Parker-Hannifin Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Parker-Hannifin Corporation and Curry Loggains District No. 8, International Association of Machinists and Aerospace Workers and Curry Loggains. Case 13-CA- 15009 and 13-CB-6366 August 30, 1977 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On November 3, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The facts are not in dispute and are fully set out in the Administrative Law Judge's Decision. The case involves the application of the superseniority provi- sions of Respondents' collective-bargaining agree- ment.' In November 1975, because of economic reasons, Respondent Employer found it necessary to layoff a number of employees and to require others to step or bump down to lower paying positions. At that time the Employer reduced the number of welders in the group 4 classification from two to one. Lester Hensley, one of the group 4 welders, was union shop committee chairman with responsibilities for the entire unit similar to those normally associ- ated with the position of steward, including grievance handling and contract negotiation. Charging Party Curry Loggains, the other group 4 welder, had greater actual seniority in both the plant and the classification. However, because of Lester Hensley's position as committee chairman, the Union request- ed that the superseniority provision of the contract be applied to him, resulting in the Employer's I The pertinent clauses of the collective-bargaining agreement read as follows: Seniority. The principle of seniority is hereby established to provide a declared policy of right of preference as to lay-off and rehiring, measured by length of continuous service upon the payroll of the company within a plant. Layoff requirements. In the event of a reduction in force, the last man to enter a job classification shall be the first man to be laid off or step down. Employees shall be laid off or stepped down in accordance with length of service within a classification or as designated below, 231 NLRB No. 164 requiring Curry Loggains to step down to labor grade classification 9 at a reduction in pay from $6.58 to $5.04 per hour.2 The record establishes that Lester Hensley had sufficient actual seniority to remain an active employee and avoid layoff by bumping down to a lower labor classification. The General Counsel contends and the Adminis- trative Law Judge found that Respondent Union violated Section 8(b)(l)(A) and (2) of the Act and Respondent Employer violated Section 8(a)(l) and (3) of the Act by maintaining and applying a superseniority clause which goes beyond layoff and recall and is contrary to the Board's decision in Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (C.A. 2, 1976). The Administra- tive Law Judge found that the superseniority clause accorded the union agent the better of two jobs available without legitimate justification relevant to the agent's duties since he would, in any event, remain an active employee in the plant. Because of the superseniority clause, Hensley did receive a substantial economic benefit-somewhat over $3,000 projected on a yearly basis. In fact, the gain is identical to that which an employee would receive using superseniority to get promoted from labor grade 9 to labor grade 4.3 Here, however, supersen- iority was used, not to obtain promotion, but to prevent demotion. That makes the difference. In Dairylea Cooperative Inc., supra, the Board held that superseniority clauses which operate to keep a union steward on the job are permissible because the steward's functions benefit all unit employees. The governing considerations were stated at 658: [I]n view of the inherent tendency of super seniority clauses to discriminate against employ- ees for union-related reasons . .. we do find that super seniority clauses which are not on their face limited to layoff and recall are presumptively unlawful, and that the burden of rebutting that presumption (i.e., establishing justification) rests on the shoulders of the party asserting their legality. [Emphasis supplied.] A superseniority clause which protects a steward from downgrading is more than is strictly necessary to protect a steward from layoff because he could perform his steward functions as long as he remained which shall be the controlling factor where skill and ability to perform the available jobs are relatively equal. Union shop committeemen. Each shop committeemen shall head the senionty list in his classification providing he has five years seniority. 2 Curry Loggains was a shop committeeman (i.e., steward) but with responsibilities only for his department on his shift. Thus, Hensley benefited from what can be called "super-superseniority." 3 No allegation was made that the clause herein would permit this. 884 PARKER-HANNIFIN CORP. on the job in some capacity. Such strict application of Dairylea, however, ignores the realities of collec- tive-bargaining and the working relationship between employer and employees. The difficulties in negotiat- ing, drafting, and administering a collective-bargain- ing agreement must of practical necessity permit a degree of flexibility, albeit limited, in the formulation of superseniority clauses. What is involved here is drawing a line between those provisions which are presumptively impermissible and those which are permitted under the Act. We believe that supersen- iority which, in the event of layoffs or job elimina- tions, permits a steward to keep his particular job or classification and protects him from downgrading is a reasonable means to achieve the permitted end of keeping him on the job. Under such provisions, the steward does economically benefit, but the gain is incidental to the aim of protecting the steward from