United Electrical, Radio and Machine Workers

406 DEClSlONS OF NATIONAL LABOR RELATIONS BOARD United Electrical, Radio and Machine Workers of America, Lacal 623 and Anna Mae D'Amico and Limpco Mfg., Inc., Party to the Contract. Case 6 CB-3520 June 23, 1977 DECISION AND ORDER On April 21, 1976, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, Respondent United Electrical, Radio and Machine Workers of America, Local 623 (hereinafter Local 623) filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. The Board has considered the record1 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 issue presented in this proceeding is whether or not superseniority for purposes of layoff, which we found in Dairylea Cooperative Inc.2 could be validly extended to union stewards, can be appropriate$ provided to union officers who may not have steward-type functions. The facts are essentially undisputed. On July 3, 1975, Local 623 invoked the collective-bargaining agreement's superseniority pro- vision in order to insure the continued employment of Patricia Jenkins, the recording secretary, in the wake of an ecomonic layoff.3 As a result, Charging Party Anna Mae D'Amico, who had greater seniority than Jenkins in terms of her date of hire and continuous service, was laid off. At the time, Local 623, an amalgamated local with 230 to 250 members which represented employees of 12 different busi- nesses including Limpco's, was headed by four officers: president, vice president, financial secretary- treasurer, and recording secretary Jenkins. Local 623 assigned a chief steward and three shop stewards to the approximately 38 employees at Limpco, but Jenkins was the only union officer employed there.4 Upon charges filed by D'Amico, a complaint issued alleging that Local 623 had violated Section 8(b)(l)(A) and 8(b)(2) of the Act by invoking the superseniority provision to protect the recording secretary. At the hearing, the General Counsel did not coniend that the supirseniority provision wasper 1 Res ondent's request for oral argument is hereby denied as the record and brieE adequate1 present the issues and positions of the parties. 2 219 NLRB 6 4 (1975). enfd. sub nom Milk Drivers and Doiry Emplo ees, Local 338, I n r e r ~ r i o ~ l Brotherhood of Teamsrers, Chau eurs, WarehVowemen and Hebers of America v. N.LR.B.. 531 F.2d ,162 ([A. 2, 14761 .. .- h e superseniority provision contained in art. XI, sec. 4, of the 1972-75 bareaining a rerment hptw-e- L i m y Mfg., Inc., and Local 623, !n effect at the time ofthe events gjving rise to the complaint, it is similar to art. XI, sec 5, of the current bargaining agreement which reads as follows: 230 NLRB No. 59 se unlawful, but rather, that under the principles established in Dairylea, supra, it is unlawful to extend superseniority, even in a layoff situation, to individu- als who are not directly involved in the initiation and processing of grievances. The General Counsel argued that, because Local 623 applied the clause to an officer who had no responsibility for performing steward-type duties, the invocation of the clause in this instance went beyond the limits established in Dairylea and thus the application of the clause to Jenkins was presumptively invalid. The General Counsel also argued that Local 623 failed to sustain its affirmative burden of proving that such use of the clause was justified. Local 623 asserted that the superseniority provision was invoked in a layoff situation, which meets the Dairylea test of validity. It contended further that the fact that the provision was applied to a union officer does not alter the legality of the manner in which the superseniority clause was applied. The Administrative Law Judge found that the superseniority clause had been applied unlawfully to the recording secretary. The Administrative Law Judge reasoned that the Board in Dairylea held that only steward superseniority limited to layoff and recall situations was valid, but that superseniority provisions which went beyond layoff and recall were presumptively invalid. In view of the fact that superseniority here was extended to officers, as well as to stewards, it went beyond the limits announced in Dairylea and therefore it was presumptively invalid; thus, in order to rebut the presumption of invalidity, Local 623 had to justify the application of the clause to recording secretary Jenkins. The Administrative Law Judge found that any involve- ment Jenkins may have had with the grievance process was on a purely voluntary basis and that such activities were not the function of the recording secretary. Accordingly, he concluded that Local 623 had failed to prove that the recording secretary performed any steward-type functions which would justify her superseniority. Thus, the Administrative Law Judge found that Local 623 violated Section 8(b)(l)(A) and 8(b)(2) of the Act as the rule in Daitylea did not apply to the provision of superse- niority to the recording secretary and Local 623 had failed to prove an exception. The highest seniority preference shall be given to Oflicers and Union Stewards in regard to layoffs provided they are capable of performing the available work in their unit. 4 On January 22, 1976, Jenkins was elected to a steward position. We ?gee with the Administrative Isw Judge's findings that this E+.