Harvey Hubble, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ensign Electric, Division of Harvey Hubble, Incor- porated and David R. Rice United Steelworkers of America, Local 5925, AFL- CIO-CLC and David R. Rice. Cases 9-CA- 15824, 9-CA-16722, 9-CB-4698, and 9-CB- 4892 25 January 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 9 September 1981 Administrative Law Judge Thomas R. Wilks issued the attached decision. The General Counsel filed exceptions and a supporting brief, and Respondent Employer and Respondent Union, respectively, filed cross-exceptions and sup- porting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The provision in dispute is contained within the collective-bargaining agreement between the Re- spondents and provides for superseniority for "The local union president, vice-president, recording sec- retary, financial secretary and treasurer and griev- ance committee . . . and union stewards in the event of a layoff." The parties stipulated that the positions of recording secretary, financial secretary, and treasurer are not directly involved in the proc- essing of grievances. However, the judge found that they performed vital and meaningful duties which were sufficiently related to the Union's ulti- mate goal of maintaining an effective relationship between the Respondents. Therefore, he deter- mined that Respondent Employer and Respondent Union had not unlawfully maintained and enforced a superseniority provision in their collective-bar- gaining agreement which granted preferential se- niority for purpose of layoff to Recording Secre- tary George McCoy and Treasurer Douglas Jar- rell. 2 Thus, the judge, relying on Dairylea Coopera- tive3 and Electrical Workers UE Local 623 (Limpco For a more detailed discussion, see the judge's decision under the heading "The Union." 2 We adopt the judge's finding that Financial Secretary Valkie Fetty had sufficient "natural or earned seniority" which exceeded that of em- ployees laid off between March 1980 and April 1981 and that there was no invoking of the superseniority clause as to him. Accordingly, we shall dismiss the complaint allegations regarding Fetty. 3 219 NLRB 656 (1975), enfd. sub nom. Teamsters Local 338, 531 F.2d 1162 (2d Cir. 1976). 268 NLRB No. 91 Mfg.),4 concluded that the complaint was without merit and should be dismissed. The General Counsel contends that the functions performed by the recording secretary, financial secretary, and treasurer relate solely to the internal administrative concerns and needs of the Union and only indirectly relate to the representative of unit employees. The exceptions also emphasize that these administrative functions are not performed on the job, during working hours, but instead are per- formed at their respective homes. In Gulton Electro- Voice, 5 the Board recently re- examined the issue of superseniority for union offi- cials and overruled Limpco, above, and its proge- ny.6 While superseniority benefits limited to layoff and recall still may be accorded to stewards, no su- perseniority benefits at all may be extended to union officials who, like the officers in this case who received superseniority, are not involved in grievance processing or other on-the-job contract administration or steward-like duties. 7 Thus, we find merit to the exceptions as applied to the re- cording secretary and treasurer. Accordingly, we find that, by maintaining and enforcing the super- seniority clause with respect to the recording sec- retary and treasurer during Respondent Employer's March 1980 to April 1981 layoff periods, Respond- ent Union has violated Section 8(b)(1)(A) and (2) of the Act, and Respondent Employer has violated Section 8(a)(l) and (3) of the Act.8 Furthermore, by according Recording Secretary McCoy and Treasurer Jarrell superseniority under the disputed clause with respect to layoffs on various dates be- tween March 1980 and April 1981, and thereby af- fecting employees who would not have been affect- 4230 NLRB 406 (1977), enfd. sub nom. Anna M D'Amico v. NLRB, 582 F.2d 820 (3d Cir. 1978.) s 266 NLRB 406 (1983). 6 Otis Elevator Co.. 231 NLRB 1128 (1977); American Can Co. (1), 235 NLRB 704 (1978); American Can Co. (11), 244 NLRB 736 (1979), enfd. 648 F.2d 746 (10th Cir. 1981). 7 We agree with the General Counsel's contention that the participa- tion of these officers on the Union's executive board where grievances may be discussed and/or processed is not in the nature of on-the-job steward-like or contract administration functions because these activities do not take place at the plant site or during working hours. McQuay- Norris, 258 NLRB 1397 (1981). See also Automobile Workers Local 501 (Bell Aerospace Textron), 267 NLRB 154 (1983). a In their exceptions, the Respondents contend that the allegations of the complaint are barred by the operation of the 6-month limitation pro- viso to Sec. 10(b) of the Act. Contrary to their assertions, the consolidat- ed complaint does not attack the execution of the contract nor does it relate to when the officers were elected and took office. Instead, only the Respondents' maintenance and enforcement of its superseniority clause within the applicable 10(b) period is in issue. It is well established that each act or incident of such enforcement constitutes a reaffirmance or re- newed entering into of the superseniority clause. Accordingly, we find the Respondents' exceptions lacking in merit. Automobile Workers Local 561 (Scovill), 266 NLRB 952 (1983); Actors' Equity Assn., 247 NLRB 1193 (1980), enfd. 644 F.2d 939 (2d Cir 1981); Connecticut Limousine Service, 235 NLRB 1350 (1978), enfd. in part sub nom. NLRB v. Teamsters Local 443, 600 F.2d 411 (2d Cir. 1979). 