layoff. The steward does not get a new gain, but merely maintains his status; he does not initiate the gain, but it results from the employer's economic condition. For these reasons, we find that supersen- iority which permits a steward to maintain his status (or nearly equivalent status) in the event of a slowdown falls within the Dairylea definition of layoff and recall and is not presumptively unlawful. The Board has recently held that superseniority provisions similar to the one here are lawful. In 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), the steward, whose shift had been eliminated, used superseniority to laterally bump a more senior employee in the same position on a different shift. The Board found that there was no "illegality in permitting him to retain his status." In Hospital Service Plan of New Jersey and Medical- Surgical Plan of New Jersey, 227 NLRB 585 (1976), the steward, whose job was eliminated, used super- seniority to bump a more senior employee with the same job classification. In finding the clause lawful, the Board specifically rejected the contention that "superseniority may be invoked only to prevent an actual layoff." The situations in the above cases are legally equivalent to the situation in the instant case-superseniority was used to protect the stew- ard's job status, as well as his tenure on the job.4 For the above reasons, we find that the supersen- iority provision herein and the manner in which it was applied are lawful and shall accordingly dismiss the complaints in their entirety. That the events herein are essentially the same is readily apparent if viewed as follows: Committee Chairman Hensley's job was eliminated and he laterally bumped Charging Party Loggains. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaints herein be, and they hereby are, dismissed in their entirety. MEMBER JENKINS, dissenting: In Dairylea,5 a majority of this Board recognized that superseniority is discriminatory by its very nature because it benefits certain employees over others solely on the basis of their respective status in a labor organization. At the same time, however, we also recognized that certain forms of union supersen- iority may serve to benefit the interests of bargaining unit employees generally. With this in mind, we decided in Dairylea not to declare unlawful any particular form of union superseniority but rather to require that justification for the use of such a clause be demonstrated in terms of its overriding benefit to all unit employees. By the same token, the only union superseniority clauses which we were willing to accept as valid on their face were those which served only to protect the layoff and recall right of job stewards and this was because of our recognition of (1) the role the job steward plays in the day-to-day administration of the collective-bargaining agree- ment; (2) the fact that his performance inures to the benefit of all employees; and (3) the fact that his presence on the job is necessary for such perfor- mance. My colleagues' resolution of the issue presented in this proceeding is a complete departure from the principles laid down in Dairylea. Here, the union superseniority clause was used during the course of a general layoff to prevent the union committee chairman from being forced to take a lower paying job. As a result, an employee with longer actual service was forced to take the lower paying job. How this action served to benefit the unit employ- ees is a mystery to me. The union committee chairman was not faced with layoff and there is no suggestion that he would not have been able to perform his union duties equally as well in the lower paying job. What my colleagues are protecting here is the economic status of the committee chairman, thereby rewarding the individual because of his position in the Union and nothing else. No attempt is made by my colleagues to explain how the retention of the committee chairman in the higher paying job will serve the interests of the unit employees. Instead, my colleagues attempt to analogize downgrading 5 Dairylea Cooperative Inc., 219 NLRB 656 (1975). enfd. 531 F.2d 1162 (C.A. 2. 1976). 885 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with layoff and pretend that like situations are presented. This is simply not the case. The layoff of a steward denies the employee the benefit of his skill and experience in the initiation and processing of grievances. The downgrading of a steward or committeeman does not in and of itself impede him in any way from performing his official duties. It is only where the downgrading would predictably restrict the steward in the performance of his duties that the two situations can at all be analogized and, even in this latter situation, the burden is with the Respondent to show that the downgranding adverse- ly affected the steward's performance of his function. For these reasons, I would find that the union superseniority clause was unlawfully applied in this instance and I would adopt the findings, conclusions, and recommendations of the Administrative Law Judge. DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hearing in this proceeding was held on September 3, 1976, at Chicago, Illinois, on separate complaints of the General Counsel against Parker-Hannifin Corporation, herein called the Company, or the Company Respondent (Case 13-CA-15009), and against District No. 8, International Association of Machinists and Aerospace Workers, herein called the Union, or the Union Respondent (Case 13CB- 6366). The original complaint against the Company issued on February 9, 1976, upon a charge filed on January 5, 1976, by Curry Loggains, an individual, herein called the Charging Party. The original complaint against the Union