--~v? event does not affect the disposition of the issues in the present proceeding. I RADIO AND MACHINE WORKERS, LOCAL 623 I In the present case, the Administrative Law Judge uled in essence that whenever a superseniority clause, though properly limited to layoff or recall kituations, either refers to or applies to a union 'officer, other than a steward, such application of the I isuperseniority clause is presumptively invalid and the burden shifts to the respondent to justify its use. In other words, a superseniority clause which encom- passes or applies to union oficers as well as stewards, though limited to layoff and recall, is not presump- tively valid on its face though a clause with similar objectives but limited only to stewards would have presumptive validity. We disagree with the Administrative Law Judge's narrow reading of our decision in Dairylea and specifically reject his view that because the superse- niority provision was applied to a union officer rather than to a steward, albeit in a layoff situation, the provision was presumptively invalid.5 In Dairylea, the Board considered the validity of a contract provision which accorded stewards superse- niority not only for layoff and recall purposes but also for all contractual benefits where seniority was a consideration. The Board found that the union violated Section 8(b)(l)(A) and 8(b)(2) of the Act by maintaining, enforcing, and applying the clause because of its discriminatory effect in linking such job benefits to union a~tivities.~ At the same time, the Board majority was of &he opinion that steward superseniority limited to layoff and recall had the salutory effect of furthering the "effective adminis- (ration of bargaining agreements on the plant level by encouraging the continued presence of [a] steward o n the job." Thus, the Board stated that it considered steward superseniority limited to layoff and recall to be valid as it served "legitimate statutory purposes" and benefited all unit employees. However, superse- niority which was extended to situations beyond layoff and recall was found to be presumptively invalid and consequently the party relying on such a provision had the burden of justifying the validity of I he seniority provision. In reaching its decision, the lhirylea majority cited Aeronautical Industrial Dis- ~ricl. Lodge 727 v. Campbell.7 wherein the Supreme '' Charman Fanning, who dissented from the Dairylea holding that .~rlwr.wniority for purposes other than layoff or recall is presumptively ~l~\.~lid. agrees w~th his colleagues that provisions providing superseniority I ~ M unton oficers are governed by the same considerations as are provisions l~~tlwllng such seniority for stewards. Although he still adheres to the views c~lvc\\ed in his Dairvleo dissent, he agrees that the considerations expressed ( 1 1 r111\ decision demonstrate that the superseniority provisions at issue I ~ I ~ I I I unnot be found to violate Sec. 2(a)(l) and (3) of the Act. ', Ihe employer, also named as respondent, was found in violation of Sec. Wt)( I ) : d (3)of the Act. ' 337 U.S. 521, 527 (1949). ' Wr helieve that our dissenting colleagues have too narrowly construed ,I.,. c,! I ,r,. . ,,, e Court's decisions in Cumpbell. Admittedly; i r l Gmybeil, the 1 ~ N I I I u.;n called upon to decide only the question as to whether or not the S V W I I ~~l'\uperscniority for purposes ofjob retention was properly extended Court upheld a provision in a collective-bargaining agreement according superseniority to shop stewards or union chairmen whose validity was challenged under the seniority provisions of the Selective Training and Service Act of 1940. The Supreme Court reasoned that "[olne of the safeguards insisted upon by unions for the effective functioning of collective bargaining is continuity in office for its shop stewards or union chairmen. . . . Because they are-union chairmen they are not regarded as merely individual members of the union; they are in a special position in relation to collective bargaining for the benefit of the whole union."s Since our decision in Dairylea focused on steward superseniority-because that was the type of seniori- ty provision in dispute-the issue of union officer superseniority was not specifically addressed. Con- trary to the Administrative Law Judge, we do not consider that Daiylea established the principle that superseniority is presumptively valid only when the individual involved is engaged in the function of processing and/or adjusting grievances at the work- place. In Dairylea, it was determined that a legitimate statutory purpose of superseniority provisions was the effective administration of the collective-bargain- ing agreement on the plant level. And this objective was served by superseniority provisions limited to layoff and recall which insured the continued presence of the employees' bargaining representa- tives on the job. Thus, Dairylea was not intended to circumscribe which union representatives could be recipients of superseniority, but, rather, it articulated what the appropriate objectives of such provisions were, in light of the legitimate statutory purpose of facilitating the effective administration of the collec- tive-bargaining agreement on the plant level. In this regard, we do not consider that the administration of the collective-bargaining agree- ment is limited solely to grievance processing or other "steward-type" duties performed at the work- place.