620 HARVEY HUBBLE, INC. ed if the collective-bargaining agreement had not accorded them superseniority, Respondent Em- ployer discriminated against employees in violation of Section 8(a)(1) and (3) of the Act, and Respond- ent Union thereby violated Section 8(b)(1)(A) and (2) of the Act. CONCLUSIONS OF LAW 1. Ensign Electric, Division of Harvey Hubble, Incorporated, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, Local 5925, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a seniority clause in their collective-bargaining agreement ac- cording Respondent Union's recording secretary and treasurer superseniority, Respondent Employer and Respondent Union have engaged in, and are engaging in, unfair labor practices within the mean- ing of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act, respectively, and by discriminating against unit employees, including employees David Rice, Raymond Soward, Paul Sansom, Charles Deal, Nelson Edmonds, Otho Mullins, Jimmy Nance, Clarence Copley, Joney Watts, and others, when Respondent Employer laid off employees who would not have been affected if the collec- tive-bargaining agreement had not accorded the re- cording secretary and treasurer superseniority, the Respondents engaged in further violations of the aforesaid sections of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as described above, the Respondents have not otherwise violated the Act. THE REMEDY Having found that the Respondents have en- gaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the superseniority clause here in dispute is unlawful and we shall therefore order that Respondent Union cease and desist from maintaining and enforcing such clause in its bar- gaining agreement with Respondent Employer with respect to Respondent Union's recording sec- retary and treasurer. We shall also order that Re- spondent Employer cease and desist from maintain- ing and enforcing such clause in its bargaining agreement with Respondent Union. We have also found that the unlawful superseniority clause was so applied as to lay off employees David Rice, Raymond Soward, Paul Sansom, Charles Deal, Nelson Edmonds, Otho Mullins, Jimmy Nance, Clarence Copley, Joney Watts, and others between March 1980 and April 1981 who would not have been laid off but for the illegal discrimination de- priving them of seniority. Consequently, we shall order that Respondent Employer offer to reinstate any employees, including those named above who would not have been laid off but for the unlawful assignment of superseniority to the recording secre- tary and treasurer, and that the Respondents jointly and severally make affected unit employees whole for any loss of earnings they may have sustained as a result of the discrimination against them. We shall also order that Respondent Employer ex- punge from its files any reference to the unlawful layoffs, and shall notify the affected employees that this has been done and that the unlawful layoffs will not be used as a basis for future personnel ac- tions against them. Backpay shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977). See, generally, Isis Plumbing Co., 138 NLRB 716 (1962). Also, in order to remedy in full the effects of Respondent Union's unlawful con- duct, we shall order Respondent Union to notify Respondent Employer and all affected employees, including those named supra, that it does not object to their reinstatement to the positions they held prior to the enforcement of the superseniority clause against them. Also, in order to remedy in full the effects of the Respondents unlawful con- duct, Respondent Employer's backpay obligation shall run from the effective date of the discrimina- tion against the affected unit employees to the time it makes such recall offers, while Respondent Union's obligation shall run from such effective date to 5 days after the date of its notification to Respondent Employer that it has no objection to the recall of unit employees affected by the unlaw- ful grant of superseniority to union officers. Final- ly, we shall order that Respondent Employer cease and desist in any like or related manner from inter- fering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, and that Respondent Union likewise cease and desist from restraining or coercing employees it represents exercising those same rights. ORDER The National Labor Relations Board orders that A. Respondent Employer, Ensign Electric, Divi- sion of Harvey Hubble, Inc., Huntington, West 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Maintaining and enforcing a collective-bar- gaining provision with Respondent Union, United Steelworkers of America, Local 5925, AFL-CIO- CLC, according the Union's recording secretary and treasurer superseniority. (b) Discriminating against any employees, includ- ing employees David Rice, Raymond Soward, Paul Sansom, Charles Deal, Nelson Edmonds, Otho Mullins, Jimmy Nance, Clarence Copley, Joney Watts, and others, when such employees have greater seniority in terms of length of employment than has one of the aforementioned union officials. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Jointly and severally with Respondent Union make any unit employees, including those named above, whole for any loss of earnings they may have suffered as a result of the discrimination against them, such earnings to be determined in the manner set forth in the section of this Decision en- titled "The Remedy," and offer to reinstate any employees who would not have been laid off but for the unlawful assignment of superseniority to the recording secretary and treasurer. (b) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and the route assignment due under the terms of this Order. (c) Expunge from its files any reference to the layoff of any employees affected by the supersen- iority as applied to the Union's recording secretary and treasurer from March 1980 to April 1981, and notify them in writing that this has been done and that evidence of the unlawful layoff will not be used as a basis for future personnel actions against them. (d) Post at its establishment in Huntington, West Virginia, copies of the attached notice marked "Appendix A."9 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent Employer's representative, shall be posted by Respondent Em- 9 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." ployer, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent Em- ployer to ensure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in paragraph A,2,(d), above, as soon as forwarded by said Regional Director, copies of the attached notice marked "Appendix B." (f) Mail signed copies of the attached notice marked "Appendix A" to the Regional Director for Region 9 for posting by Respondent Union. (g) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent Employer has taken to comply herewith. B. Respondent Union, United Steelworkers of America, Local 5925, AFL-CIO-CLC, Hunting- ton, West Virginia, its officers, agents, and repre- sentatives, shall i. Cease and desist from (a) Maintaining, enforcing, or otherwise giving effect to those clauses in its collective-bargaining agreement with Respondent Employer, Ensign Electric, Division of Harvey Hubble, Incorporated, according the Union's recording secretary and treasurer superseniority with respect to layoff and recall. (b) Causing or attempting to cause Respondent Employer to discriminate against employees in vio- lation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing employees of Respondent Employer in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Jointly and severally with Respondent Em- ployer make any unit employees, including those named above, whole for any loss of earnings they may have suffered by reason of the discrimination against them, such lost earnings to be determined in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Notify Respondent Employer and all affected employees in writing that it has no objection to re- instating the affected unit employees who but for the unlawful assignment of superseniority would not have been laid off or reassigned. (c) Post at its office and meeting halls used by or frequented by its members and employees it repre- sents at Respondent Employer's Huntington, West Virginia, facility copies of the attached notice 622 HARVEY HUBBLE, INC. marked "Appendix B."'° Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent Union's representative, shall be posted by Respond- ent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent Union to ensure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in paragraph B,2,(c), above, as soon as forwarded by said Regional Director, copies of the attached notice marked "Appendix A." (e) Mail signed copies of the attached notice marked "Appendix B" to the Regional Director for Region 9 for posting by Respondent Employer. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. °0 See fn. 9, above. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce any clause in our collective-bargaining agreement with United Steelworkers of America, Local 5925, AFL-CIO- CLC, according the Union's recording secretary and treasurer superseniority with respect to layoff. WE WILL NOT discriminate against any employ- ees by laying them off instead of the Union's re- cording secretary and treasurer when the Union's recording secretary and treasurer do not in fact have top seniority in terms of length of employ- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL offer immediate and full reinstatement to David Rice, Raymond Soward, Paul Sansom, Charles Deal, Nelson Edmonds, Otho Mullins, Jimmy Nance, Clarence Copley, Joney Watts, and other affected employees to their former jobs or, if those jobs no longer exists, to