issued on January 21, 1976, upon a charge filed on November 14, 1975, by the same Charging Party. The two cases were consolidated for single hearing. The essential question to be decided is whether, because of illegal superseniority for union agents, the collective-bargaining agreement in effect during 1975 between the two Respon- dents proves violations of Section 8(a)(1) and (3) of the Act by the Company, and Section 8(b)(1)(A) and (2) by the Union, and whether implementation of that contract with respect to the Charging Party constituted further unfair labor practices by both Respondents. Briefs were filed by the General Counsel and the Union. Upon the entire record, and from my observation of the witnesses, I make the following: ' FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Parker-Hannifin Corporation, a State of Ohio corpora- tion, maintains an office and place of business in Des Plaines, Illinois, where it is engaged in the manufacture of hydraulic cylinders. During the last calendar year, a 'A posthearing motion by the General Counsel to correct certain typographical errors in the transcript is hereby granted. representative period, in the course of its business it had a gross volume in excess of $1 million and during the same period purchased materials valued in excess of $50,000 directly from out-of-state sources. I find that the Respon- dent Employer is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that District No. 8, International Association of Machinists and Aerospace Workers, is a labor organization within the meaning of Section 2(5) of the Act. Il. THE UNFAIR LABOR PRACTICES This case involves a pure question of law; the facts are not in dispute. It has long been a rule of law that employers and unions may by contract agree that there be discrimina- tion in employment in favor of union agents merely because they are union agents, notwithstanding the seemingly contrary provisions of the statute. Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521. The contract in effect between the two Respondents here did give preferred status to union agents. In its recent decision in Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. sub nom. N. L R.B. v. Milk Drivers & Dairy Employees, Local 338, Teamsters, 531 F.2d 1162 (C.A. 2, 1976), the Board delineated one area of limitation upon the preferen- tial treatment that could lawfully be conferred upon union agents. Under that ruling, preferential treatment of union agents limited to "layoff and recall" is lawful because it serves the Union's legitimate interest in keeping its representatives in the plant to further effective administra- tion of the contract. In contrast, the rule calls presumptive- ly illegal a contract clause which goes beyond layoff and recall because it serves no other aim than "giving union stewards special economic and other on the job benefits solely because of their position in the union." The complaint here alleges the contract in question exceeds the limits proscribed in Dairylea, and, of course, that application of the contract terms, to the detriment of the Charging Party employee, became an impermissible discrimination in employment in favor of the union officer favored in consequence. The Facts The pertinent clauses of the collective-bargaining agree- ment read as follows: Seniority. The principle of seniority is hereby established to provide a declared policy of right of preference as to layoff and rehiring, measured by length of continuous service upon the payroll of the company within a plant. Layoff requirements. In the event of a reduction in force, the last man to enter a job classification shall be the first man to be laid off or step-down. Employees shall be laid off or stepped-down in accordance with length of service within a classification or as designated 886 PARKER-HANNIFIN CORP. below, which shall be the controlling factor where skill and ability to perform the available jobs are relatively equal. Union shop committeemen. Each shop committee- man shall head the seniority list in his classification providing he has five years seniority. Of significance here are the words "seniority" in the first and third clauses set out, and the words "step-down," and "stepped-down" in the second quoted paragraph. The word "seniority," of itself, does not make clear what benefits, or preferential treatment, in employment flow to the holder of seniority. It may or may not confer on the job benefits apart from protection only against outright discharge and first chance at recall to employment. The word itself is therefore ambiguous, and whether or not, standing alone in a collective-bargaining agreement, it proves a violation of the statute may be a question. But that question is not reached in this case because the further words "step-down," and "stepped-down," remove any ambiguity and show beyond question that the holder of such seniority in fact is assured preferred treatment apart from discharge alone. The "layoff requirements" says the last man who enters ajob classification shall be the first "to be laid off or stepped-down." If "stepped-down" were synonymous with "laid off," there would be no purpose in referring to "stepped-down" at all. Of necessity the clause is therefore speaking of both outright loss of employment and lesser hurt; i.e., reduction to a lesser paying or less desirable work assignment. On its face, therefore, this contract must be read as exceeding the limits of what the Board held in Dairylea to be "permissible" discrimination in favor of union agents. Unless, as the Board also said in Dairylea, the parties to the contract come forth with convincing "justification" for a contrary holding, "we do find that super seniority clauses which are not on their face