\What is at stake is the effective and efficient representation of employees by their collective-bar- gaining representatives. Certainly, the representa- tional activities carried out by union officials to union chairmen who process and adjust grievances at the workplace. However we find nothing in the Court's opinion in Campbell which would suggest that superseniority can be extended only to those individuals who are involved in the day-to-day handling and adjustment of grievances. Rather, we view the Court to have approved superseniority for grievance adjusters because that was "one way" of safeguarding or ensuring effective collective bargaining. Thus, the Court determined that grievance adjusters by their involvement in the enforcement of the collective-bargaining agreement fuahered the whole process of collective bargaining. According- ly, it would seem to us that the Court's emphasis was on the total collective- bargaining process and not just one narrow aspect of it and. consequently, we interpret Campbell as an endorsement-albeit tacit-of the concept that superseniority for purposes of joi terc~ndort may properly ut ehlelded to those individuals whose official responsibilities bear a direct relationship to the effective and efficient representation of unit employees. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 repre- sented through the collective-bargaining process. In fact, perhaps the most important union officer, the president, is usually not involved in grievance proceedings.9 We shall not therefore presume, as did the Administrative Law Judge, that union officers, even though they may not perform steward-type duties, are not as involved as stewards in the administration of the collective-bargaining agree- ment. On the contrary, we believe that, once it has been initially demonstrated that the official responsi- bilities of the union officer in question bear a direct relationship to the effective and efficient representa- tion of unit employees, then this officerlo is entitled to the benefit of the same presumption afforded to union stewards. Thus, we reject the view that Local 623 had the burden of justifying the application of the superse- niority provision to the recording secretary in a layoff situation, merely because the provision was applied to an officer rather than a steward. It was sufficient to show, as Local 623 did, that Jenkins qualified for the benefit by reason of her role in the overall administration of the collective-bargaining agreement. The General Counsel continues to have the burden of proving afirmatively that the applica- tion of a superseniority provision to a functional union officer in a layoff situation is invalid. We find that the General Counsel has not sustained this burden in the present case. The record discloses that Jenkins, as recording secretary, was a member of the executive board and received $15 a month for her duties.11 She was the highest ranking union officer employed at Limpco. Jenkins was primarily responsible for maintaining records of membership and executive board meet- ings, presenting Limpco shop reports at those meetings when the chief steward was absent and 9 The results of a survey of grievance provisions in 400 representative collective-bargaining agreements, conducted by the Bureau of National Affairs, indicate that the union or local president is not a major participant in grievance proceedings. Only 5 percent of the surveyed contracts provide that the union president would handle mid-level stages of the grievance procedure; however, 49 percent of the contracts gave that responsibility to in-company grievance committees; 34 percent of the contracts gave such responsibilities to the shop stewards; and 3 percent provided for mid-level participation by the international representative. Forty percent of the contracts which contained final-step grievance provisions placed responsi- bility on international representatives; 28 percent of such contracts gave final-step grievance responsibility to in-company grievance committees; whereas in only 7 percent of such contracts did union presidents become involved in final-step grievances. See Basic Parrerns in union Conrrarrs in C&~LIIVC Burgaining Negoriarion and Conrracts, vol. Z (The Bureau of National Affairs. Inc., 1976). lo Should the Board deprive union officers of the protection of Local 623. Jenkins, posted nbtices of material needed by handling all correspondence for as well as the chief steward, membership meetings, procured stewards, and aided stewards in obtaining reimburse- ment for their lost time on the job due to their union duties. Although the recording secretary had no official duties for handling grievances or participat- ing on the bargaining committee, Local 623's president testified that Jenkins participated informal- ly in processing grievances and assisting stewards in writing grievances, advised stewards and foremen on contract interpretation, and handled problems in general. Jenkins testified that she was asked by the chief steward to attend shop meetings to help formulate bargaining ideas, and that during a recent strike the executive board placed her in charge of scheduling pickets and handling money for pickets. The record indicates that if the recording secretary were laid off and subsequently worked for an employer who was not a party to the collective- bargaining agreement the recording secretary would be required to resign from her office. It is evident that the official responsibilities of the recording secretary bear a direct relationship to the effective and efficient representation of unit employ- ees both at the plant level and for the entire amalgamated local. Equally clear is the fact that the recording secretary participates informally in the processing of grievances. Our dissenting colleagues, who would distinguish informal and formal griev- ance duties, are merely splitting hairs, for we can see no practical difference between the two in the representation of unit employees. In this light, we find that Local 623's actions conformed to the lawful objective of superseniority provisions-the effectua- tion of Section 7 rights of employees by assuring them the continued presence of their representatives who are charged with effectively and efficiently representing unit employees.'