substantially equiva- lent positions, without prejudice to them and others who were discriminatorily laid off instead of the Union's recording secretary and treasurer. WE WILL expunge from our files any reference to the layoff of any employees affected by the su- perseniority as applied to the Union's recording secretary and treasurer for the March 1980 to April 1981 layoffs, and WE WILL notify them in writing that this has been done and that evidence of the unlawful layoff will not be used as a basis for future personnel actions against them. WE WILL jointly and severally with the Union make those employees named above and any other unit employees whole for any loss of earnings they may have suffered as a result of the discrimination against them, with interest. ENSIGN ELECTRIC, DIVISION OF HARVEY HUBBLE, INCORPORATED APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain and enforce any clause in our collective-bargaining agreement with Ensign Electric, Division of Harvey Hubble, Incorporated, according the recording secretary and treasurer su- perseniority with respect to layoff. WE WILL NOT cause or attempt to cause Ensign Electric, Division of Harvey Hubble, Incorporated, to discriminate against any employees by requiring that the collective-bargaining agreement be en- forced so as to lay them off instead of the record- ing secretary and treasurer when the recording sec- retary and treasurer do not in fact have top seniori- ty in terms of length of employment. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL notify both Ensign Electric, Division of Harvey Hubble, Incorporated, and employees David Rice, Raymond Soward, Paul Sansom, Charles Deal, Nelson Edmonds, Otho Mullins, Jimmy Nance, Clarence Copley, Joney Watts, and other affected employees that we have no objec- tion to reinstating the affected unit employees who but for the unlawful assignment of superseniority would not have been laid off. WE WILL jointly and severally with Ensign Elec- tric, Division of Harvey Hubble, Incorporated, make any unit employees whole for any loss of 623 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earnings they may have suffered as a result of the discrimination against them, with interest. UNITED STEELWORKERS OF AMER- ICA, LOCAL 5925, AFL-CIO-CLC DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge: These cases were heard in Huntington, West Virginia, on July 14, 1981, pursuant to charges filed and served and a con- solidated complaint which issued on June 10, 1981. The complaint alleges that Ensign Electric, Division of Harvey Hubble, Incorporated, herein the Respondent Employer, and United Steelworkers of America, Local 5925, AFL-CIO-CLC, herein the Respondent Union, have engaged in unfair labor practices in violation of Sections 8(a)(1) and (3) and 8(b)(1)(A) of the Act. The Respondents filed answers denying the allegation of un- lawful conduct set forth in the consolidated complaint. Upon the entire record, the briefs submitted by all par- ties, and upon my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION At all times material herein, the Respondent Employ- er, a West Virginia corporation, has been engaged in the manufacture of electrical distribution equipment and component parts for the mining industry at its Hunting- ton, West Virginia, facility. During the past 12 months, a representative period, the Respondent Employer, in the course and conduct of its business operations, purchased and received at its Huntington, West Virginia, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of West Virginia. The Respondent Employer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts and Background The essential facts are not in dispute. The Respondent Union represents employees employed by the Respond- ent Employer and has maintained a series of collective- bargaining agreements with the Respondent Employer over a period of many years. The most recent collective- bargaining agreement is effective from February 10, 1979, to October 1, 1981. Section 6-J of that agreement sets forth therein the following preferential seniority clause: The local union president, vice-president, record- ing secretary, treasurer and grievance committee shall have preferential seniority in the event of a layoff. Shop stewards shall have preferential seniori- ty in their department and on their shift provided they can perform the work remaining. A similar seniority preference clause, exclusive of se- niority preference for stewards, had been maintained in 1970. The stewards' coverage was added thereafter. In October 1978, there were, in total, about 340 em- ployees at the Huntington plants. Between March 1979 and April 1981, extensive layoffs reduced the work force from 262 to 68 employees. These layoffs were effectuat- ed pursuant to seniority and the seniority preference clause which was applied to prevent the layoff of stew- ards, grievance committeemen, and union officers.' Fi- nancial Secretary Valkie Fetty and Vice President Lyle James have "natural or earned" seniority which exceeds that of the employees laid off between March 1980 and April 1981, as well as the earlier 