limited to layoff and recall are presumptively unlawful, and that the burden of rebutting that presumption (i.e., establishingjustification) rests on the shoulders of the party asserting their legality." And the agreed-upon facts of how the disputed clauses were implemented in the case of Loggains only illustrate more clearly the true intendment of the contract. In November 1975 two men, Loggains and Lester Hensley, were welders in employee classification group four; both were union agents, Loggains a committeeman and Hensley shop chairman. Loggains was hired in 1957 and therefore held plant seniority of 18 years. Hensley was hired in 1959 and held 16 years' plant seniority. Loggains moved into the group four welder classification in 1959 and Hensley did the same in 1962. Loggains therefore held 16 years' seniority in his group four classification, and Hensley only 13 years. They were the only group four welders at the time. That month there was They economic reduction in force, the Company thereafter needing only one such welder. One had to go. But because of their overall seniority, whoever was to go had a right to bump down, or, in the contract language, "step-down" into a lower and lesser paid classification. On November 5 the Company made a preliminary decision to drop Loggains instead of Hensley, and so advised the Union. Loggains objected: the company representative told him "it was a union request, that he wanted to go by contract, but the union had requested it this way, and that is the way he done it. He was only do [sic] it with their request." With this, Loggains spoke to Bob Stoops, business representative of the Union, who said it was all because his supervisor, George Janis, had so told him and, when Loggains said he would go to the NLRB, Stoops said he could do that. Loggains then filed a grievance pursuant to the contract. At the second step the Union took the position it had no merit and the Company let the matter die there. No further steps were taken by the Union; the contract contains no provisions for arbitration. Loggains was then "stepped-down" to classification nine, at an hourly rate reduction from $6.58 to $5.04. Hensley remained in the welder classification group four. Defense 1. Before the hearing in this case took place all parties signed an agreed-upon stipulation of facts, decided to bypass the hearing, and moved that the Board itself decide the merits of the complaints in the first instance. The Board refused to process the case in that manner. The Respon- dents now ask dismissal of the complaints for such reason. There is no merit in the position. The complaints, as later amplified and amended, are clear and sufficient. The Union filed an answer to the amended complaint; the Company chose not to respond to the amendment. The evidence in support of the complaints was put into evidence in regular course, and both Respondents had full opportunity to deny or supplement. They chose to call no witnesses in defense. There is no basis for the Respondents' contention that the Board's failure to explicate its reasons for sending the case to regular hearing misled or deceived either the Company or the Union. 2. At the start of the hearing the Respondents proposed to the Administrative Law Judge that the issue raised by the complaints be disposed of by binding arbitration. What they meant by this is that the Employer and the Union would select a mutually agreed-upon arbitrator and have him pass upon the merits of the grievance Loggains filed in November. Counsel for the Union said he would "offer the Charging Party every participation that he . . . deems necessary to protect his own interest." What the parties intend, in effect, by this "proposal," is a motion that this proceeding be deferred along the lines of the Collyer principle (Collyer Insulated Wire, 192 NLRB 837 (1971)). An arbitrator decides the merits of a grievance by reliance upon the contract as written - without regard to whether the contract is legal or illegal under this statute. The collective-bargaining agreement in this instance contains no provision for binding arbitration anyway. Moreover, the interest of the Union could not more clearly be aligned against that of the Charging Party. See Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB 543 (1972). 3. The Union's attempt to avoid the limiting strictures upon contractual superseniority for union agents rests upon the assertion supported by the evidence - that for some years it has been a rule, or a policy, of the Union to 887 DECISIONS OF NATIONAL LABOR RELATIONS BOARD select its shop chairmen from among the holders of jobs in the top four classification groups. The Union distinguishes between committeemen - such as Loggains - and chairmen, such as Hensley. There were two chairmen at the time - Hensley and Simms being cochairmen. Both remained at work as Loggains, with greater seniority, was "stepped-down." In support of the contention that this union rule has "a legitimate statutory purpose," the Union says only more experienced workmen, the higher paid, the more knowledgeable about the contract, union affairs, and the merits of grievances - past and present - are qualified. From this statement of fact - with which I cannot quarrel, the Union then reasons it had a right to insist the chairman remain in group classification four in order to discharge his duties. But the method whereby a union, or the employees themselves, choose to select a representative in the plant has nothing to do with where he works after he is chosen, or what preferential treatment at the hands of the employer may thereafter be permissible or impermissible. The collective-bargaining agreement in no way circumscribes the Union's freedom as to which employee to