* Accordingly, we shall dismiss the complaint in its entirety. superseniority, it is reasonable to foresee that where, as in the present case, union officials are elected, seniority may become an overriding issue. For, the employees may well want to select as their representative someone who will continue on the job when the job security of bargaining unit employczs has been threatened by economic layoffs. Thus, the Board's interjection could result in restricting employee freedom of choice in elections since seniority of the respective candidates, alone, may play an unduly decisive pan in the result. " The president was paid $10, whereas the financial secretary-treasurer was paid $15 a month. 12 Member Murphy agrees with the holding herein. As set forth in her concurring opinion in Union Carbide Corporation Chemical and Plartics Operations Division, 228 NLRB 1152 (1977). she wouM find presumptively lawful job retention superseniority clause, ;cc!.+ng layoff, :c.-:.!L 1x2 assignment, or retention of the same 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. RADIO AND MACHINE WORKERS, LOCAL 623 409 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBERS JENKINS and PENELLO, dissenting: By their decision, our colleagues have linked employee seniority rights to their union activities, for they have established that union officers have guaranteed job protection as a fringe benefit for their union activities. We can think of no greater or more direct coercion and interference with the Section 7 rights of employees by a labor organization. Accord- ingly, and in agreement with the Administrative Law Judge, we would find that Local 623 violated Section 8(b)(l)(A) and 8(b)(2) of the Act by invohng the superseniority provision to protect the recording secretary. To understand the issue presented, we must begin with the Act's guarantees that employees have the right to refrain from "any and all" activities on behalf of a bargaining representative and to be free from employer acts, even at the behest of their bargaining representative, to encourage membership in a labor organization.13 Employees essentially are to be free from discrimination in employment on the basis of their union activities, or lack of them. Once job protection, through "seniority provisions, is provided for all employees through the bargaining process, all employees must enjoy that benefit regardless of the extent of their union activities. As we recognized in Dairylea, supra, 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. Once a union has become the employees' lawful bargaining representative and commenced negotia- tions with the employer, it becomes a simple matter for the union to acquire job protection rights for its officials in return for concessions granted to the employer. All of this is necessarily at the expense of the individual employee. In order to justify such discrimination under the Act, there must be a benefit to all bargaining unit employees rather than simply to the immediate beneficiary. In Dairylea, we recognized the validity of steward superseniority since "it furthers the effective administration of bargaining agreements on the plant level by encouraging the continued presence of the steward on the job." The Board reasoned in Dairylea that their continued presence on the job enabled stewards. and all other union representatives in- volved in grievance adjustment at the point of employment, to better carry out their representation- al responsibilities and, as a result, aN unit employees benefited. The representational activities which were at stake in Dairylea and which the Supreme Court addressed in Campbell, supra, were not, as our colleagues argue, the whole collective-bargaining process with the concomitant need for a functioning union organiza- tion. We see no need now to depart from the view in Dairylea that "it nevertheless remains the union's task to build and maintain its own organization." What our colleagues have accomplished by their decision is to insure that job benefits and rights are now tied to political activism in the union. Yet, Section 7 of the Act is intended to insulate the employee from precisely this result. This Board should not be in the business of assuring that a union has an efficient and effective organization to conduct collective bargaining where this results in the linkage of job rights and benefits to union activities. We can foresee a time when every union member or activist could be given some ofice their union considers crucial to the "whole process of collective bargain- ing" and hence enjoy superseniority. Eventually, superseniority would benefit only those employees who curry favor with the union leadership. What clearer violation of the Act can there be? The