1979 layoffs. Union President James Godfry, Treasurer Doug Jarrell, and Recording Secretary George McCoy escaped the layoffs because of the contractual seniority preference, i.e., the so-called superseniority. The complaint alleges that the Respondents have vio- lated the Act by, in or about February 1980, maintaining and applying the seniority preference clause to the re- cording secretary, financial secretary, and treasurer, "notwithstanding they are not involved in the processing of grievances or the direct administration of the con- tract." It is agreed that those three officers are not di- rectly involved in the processing of grievances. The president and vice president are directly involved in grievance processing, and there is no allegation that ap- plication of superseniority to them is unlawful. B. The Union Jurisdiction of Local 5925 extends exclusively to the Respondent Employer's Huntington plants, where all employees are members and subject to the dues-checkoff provision in the union contract. Union officers are elect- ed by secret-ballot election. According to the Interna- tional's constitution, article VII, section 9(b), eligibility for election to the position of officer is conditioned upon employment at a plant or mill within the jurisdiction of the local union. It would appear that employment else- where would serve to disqualify an incumbent officer for re-election. The Local is governed by the provisions of the International Union's constitution, and bylaws for local unions, the latter of which grants enabling power to the local to enact supplementary rules. Local 5925 adopted its own bylaws, which, inter alia, set forth that between local general marketing meetings, the highest local authority shall be the local executive board consist- ing of the president, vice president, recording secretary, financial secretary, and treasurer. Only 5 of a total of II union officers are covered by the seniority preference clause. There were 10 shop stewards and 4 grievance commit- tee members. 624 HARVEY HUBBLE, INC. The function and duties of the executive board in- cludes monthly meetings and meetings on call of the president; evaluation and decision of matters to be ad- dressed to the local membership at regular membership meetings; investigation, evaluation, and recommendation to the membership at regular meetings as to whether members should attend conferences, seminars and schools, many of which concern union grievance proc- essing and contract administration; and, as occurred on one occasion in 1979, the evaluation and recommenda- tion to the membership of a change in the collective-bar- gaining agreement that had been proposed by the Re- spondent Employer. All members of the executive board have equal decisional authority which is manifested by a vote upon issues presented. The financial affairs of the Local are managed by the financial secretary, treasurer and, to a lesser extent, the president, pursuant to authority derived from the Inter- national constitution and guidelines set forth by the International Union in a detailed manual. They are re- sponsible for all disbursements and receipts and mainte- nance of records of such disbursements and receipts, in- cluding dues. The Local's financial management encom- passes such activities as the operation of a voucher system reimbursement by check of members for the ex- penses and loss of wages incurred by participation in union affairs, a voucher system for the purchase of local union property and supplies, a system for the dispensing of strike benefits, and a system for the payment of arbi- tration processing expenses. The activities of the financial officers are subjected to various review procedures of the International Union. Elected local trustees audit the Local's books every 3 months, and International auditors periodically conduct their own audits of the local records. As any member can file charges or complaints, the International Union may conduct an audit at any time. The treasurer and fi- nancial secretary must be available for those audits. They must also be available for any investigation or inquiry by governmental agencies and are responsible for reports to government agencies. They are obliged to make reports to the local membership body. Written reports are signed by them. Through a system of internal checks and bal- ances imposed by the International, the disbursement procedures require the participation of each financial of- ficer. Members' dues are forwarded to the Local Union from the employer pursuant to the checkoff system. The financial secretary deals directly with the Employer's as- sistant personnel director at the plant on matters con- cerning membership dues. In addition to a general account, the financial officers maintain as a separate account, a strike benefit account. Each financial officer participates in the disbursement of strike benefits. The most recent strike occurred in 1978- 1979 prior to the most recent contract and lasted 4-1/2 months. Financial Secretary Fetty was chairman of the strike committee. He set up a special bank account and maintained records of all disbursements