Chauffeurs, Local 633, Teamsters

CHAUFFEURS, LOCAL 633, TEAMSTERS Chauffeurs, Teamsters and Helpers Local Union No. 633 of New Hampshire, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Richard J. Laughton, Sr. and Interstate Motor Freight System, Inc, et al., Parties to the Contract. Case 1-CB-3134 June 10, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On December 30, 1976, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Chauffeurs, Teamsters and Helpers Local Union No. 633 of New Hampshire, a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Manchester, New Hampshire, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order, as so modified. I The Administrative Law Judge found that the superseniority clause at issue herein is unlawful because it accords stewards superseniority for purposes other than merely layoff and recall. While we agree with the Administrative Law Judge that the clause is overly broad and hence unlawful, we so find because it grants superseniority for all purposes, not merely those pertaining to job retention, including layoff and recall. Cf. Hospital Service Plan of New Jersey and Medical-Surgical Plan of New Jersey, 227 NLRB 585 (1976), and 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). Member Murphy further notes, in accordance with her concurring opinion in Union Carbide Corporation. Chemical and Plastics Operations Division, 228 NLRB 1152 (1977), that she would find presumptively lawful job retention superseniority clauses for union stewards or officers whose functions relate to furthering the bargaining relationship. 2 Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (C.A. 2, 1976). 230 NLRB No. 8 1. Substitute the following paragraph for para- graph l(a): "(a) Maintaining, enforcing, or otherwise giving effect to those clauses in its collective-bargaining agreements with the Parties in Interest named in Appendix A which accord union stewards supersen- iority for purposes other than job retention, including layoff and recall." 2. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN FANNING, dissenting: I would dismiss the complaint for the reasons set forth in my dissenting opinion in Dairylea.2 APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce any agreement which gives our stewards top seniority for all purposes other than job retention, includ- ing layoff and recall, no matter what their length of employment. WE WILL NOT cause or attempt to cause any employer to discriminate against any employee, by assigning any term or condition of employ- ment, other than those pertaining tojob retention, including layoff and recall, to a union steward on the basis of seniority when such steward, does not in fact have top seniority in terms of length of employment. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights protected by Section 7 of the Act. CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION No. 633 OF NEW HAMPSHIRE, A/W INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This case was heard at Manchester, New Hampshire, on September 13, 1976, based on charges filed on December 15, 1975, and amended on January 21, 1976, alleging 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violations of Section 8(bXIXA) and (2) by the Respondent Union.' Both the General Counsel and the Respondent filed briefs. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE PARTIES IN INTEREST As admitted in the Respondent's answer, at all times material herein, each of the parties listed in Appendix A, attached hereto, have maintained places of business in the State of New Hampshire where each has been engaged in the hauling of general freight in interstate commerce. Each of the Parties in Interest, in the course and conduct of their respective business operations, derives gross annual reve- nue in excess of $50,000 from its interstate freight hauling operations. I therefore find that the Parties in Interest, and each of them, are and have been, at all times material herein, employers engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Chauffeurs, Teamsters and Helpers Local Union No. 633 of New Hampshire, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter referred to as the Union or the Respondent, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times material herein, the Union has been the collective-bargaining representative of the drivers, dock- workers, and helpers employed by the Parties in Interest, pursuant to individual identical collective-bargaining agreements known as the Northern New England General Freight Agreement Supplement to the National Master Freight Agreement, hereinafter called the supplement, effective for the period July 1, 1973, to March 31, 1976.2 Article 41 of the supplement, headed "Stewards-Appoint- ments and Duties" provides in relevant part: The Employer recognizes the right of the Union to designate job stewards and alternates for each terminal from the Employer's seniority list, but no more than one in each classification. The authority of job stewards and alternates so designated by the Union shall be limited to, and shall not exceed the following duties and activities: [a detailed listing of a steward's duties and responsibilities ]. Stewards shall be granted super-seniority, for all purposes including layoff. Article 43, section l(d)(l) and (5), and article 52, section 2, in sum, provide that seniority shall govern the employees' I The employers listed in Appendix A attached hereto are the Parties in Interest in this proceeding and will hereafter be referred to as such. 2 On April 1, 1976, a new supplement went into effect with a termination date of March 31, 1979. This supplement, in evidence, consists of a list of changes in the previous agreement, none of which are material to the instant selection of starting times, vacations, and the distribution of Saturday premium pay work. On January 27, 1976, Socrates Makris, secretary-treasur- er of the Union, wrote a form letter to all the signers of the supplement stating that since the National Labor Relations Board had recently ruled that employers and unions cannot grant superseniority to shop stewards except for purposes of layoff and recall, any provision of the collective-bargaining agreement in conflict with this ruling "is rendered void and unenforceable." 