representational responsibilities which were sanctioned by the Supreme Court in Campbell as the justification for superseniority are the "proper adjustment of grievances at their source" or, as we stated in Dairylea, "the effective administration of bargaining agreements on the plant level." It is the processing of grievances and the enforcement of the collective-bargaining agreement on the job which facilitates the Section 7 rights of employees. Since these steward-type functions inure to the benefit of all employees, the discriminatory effect of superse- niority is balanced by the facilitation of employee Section 7 rights. To broaden the proper objective of superseniority; i.e., to protect the whole process of collective bargaining-as our colleagues have done- discriminatorily tips the balance against individual employees rights. In Dairylea, we circumscribed the reach of superseniority to layoff and recall, though we also realized that there may be other purposes of superseniority which could carry out the lawful objective of such provisions. This underscores the view that the only proper objective of superseniority is to retain those union officials responsible for the processing of grievances on the job, and whose presence on the job is therefore required for the proper performance of this functions.14, l3 Secs. 7,8(b)(l)(A), 8(b)(2), and 8(aX3). 14 Campbell, svra at 527. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that only superseniority provisions which accord union officials whose presence on the job is necessary for the on-the-job adjustment or settlement of grievances are presump- tively valid. Thus, the application of a superseniority provision to the recording secretary whose represen- tation functions are not related to her presence on the job is presumptively invalid. And there is nothing in the record to show that Local 623 has met its burden of justifying superseniority in this case. Jenkins had no official responsibility for handling grievances. Though there is testimony from both Local 623's president and Jenkins to the effect that the recording secretary "assisted stewards," such "assistance" was admittedly on an informal basis and was limited to helping employees put their grievances into writing and handling unspecified "problems." There is no showing that these "infor- mal" activities required Jenkins' presence on the job. Furthermore, it is undisputed that Jenkins has never met with Limpco's management over a written grievance nor has she directly participated in the processing of grievances. Nor is the fact that Jenkins was the only officer employed at Limpco relevant, for there are only four officers in the amalgamated local, so that clearly not every unit will have a union officer present. It is apparent that the principal need for superseniority in this case was to protect Jenkins' union job which would have been lost if she worked for another employer during layoff. As the recording secretary. is not engaged in the type of function which Dairylea sought to protect, it was a violation of the Act for Local 623 to invoke the superseniority provision on her behalf. DECISION EUGENE GEORGE GOSLEE, Administrative Law Judge: This case came on to be heard before me on March 9, 1976, at Pittsburgh, Pennsylvania, upon a complaint' issued by the General Counsel of the National Labor Relations Board and an answer filed by United Electrical, Radio and Machine Workers of America, Local 623, hereinafter called the Respondent Union. The issues raised by the pleadings relate to whether or not the Respondent Union violated Section 8(b)(I)(A) and (2) of the National Labor Relations Act, as amended, by acts and conduct hereinafter speci- fied. Briefs have been received from the General Counsel and the Respondent Union, and the briefs have been duly considered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witnesses, I hereby make the following: I. PRELIMINARY MAlTERS The wmplaint alleges, the answer admits, and I find that L i p Mfg., Inc., hereinafter called Limpco, is (1) engaged in the manufacture of clutches and brakes at its plant at Greensburg, Pennsylvania; (2) in the 12-month period preceding the issuance of the complaint, Limpw manufactured and sold in interstate commerce products valued in excess of $50,000; and (3) L i m p is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, the answer admits, and I find that the Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. The complaint further alleges, the answer admits, and I find that the Respondent Union and L i m p have been parties to a series of collective-bargaining agreements, which have contained a clause relating to superseniority. Section 4 of article XI of the 1972-75 bargaining agree- ment, which was in effect at the time of Anna Mae D'Amiw's layoff, and which was essentially similar to section 5 of article XI of the current agreement, recited as follows: The highest seniority preference shall be given to Officers and Union Stewards in regard to layoffs provided they are capable of performing the available work in their work unit. It is not the General Counsel's contention, for reasons which he did not explain on the record, that the provision contained in section 4 of article XI of the contract in issue is presumptively violative of Section 8(b)(I)(A) and (2) of the Act. The General Counsel only alleges that section 4 of article XI was unlawfully applied to accord superseniority to the Respondent