and receipts; at that time he was solely responsible. Strike benefit fund management is now shared by the financial secretary, treasurer, president, and a "staff man" who must execute all strike benefit checks. The fund is audited by the International Union. All financial officers and the recording secretary are members of the executive board. The treasurer and finan- cial secretary spend 50 hours and 20 hours a month in the execution of their duties and are each paid a stipend. The recording secretary is responsible for the receipt at his home of all local union correspondence and main- tenance of all such correspondence at the union hall, in- cluding arbitration summaries and newsletters, and the forwarding of all incoming correspondence to the proper destination, e.g., to the president, the grievance commit- tee, etc. A file of arbitration summaries is maintained by him for use by stewards and grievance committeemen. He is unaided by any clerks or typists. He drafts all out- going correspondence upon consultation with the presi- dent and executive board. The recording secretary main- tains minutes of every monthly or special membership meeting. He maintains the monthly financial report. The International Union imposes on him certain duties re- garding internal union elections. On occasions he has ap- proached individual members on the jobsite, and elicited from them their interest in attending conferences and seminars, many of which pertain to grievance processing or contract administration. Like the financial secretary and treasurer, the recording secretary has occasionally been subjected to inquiries of members in the plant con- cerning their opinion of contract interpretation or griev- ances. The recording secretary spends 15 to 20 hours a month on his duties as an officer and receives a stipend. C. Analysis By majority opinion, the Board held in Dairylea Coop- erative, 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (2d Cir. 1976), that seniority preference which effectuated the job retention of stewards during layoffs to the detri- ment of employees with greater "earned" or "natural" seniority was lawful because the representational func- tion of the steward in the plant served the greater common good of all unit employees by furthering the ef- fective administration of bargaining agreements on the plant level. However, the Board held that because of the "inherent tendency of super seniority clauses to discrimi- nate against employees for union-related reasons," such clauses not limited to layoff and recall are presumptively unlawful and that the party asserting their legality must assume the burden of establishing justification. In Electrical Workers UE Local 623 (Limpco Mfg.), 230 NLRB 406 (1977), enfd. sub nom. Anna M. D'Amico v. NLRB, 582 F.2d 820, 824 (3d Cir. 1978), the Board was presented with the issue of whether seniority preference can validly be extended to union officers who may not possess "steward-type" functions. The Board majority re- jected the view that superseniority in layoff situations is presumptively valid exclusively where the beneficiary is involved in grievance processing at the work place. The Board majority stated at 230 NLRB 406, 407-408: What is at stake is the effective and efficient repre- sentation of employees by their collective-bargain- 625 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing representatives. Certainly, the representational activities carried out by union officials involved in the administration of the collective-bargaining agreement on behalf of employees extend beyond the narrow confines of grievance processing. These encompass at the very least a functioning local to assert the presence of the union on the job. The Act guarantees employees the right to be so represented through the collective-bargaining process. In fact, perhaps the most important union officer, the presi- dent, is usually not involved in grievance proceed- ings . .. we believe that, once it has been initially demonstrated that the official responsibilities of the union officer in question bear a direct relationship to their effective and efficient representation of unit employees, then their officer is entitled to the bene- fit of the same presumption afforded to union stew- ards. The Board held that the union demonstrated that the union officer, the recording secretary, qualified for the seniority preference by virtue of her role in the overall administration of the collective-bargaining agreement, and further stated that the General Counsel "continues to have the burden of proving affirmatively that the ap- plication of a superseniority provision to a functional union officer in a layoff situation is invalid." The Board noted, inter alia, that the recording secretary was a member of the executive board, was responsible for maintaining records of membership and executive board meetings, presented shop reports for absent stewards, handled all local correspondence, posted notices of mem- bership meetings, procured material needed by stewards, aided stewards in obtaining reimbursement for lost time on the job due to union duties, and