3 However, accord- ing to credible testimony by Makris, when this letter was read at the January meeting of the Union at which many stewards were present, a motion was passed instructing the Union to rescind the January 27 letter. As a result another letter dated February 13, 1976, was sent to the Parties in Interest announcing that, since the Board's decision had been appealed and since the Union was presently involved in a similar case which it intended to litigate, "we must continue to give full force and effect to our super-seniority clause as presently written until a final, definitive determi- nation is made. Therefore, it is requested that our letter of January 27, 1976 be clarified in the respects set forth in this letter." In Dairylea, supra at 658, the Board held that "in view of the inherent tendency of super seniority clauses to discriminate against employees for union-related reasons, and thereby to restrain and coerce employees with respect to the exercise of the rights protected by Section 7 of the Act, 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 presump- tion (i.e., establishing justification) rests on the shoulders of the party asserting their legality." The General Counsel contends that the instant proceeding falls squarely within the ambit of the Dairylea decision. The Respondent disagrees, noting that here, unlike the Dairylea proceeding, there is testimonial evidence which it argues distinguishes this case from Dairylea, and in addition provides the justification necessary to rebut the presumption established by the Board's holding. Thus, Makris testified that, to his recollection, in all except two instances stewards had been elected rather than appointed. I find, however, that this is not a significant factual distinction since the flaw which gave rise to the Board's holding in Dairylea still remains. As the Board stated: The clause here in question gives union stewards, only because they are union stewards, preference in securing a rather wide range of on-the-job benefits. This fact is not in dispute. Further, there is nothing a unit employee can do, apart from being selected [or as here elected] a steward, to acquire such preference for himself. His actual seniority on the job avails him nothing against the stewards' super seniority. Conse- quently . . . viewed realistically the only way a unit employee can gain such preference to on-the-job benefits is to be a good, enthusiastic unionist .... proceeding. Art. 41, "Stewards-Appointments and Duties," and Art. 43, Sec. I(dXI) and (5), are specifically listed in the new supplement as having "no change." 3 The letter referred to the Board's decision in Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (C.A. 2, 1976). 82 CHAUFFEURS, LOCAL 633, TEAMSTERS Furthermore I note that article 41 of the supplement is headed "Stewards-Appointments and Duties" and speaks only of the Union's right to "designate" a steward. Furthermore, as the General Counsel points out and as Makris conceded, the Union's constitution and bylaws contain certain eligibility requirements which must be met to become a steward, including being a member in good standing of the Local and having attended 50 percent or more of the membership meetings for a period of the past 2 years. Makris gave testimony to the effect that the superseniori- ty provisions in question have not been enforced. I do not credit this testimony since it is contrary to his February 13, 1976, letter, and to the testimony of John C. Lyons, vice president of industrial relations of Quinn Freight Lines, and Holmes Tracy, the Manchester, New Hampshire, terminal manager for Spector Motor Freight, that during 1975 and 1976, respectively, they have accorded stewards superseniority for purposes other than merely layoff and recall. In the final analysis, the only real justification for the existence of the superseniority provision is that it tends to encourage individuals to serve as stewards as supported by Makris' conclusionary opinion testimony that it would be difficult for the Union to get individuals to serve as stewards without the benefit of the superseniority provi- sion. This same argument was advanced by the dissent in the Dairylea case and rejected by the majority. Therefore, under all the circumstances present here, I find and conclude that the Respondent has not shown justification for the superseniority provision sufficient to rebut the presumption of its illegality. Therefore, I find that the Respondent has violated Section 8(b)(1)(A) and (2) of the Act. CONCLUSIONS OF LAW i. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Parties in Interest named in Appendix A attached hereto are each employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By maintaining and enforcing the stewards' super- seniority clauses here in question, the Respondent Union has violated Section 8(bXI)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since I have found that the steward superseniority clauses here in dispute are unlawful, I shall therefore order that Respondent Union cease and desist 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. from maintaining, enforcing, or otherwise giving effect to those clauses in its collective-bargaining agreements with the Parties in Interest, which accord union stewards superseniority with respect to terms and conditions of employment other than layoff and recall. I shall also order that the Respondent cease and desist from causing or attempting to cause the Parties in Interest to discriminate against employees in violation of Section 8(aX3) of the Act. Finally, I shall order the Respondent to notify, in writing, all employer signatories to the Northern New England General Freight Agreement Supplement to the National Master Freight Agreement that the Union will not maintain or enforce any provision of said agreement that accords union stewards superseniority with respect to terms and conditions of employment other than layoff and recall. Respondent will also be ordered to post an appropriate notice notifying its members of this action. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Chauffeurs, Teamsters and Helpers Local Union No. 633 of New Hampshire, a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and represen- tatives, shall: I. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to those clauses in its collective-bargaining agreements with the Parties in Interest, named in Appendix A, which accord union stewards superseniority with respect to terms and conditions of employment other than layoff and recall. (b) Causing or attempting to cause the Parties in Interest, named in Appendix A, to discriminate against employees in violation of Section 8(aX3) of the Act. (c) In any like or related manner restraining or coercing the employees of the Parties in Interest in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Notify, in writing, all employer signatories to the Northern New England General Freight Agreement Supplement to the National Master Freight Agreement that Respondent Union will not maintain, enforce, or otherwise give effect to those clauses of that agreement which accord union stewards superseniority with respect to terms and conditions of employment other than layoff and recall. (b) Post at its office and meeting halls used by or frequented by members and employees it represents at the Parties in Interest named in Appendix A copies of the attached notice marked "Appendix B." 5 Copies of said notices, on forms provided by the Regional Director for Region 1, shall be posted by Respondent immediately 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an order of the National Labor Relations Board." 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to the above-described members and employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. The Respondent shall furnish the Regional Director for Region I with a sufficient number of signed copies of such notice for posting by each of the Parties in Interest, if they so wish, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A Associated Transportation, Inc. 380 Madison Avenue New York, NY 10017 Attn: Mr. John Barston Auclair Transportation, Inc. 333 March Avenue Manchester, NH 03103 Attn: Mr. Maurice McCarthy Bartletts Express 71 Harrison Street Keene, NH 03431 Attn: Mr. Herman Lagerberg Blue Line Express, Inc. Lowell Road Nashua, NH 03060 Attn: Mr. Keith Vaskelonis Consolidated Freightways Post Office Box #4121 Portland, Oregon 97208 Attn: Mr. Patrick Fleming Dearborns Motor Express Exeter, NH 03833 Attn: Mr. William Walsh Graf Brothers Water Street Newburyport, MA 01950 Attn: Mr. Tyng Graf G. H. Harnum, Inc. 867 Woburn Street Wilmington, MA 01887 Attn: Mr. G. H. Harnum Gypsum Haulage, Inc. Post Office Box # 30248 Cleveland, Ohio 44130 Attn: Mr. William Gorbett Hemingway Transportation, Inc. 438 Dartmouth Street New Bedford, MA 02740 Attn: Mr. Donald Kelly Hermsdorf Fixture Manufacturing Company 108 Franklin Street Manchester, NH 03101 Attn: Mr. James Tyre Holmes Transportation, Inc. Post Office Box # 1023 Framingham, MA 01701 Attn: Mr. James Malkin Interstate Motor Freight System 134 Grandville Avenue W.W. Grand Rapids, MI 49502 Attn: Mr. D. Verberg Jones Motor Company, Inc. Bridge & Schuylkill Road Spring City, PA 19475 Attn: Mr. Charles Long Law Motor Freight, Inc. Airport Road Post Office Box #407 Nashua, NH 03060 Attn: Mr. George Law Lewis Express, Inc. 5 Pine Street Littleton, NH 03561 Attn: Ms. Mary Ball M & M Transportation Company 186 Alewife Parkway Cambridge, MA 02138 Attn: Mr. George Borgos McCarthy Transportation, Inc. 62 Everett Street Westwood, MA 02090 Attn: Mr. Paul Dowling McLean Trucking Company 617 Waughtown Street Winston-Salem, NC 27107 Attn: Mr. R. J. Ehrhardt Maislin Transport, Inc. 2250 Maislin Street LaSalle, Montreal Quebec, Canada H8NIX3 Attn: Mr. A. Maislin Nashua Motor Express 270 Amherst Street Nashua, NH 03060 Attn: Mr. George Juris Quinn Freight Lines 1093 North Montello Street Brockton, MA 02746 Attn: Mr. John Lyons 84 CHAUFFEURS, LOCAL 633, TEAMSTERS St. Johnsbury Trucking, Inc. 40 Erie Street Cambridge, MA 02139 Attn: Mr. William Dodge Spector Freight System 205 West Wacker Drive Chicago, IL 60606 Attn: Mr. Nicholas Catsinas Universal Coordinators, Inc. Post Office Box # 334 Elmwood Park, NJ 07407 Attn: Mr. Louis Kolsman, Jr. Willey's Express Post Office Box #488 Laconia, NH 03246 Attn: Mr. Floyd M. Willey Yellow Freight Systems Post Office Box #7270 10990 Roe Avenue Shawnee Mission, KS 66207 Attn: Mr. Thomas W. McCullough 85