Union's recording secretary, Patricia Jenkins, thereby depriving the Charging Party Anna Mae D'Arnico of employment retention by L i m p in accor- dance with the otherwise la- seniority provisions of the wllective-bargaining agreement. The evidence in this proceeding was adduced partly through a written stipulation of facts, and partly through testimony of witnesses called by the General Counsel and the Respondent Union. To the extent there are variations in the testimony of the witnesses concerning events, circumstances, or interpretations thereof, and these are minimal, I credit the testimony of the General Counsel's witnesses. It is undisputed that the superseniority provision de- scribed above, or its essential equivalent in the current bargaining agreement, has been maintained in full force and effect at all times material to this proceeding. It is ' The complaint in this matter was issued on January 21, 1976, upon a charge filed on November 12, 1975, and duly served on the Respondent Union on November 13, 1975. RADIO AND MACHINE WORKERS, LOCAL 623 41 1 equally undisputed that the superseniority provision was invoked by the Union on July 3, 1975,2 to insure the continued employment of Recording Secretary Patricia Jenkins, who would have been laid off by Limpco in place of Anna Mae D'Amico, who enjoyed greater seniority in terms of the date of her hire and continuous service with Limpco. As to further undisputed matters, the record reveals that the Respondent Union has collective-bargain- ing obligations for units of employees at 12 places of business, including Limpco, and it has four officers; a president, vice president, a financial secretary-treasurer, and Recording Secretary Patricia Jenkins. It is equally undisputed that at times material to this proceeding Limpco had an employee complement of 38 or less employees assigned to its machine shop, foundry, and clutch manufacturing operations. In the same time frame the Respondent Union had a chief steward and three shop stewards assigned to Limpco, one for the machine shop, one for the foundry, and two assigned to the clutch manufacturing department where Jenkins and D'Amiw were employed. The General Counsel contends, and I find, that the single issue presented in this case falls within the broad parame- ters of the Board's rule in Dairylea Cooperative, Inc.3 In Dairylea the Board held that steward superseniority is proper if limited to layoff and recall because it furthers the effective administration of bargaining agreements at the plant level by encouraging the continued presence of a steward on the job, to the benefit of all employees in the bargaining unit.4 The Board recognized in Dairylea that superseniority, even if limited to layoff and recall for the benefit of stewards, tends to discriminate, but "such discrimination as it may create% simply an incidental side effect of a more general benefit accorded to all employees." The Board also held in Dairylea, however, that supersenior- ity provisions which go beyond layoff and recall are presumptively invalid as tending to discriminate against employees for union-related reasons, and thereby restrain and coerce employees with respect to the exercise of their Section 7 rights.5 Where superseniority clauses are not limited on their face to layoff and recall, the burden of rebutting the presumptive illegality rests with the party asserting legality.6 There is no contention here that section 4 of article XI of the bargaining agreement between the Respondent Union and Limpco is presumptively unlawful, but rather the contention is that it was unlawfully applied by the Respondent Union in the case of its Recording Secretary Patricia Jenkins. Nevertheless, the Board found violations of the Act in Dairylea based on the application of the superseniority clause, as well as it found violations based on the presumptive illegality of a superseniority clause which accord stewards benefits affecting the terms and conditions of employment extending beyond layoff and recall. Moreover, the essential impress of the Board's decision in Dairylea is that superseniority for stewards,7 limjted to layoff and recall, is a valid contractual provision All dates hereinafter are in 1975, unless specified to the contrary. 219 NLRB 656 (1975), enfd. sub nom. Milk Drivers & Dairy Employees, Lorn1338 v. X.L.X.B., 531 F.2d 1162(C.k. 2, 1976). Citing Bethlehem Steel Co. (Shipbuilding Division), 136 NLRB 1500, 1503 (1962). and relying on the rationale of the United States Supreme because it encourages the continuity of the steward's services as a means to effectuate effective administration of collective-bargaining agreements at the plant level. Where, however, superseniority extends beyond preference for stewards for purposes of layoff and recall, the legality of the provision, and its application, depends on a showing of proper justification, and that burden rests here with the Respondent Union. I find, accordingly, that the supersen- iority clause, as applied here, is not limited in its application to job preference for stewards in terms of layoff and recall, but also extends to the Respondent Union's officers. As such the facts fall within the ambit of the Board's rule in Dairylea, and the issue is whether the Respondent Union has proved justification. The duties of the Respondent Union's recording secre- tary are described as follows in section E of article V of the constitution and bylaws of Local 623: The