participated informal- ly in the grievance process by aiding stewards in the writing of grievances and advising stewards on contract questions, helped formulate bargaining positions, sched- uled pickets during a recent strike and handled money for pickets. Finally, it is noted that if the recording sec- retary were laid off and thereafter was employed by an employer not a party to the collective-bargaining agree- ment, she would have been required to resign from office. The Board stated at 230 NLRB at 408: 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 amalga- mated local. Equally clear is the fact that the re- cording secretary participates informally in the processing of grievances. In Otis Elevator Co., 231 NLRB 1128 (1977), the Board held that superseniority for union officers (president, vice president, and executive board members) who acted as de facto stewards was justified. However, the Board stated (231 NLRB at 1129) in reference to its Limpco de- cisions: Thus, in Limpco, we approved superseniority for the recording secretary-not because of her infor- mal participation in grievances-but because we found that her official responsibilities bore a "direct relationship to the effective and efficient representa- tion of unit employees .... " Similarly, the officers here were entitled to superseniority because in their official capacities they contributed to the ability of the Union to represent the unit efficiently and effec- tively. The Board majority concluded that the General Counsel failed to prove the invalidity of the application of super- seniority to the aforesaid union officers. In Expedient Services, 231 NLRB 938 (1977), a Board majority approved the application of seniority preference to a recording secretary where union officers served as stewards and also participated in contract negotiations, subsequent supplements and amendments, and supplied guidance and instruction to stewards. The Board stated (231 NLRB at 940): "There is, then, no affirmative showing that the functions of officers, even without regard to their simultaneous duties as stewards, do not relate in general to furthering the bargaining relation- ship." In Allied Industrial Workers Local 1486 (Allen Testpro- ducts), 236 NLRB 1368 (1978), the Board majority adopted the administrative law judge's decision which found justifiable the application of superseniority for layoff purposes to the financial secretary of the union where that officer as part of her duties, inter alia, issued reports and checks to the International union; released funds for lost time reimbursement of employee members, attended excutive board meetings where bargaining strat- egy, bargaining demands and grievance policies were dis- cussed, but who had no direct responsibility in the proc- essing of grievances; and who spent 2 or 3 hours a week on her union duties. In the American Can Co., 235 NLRB 704 (1978), the Board noted that superseniority was afforded to certain union officers, including, inter alia, a guard, the duties of whom were described in the Union's constitution as something in the nature of a sergeant-of-arms and a trust- ee of whom the constitution gave "charge of the union hall" and union property. Citing the Limpco and Otis El- evator cases, the Board majority found the contractual superseniority clause presumptively lawful and noted 235 NLRB at 704 and 705: A documentary description of officers' duties showing no visible or direct impact by them on contract administration is insufficient evidence to overcome the presumption and to establish a viola- tion of the Act. The Board will not, on the basis of such evidence, second-guess a union's decision as to what officers aid the union in effectively represent- ing the unit. Thus, the parties to a collective-bar- gaining agreement do not have to justify applica- tions of superseniority to union officers, but, in order to establish a violation, the General Counsel must prove that a particular application is invalid. The Board majority concluded that the General Counsel did not sustain the burden of proof and it therefore dis- missed the complaint. Subsequently, the Board withdrew 626 HARVEY HUBBLE, INC. its order and reopened the proceeding to reconsider its decision because of the subsequent issuance by the Third Circuit of Ana M. D'Amico v. NLRB, supra. The Court (582 F.2d 820 at 825) therein stated: It is evident . . . that the true rationale for vali- dating a superseniority provision is found in the im- portant function served by the recipient of supersen- iority in providing continuity of representation in carrying out the objectives of a collective bargain- ing agreement. Thus, those who, like union stew- ards, assist in resolving grievances on-the-spot are in a special way fulfilling an essential purpose of col- lective bargaining, i.e., adjusting grievances at their source. However, with respect to the application of seniority preference for a recording secretary, the Court stated (582 F.2d at 835): Given the strong neutrality policy [Section 8 of the Act], we think that under Great Dane Trailers [388 U.S. 26 (1967)], the burden should be on the