designate, upon which of its members, in effect, to confer greater job retention rights. Loggains, while admitting he heard of a union practice of selecting chairmen only from among the top four grades, said - without contradiction - that in his 19 years with the Company he had never heard of a chairman losing his union agent status merely because he "stepped-down" to a lower grade. Maybe the situation never developed, but there is no reason to believe a chairman chosen while in group four could not just as effectively function while doing the lesser skilled and lesser paid work; certainly no evidence so indicating was adduced. Even Hensley said no one ever told him that if he dropped from group four to group nine, as did Loggains, he would have to cease being the shop chairman. Surely, whatever personal qualifications he had as steward on the job would have remained with him. The shop chairman functions over the plant as a whole; he is the "the number one man in the shop," as counsel for the Union said at the hearing. As the Board said in Dairylea, the important thing, the determinative element in this superseniority situation, is that the union agent remain "in the plant." And the court agreed that the contractual preference is lawful because of the continued presence of the steward on the job. So long as the steward - or chairman, as in this case - is not discharged, but remains "on the job," "in the plant," all that case law permits has been accomplished. No one ever suggested Hensley was in danger of dismissal. Had he not been given the preferential treatment he would still have remained at work, albeit in group nine. If, as the Union says, it would in that case not have permitted him to continue serving as union agent, his removal from the position would have been its doing, not that of the Employer. From the Board's Decision in Dairylea (219 NLRB at 659): "[]t . . . remains the union's task to build and maintain its own organization, and where the immediate problem is simply a matter of encouraging employees to be stewards a union can alone handle the situation simply by paying employees .... I think this case is the perfect parallel to Dairylea. There the steward was given the better choice of work assign- ments - the better paying runs in the trucks to be driven. It was a discrimination in his favor based clearly upon his union activity and therefore violative of Section 8(a)(3) by the employer and violative of Section 8(b)(2) by the Union. Here, the contract provides - and the Union caused the Employer to accord to the union agent - the better of two jobs available - group four assignment instead of the lesser paying grade nine job. And no legitimate justifica- tion - relevant to Hensley's function as chairman - has been suggested at all. In short, there is a difference between "on the job" benefits, and retention or loss of any job and the right to remain in the plant. The fact Hensley is superior to Loggains in the union hierarchy, and higher in authority as union spokesman in grievances, is irrelevant to the question whether he should be paid more by the Employer. He is in the plant, and whatever his duties, or his reward from the Union, his services "to the benefit of all employees" remain the same. If, while occupying a lower paying job pursuant to the collective-bargaining agreement which treats all employees alike, he does not care to be a union agent, that is a matter for the organization to face and itself resolve.2 To say the employer must pay him more than others with greater seniority because the Union so desires is literally what both Section 8(b)(2) and Section 8(a)(3) of the Act hold may not be. And again, the Respondent Union here finds itself back at the beginning. Permission to grant superseniority to union agents by contract is limited to "layoff and recall." IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, and occurring in connection with Respondent Company's operations and those of the Respondent Union, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as it has been found that the union agent superseniority clauses here in dispute are unlawful, the Respondents must cease and desist from maintaining and enforcing those clauses in their current bargaining agree- ment or any future collective-bargaining agreement. Fol- lowing the unlawful demotion of the Charging Party to the lower paying job in implementation of the illegal union agent security clause, he was reinstated to his former position. Accordingly, there is no occasion here to order From the court's decision in the same case (531 F.2d at 1166): If a union finds that it must offer incentives to attract qualified stewards, it may pay a salary to the stewards .... 888 889 PARKER-HANNIFIN CORP. reinstatement to his old position as part of the remedy. But the Respondents must jointly make Curry Loggains whole for any loss of earnings he suffered in consequence of the demotion from grade four to group nine from November 1975 to the date when he was restored to his former higher paying position. And finally the Respondents must be ordered to cease and desist from in any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. CONCLUSIONS OF LAW 1. By maintaining and enforcing a seniority clause in their collective-bargaining agreements according union agents superseniority for terms and conditions of employ- ment not limited to layoff and recall, and by unlawfully applying such contract to the Charging Party, the Respon- dent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)( IX)(A) and (2) of the Act, and the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX 1) and (3) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce with the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]