Recording Secretary shall keep all records of the meetings of the Local and the Local Executive Board. Conduct all official correspondence of the Local Union and Executive Board and perform such other duties as directed by the Executive Board necessary for the proper and effective administration of the affairs of the Union. He shall be paid a salary of $15.00 per month. There is nothing in the record before me to warrant a conclusion that Patricia Jenkins' duties as recording secretary extended beyond those described in the bylaws, either by reason of the contents of section E of article V, or as she may otherwise have been directed by the Union's executive board. The record is clear that it was not a part of Jenkins' oflicial duties to participate at any level in the processing of grievances arising under the terms of the collective-bargaining agreement between the Respondent Union and Limpco. While the Respondent Union con- tends that Jenkins was active in processing grievances, the record is clear that this was an official duty of the chief and shop stewards. Jenkins did not attend grievance meetings, and her limited role in grievance processing was on a volunteer basis only when consulted by management or an employee. Neither did Jenkins have any official capacity, nor did she otherwise participate in contract negotiations between the Respondent Union and Limpco, a function performed by the Union's paid agent, the chief steward and one or more shop stewards. Jenkins did attend periodic shop union meetings for Limpco employees, but she performed no official functions, and her participation was no different in kind or degree from the participation of other rank-and-file members. Jenkins did ~artici~ate 1 r actively in a strike at Limpw which occurred in January 1976, but contrary to the Respondent Union's contention I fail to perceive how this concerted activity outside the workplace, whether a part of her oficial duties or otherwise, is the type of activity under Dairylea which would justify her exercise of superseniority. &urt in Aero~utical Indu~trial District Lodge 727 v. CampbelL el al., 337 US. 521 (1949). " ~ ~ r r ' o G r ) p ~ , ~ t i i ~ , xp* at 358. Dairylea Cooperative, supra. Emphasis supplied. 412 DEClSlONS OF NATlONAL LABOR RELATIONS BOARD As additional reasons to justify the exercise of superse- niority for Patricia Jenkins, the Respondent Union has interjected a plethora of factual and legal arguments. Among those arguments the Respondent contends that Jenkins performed important duties in liaison matters between Local 623 and the UE International. It is also argued that superseniority is required by the constitution and bylaws of the Local and the constitution of the International, and that superseniority for officers was approved by the membership as a condition of the bargaining agreement with Lipco. It is further argued that there is an inharmonious relationship between the Respondent Union and Limpco, as exemplified by an unfair labor practice which was settled and another which is currently pending before an Administrative Law Judge, and that this justifies superseniority for the Union's recording secretary. On the whole of the record, whatever Patricia Jenkins' duties or their importance to the Local Union, I find that her duties related in no way to functions performed within the Limpco plant. As to the argument on the Respondent Union's relationship with Limpco, I again fail to perceive how this justifies superseniority for Jenkins, since there is no showing that her presence in the Limpco plant is officially essential as a means to rectify the lack of harmony. Furthermore, as to the requirements of constitu- tions and bylaws and the alleged approval of Limpco employees in the bargaining unit, the Board rejected a somewhat similar argument in Dairylea, supra, with the following comment: Because seniority affects conditions of employment there can be no real question that it must conform to the requirements of the Act-irrespective of its source in any agreement and even irrespective of the consent of those adversely affected. By way of legal argument the Respondent Union asserts that the Dairylea case must be distinguished because the issue of superseniority for union officers was not before the Board. I do not read the rationale of Daitylea so narrowly. In that case the Board held that superseniority for stewards for purposes of layoff and recall is proper, but superseniori- ty which extends beyond that limited area is presumptively illegal, both as a contractual provision and as construed and applied. An essential part of the rationale in Doirylea is that superseniority extending beyond layoff and recall of stewards can only be justified by evidence that it is necessary to achieve continuity in the stewardship as a means to achieve effective administration of the bargaining agreement at the plant level. I cannot, therefore, construe the rule of Dairylea as limited to the types of preference in terms and conditions of employment to which supersenior- ity may be extended, to the total exclusion of the types of union oflicials who may benefit by superseniority. The issue in this case is not presumptive illegality of the provision in the collective-bargaining agreement extending superseniority to the Union's officers, but rather that its exercise in the case of Patricia Jenkins was unlawful within A; to the Respondent Unlon's other citations of legal precedent, I find