to run afoul of Dairylea itself, at least to the extent the beneficiary is a union steward. In Dairylea, the Board held that providing a steward superseniority, for layoff purposes, was presumptive- ly valid. In Hospital Service Plan, supra, the applicable contractual provision provided stewards "super-se- niority for layoff purposes only." By virtue of a supplementary agreement between the parties, how- ever, a union steward, when faced with the deletion of his position, was permitted to displace any employee senior to himself if no position of equal grade level was open or available. The steward in that case had his accountant grade level VI position deleted. Exercising his superseniority, he bumped a senior accountant grade level VI, who, in turn, "bumped down" to a level V position, displacing the incumbent. Significantly, the steward "could have bumped downward into the grade V accountant position ... and still be kept on the job." 6 We found the procedure did not violate the statute. Although Hospital Service Plan involved a provi- sion limited, by its terms, to "layoff only," it was, as the above-recited facts make clear, a provision which did more than that. It not only insulated the steward from layoff, but, by providing the steward with the 4 As indicated at the outset, the Respondent Employer did not file a brief. Chairman Fanning concurred. ' 227 NLRB at 587. 939 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to laterally bump for grade level retention purposes, also insulated him from, in effect, "demo- tion." And the decision in Hospital Service Plan acknowledged the substantial relationship between the two. If . . . superseniority for stewards does not permit lateral bumping, then it means nothing at all. To require a steward to exercise superseniority only to take the lowest-rated job rather than be laid off would hardly aid in retaining stewards, except perhaps in dire economic circumstances when no other position could be found elsewhere. The rationale of that holding fully applies here. Parker's exercise of her classification superseniority was, like a lateral movement, intended to retain what she had: she did not, by virtue of the superseniority rights she held, gain anything. 7 That exercise was, we affirm, a valid one and does not contravene our Dairylea holding. So too, the breadth of the beneficiary class of the clause presented here does not conflict with Dairylea. And we agree with Respondent's assertion that the extension of similar superseniority, for similar pur- poses only, to union officers, is in keeping with the legitimate objectives Dairylea articulated. As we stated in Limpco, Mfg., supra: 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 the job. The Act guarantees employees the right to be so represented through the collective-bargaining process. In fact, perhaps the most important union officer, the president, is usually not involved in grievance proceedings. In concluding that Dairylea could not fairly be read to circumscribe which union representatives could be accorded otherwise lawful superseniority, 7 Member Murphy, as set forth in her concurring opinion in Union Carbide Corporation Chemical and Plastics Operations Division, 228 NLRB 1152 (1977). would find presumptively lawful job retention superseniority clauses, including layoff, recall, shift assignment, or retention of the same Limpco, Mfg. held that, if the benefited officers in question posessed responsibilities "bear[ing] a direct relationship to the effective and efficient representa- tion of unit employees," the officers were not barred, by the statute, from enjoying the benefits. Here, where all union officers are also stewards, that test is, necessarily, met. Moreover, the General Counsel does not dispute the assertion that local lodge officers participated in the negotiation of, not only collective-bargaining agreements but also, subsequent supplements and amendments. The current contract between the Respondents was signed by Parker. Finally, although the situation necessarily has not arisen because all officers are currently stewards, in the event that ceases to be the case, stewards and officers, pursuant to local bylaws, are the exclusive attendees at regular and monthly "stewards meetings." The inference to be drawn from that is, we think, clear-that officers provide guid- ance and, at times, instruction to the stewards as the latter attempt to fulfill their responsibilities. There is, then, no affirmative showing that the functions of officers, even without regard to their simultaneous duties as stewards, do not relate in general to furthering the bargaining relationship. For all the above reasons, we conclude no violations of the statute have been established and we shall, accordingly, dismiss the consolidated complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the consolidated complaint herein be, and it hereby is, dismissed in its entirety. CHAIRMAN FANNING, concurring: I concur in my colleagues' disposition, for the reasons set forth in my dissent in Dairylea Coopera- tive, Inc., 219 NLRB 656 (1975), and in my concurring position as set forth in United Electrical, Radio & Machine Workers of America, Local 623 (Limpco Mfg., Inc.), 230 NLRB 406, fn. 5 (1977). job or same category of job during incumbency in such position, for union stewards and officers whose functions relate in general to furthering the bargaining relationship. 940