that decisions and reports of the War Labor Board are inapplicable and of no precedential value. As to the decision of the Supreme Court of the the meaning of Section 8@)(1XA) and (2) of the Act. The General Counsel has proved by a preponderance of the evidence that Patricia Jenkins' continued employment in the Limpco plant was not required insofar as the continua- tion of her employment was required for the performance of her duties as recording secretary, and certainly not required for effective administration of the bargaining agreement at the plant level. The Respondent Union has failed to overcome this prima facie case either factually or legally.8 111. THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative actions to remedy the unfair labor practices and to effectuate the policies of the Act. As I have found that the superseniority clause of the collective-bargaining agreement between the Respondent Union and L i p was applied to unlawfully deprive Anna Mae D'Amico of her job retention with L i m p in contravention of her proper seniority, I shall order that the Respondent Union cease and desist from enforcing the superseniority clause of the bargaining agreement to achieve job retention for purposes of layoff and recall for its Recording Secretary Patricia Jenkins. To further effectuate a remedy, I shall order that the Respondent Union, in writing with a copy to Anna Mae D'Amico, request L i p Mfg., Inc,, to reinstate Anna Mae D'Amico to her previous position of employment in accordance with the seniority provisions contained in article XI of the current collective-bargaining agreement. In addition, I shall order that the Respondent Union make Anna Mae D'Amico whole for any loss of earnings she may have suffered as a result of the application to the suphrseniority clause, said backpay to &&me until the Respondent Union requests Limpco to reinstate D'Amico, and the backpay sh'all be cdmputed in the manner established by the Board in F. W. Woolworth Company, !90 NLRB 289 (1950). and shall bear interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, I shall order the Respondent Union to cease and desist in any like or related manner from restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 1. L i m p Mfg., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union, United Electrical, Radio and Machine Workers of America, Local 623, is a labor organization within the meaning of Section 2(5) of the Act. 3. By applying the superseniority clause in its d e c - tive-bargaining agreement with Limpw Mfg., Inc., to deprive Anna Mae D'Amico of her job retention, thereby causing L i m p to discriminate against D'Amiw in United Slates in Aero~~tiCOl Indurtrial District Lodge 727 v. CompbeIt 337 US. 521, the facts of that case pertained to shop stewards or chairmen, not to union officers. RADIO AND MACHINE WORKERS, LOCAL 623 413 violation of Section 8(a)(3) of the Act, the Respondent Union has engaged in violations of Section 8(b)(l)(A) and (2) of the Act. 4. The foregoing unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing fmdings of fact, conclusions of law, and upon the entire record in this proceeding, and pursuant to the provisions of Section 1qc) of the Act, I hereby issue the following recommended: The Respondent Union, United Electrical, Radio and Machine Workers of America, Local 623, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Applying or enforcing the superseniority clause contained in article XI of its collective-bargaining agree- ment with Limpco Mfg., Inc., to achieve job retention for its recording secretary, thereby causing Limpco Mfg., Inc., to layoff Anna Mae D'Amico, or any other employee in contravention of her proper seniority. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action to remedy the unfair labor practices and to effectuate the policies of the Act: (a) Request Limpco Mfg., Inc., in writing with a copy to Anna Mae D'Amico, to reinstate Anna Mae D'Amico to In the event no exceptions are lileaas provided by Scc. 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. her former position of employment in accordance with the seniority provisions contained in article XI of the current collective-bargaining agreement. (b) Make Anna Mae D'Amico whole for any loss of earnings she may have suffered by reason of the Respon- dent Union's application of the superseniority provision depriving her of her job retention, said backpay to be computed in the manner prescribed in the Remedy section hereof, and to continue until the Respondent Union has requested Limpco to reinstate Anna Mae D'Amico in accordance with paragraph 2(a) of this Order. (c) Post at its office and meeting halls frequented by its members and employees it represents at Lirnpco Mfg., Inc., copies of the attached notices marked "Appendix."lo Copies of said notices, on forms provided by the Regional Director for Region 6, shall be posted by the Respondent Union after b;ing duly sign& by its representatives. immediately upon receipt thereof, and shall be maintained by the Respondent Union for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 6 additional signed copies of the attached notice marked "Appendix" for posting by Limpco Mfg., Inc., if Limpco is willing. (e) Notify the Regional Director for Region 6, in writing, within 20 days of the date of this Order, what steps the Respondent Union has taken to comply herewith. lo 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."