Union to justify the application of the provision to a recording secretary whose official duties in no way involved her in the collective bargaining proc- ess.... Furthermore we read the Board decision as requiring the Union to show that the Recording Secretary, as part of her official responsibilities and not merely as a volunteer, performed services which directly assisted in implementing the collec- tive bargaining agreement. We take this to mean that the Union was obligated to produce credible proof that the individual in question was officially assigned duties which helped to implement the col- lective bargaining agreement in a meaningful way. In reviewing the underlying facts, the Court stated that several of the duties of the recording secretary furthered the collective-bargaining interests of the bar- gaining unit, and noted, for example, the informal proc- essing of grievances, the participation in formulating bar- gaining ideas, the scheduling of pickets during a recent strike and handling of money for pickets. In reconsidering its decision in American Can Co. (II), 244 NLRB 736, 737 (1979), the Board majority noted the divergence of opinion of Board Members with respect to the seniority preference issue. It characterized its Supple- mental Decision and Order "based upon an aggregate majority" as follows: Chairman Fanning and Member Truesdale do not agree with the restrictions placed on superseniority by Dairylea and its progeny (see their dissent herein); Members Jenkins and Penello would not permit union officers to benefit from superseniority except when the officers also serve as stewards or otherwise engage in administration of the contract at the place and during the hours of their employ- ment (see their concurrence herein); and Member Murphy adheres to Dairylea and Limpco, supra, but finds that the General Counsel has rebutted the pre- sumption that the union officers here involved were lawfully afforded superseniority by showing that [the trustee and guard] are not engaged in contract administration (see her separate concurrence herein). 2 In their brief in this case, counsels for the General Counsel state: At issue in this case is the application of the Board's decision in the American Can Company, . . . to a local union recording secretary, financial secretary and treasurer. In view of the unsettled state of the law regarding superseniority for union officers it is impossible at this time to point to any conclusive test by which a particular superseniority clause or its application may be judged. The widely divergent views of the Board members in American Can cast little light on the legality of the application of superseniority to the officers at issue in the in- stant case; however, counsels for the General Coun- sel believe that a close review of American Can and prior decisions, in view of their underlying ration- ale, supports the position that Respondent violated the Act by granting superseniority to those officers. The General Counsel argues that the duties of the three officers in issue herein are not only unrelated to the grievance procedure but they are not directly related to the administration of the collective-bargaining agree- ment. The General Counsel characterizes the duties of these three officers as related wholly to the internal ad- ministration of the union which it divorces from the fur- therance and maintenance of the collective-bargaining re- lationship. Furthermore, the General Counsel argues that in any event there is no necessity for the continued em- ployment in order for those officers to fulfill their duties, i.e., they can as easily function from their houses if need be. The Respondent Employer and the Respondent Union argue that Dairylea, Limpco, Otis Elevator, and other cases cited above have not been overruled by the Board, and that under the rationale of those cases the extension of superseniority to the three officers involved herein is fully justified in that those three officers do participate in the administration of the collective-bargaining agreement by virtue of the necessity of their functions to effectuate efficient representation of unit employees, to maintain vi- ability of the collective-bargaining relationship, and to maintain a continuity of representation. They contend that the General Counsel takes an unjustifiably restrictive and unrealistic view of what constitutes "contract admin- istration." As the Respondent Union argues in its brief: It should be obvious that a functioning local union is functionally integrated within the concept of ef- fective bargaining. If dues are not collected, the union eventually dies; if membership records are not maintained, membership affairs cannot be conducted and if bills are not paid, arbitrators cease taking as- 2 Member Murphy concluded in her concurrence that the duties of the trustee and guard were "too remote" and unrelated to the "general fur- thering of the bargaining relationship." 627 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signments or worse, the local union membership who maintain grievance records are no longer avail- able. It is simply improper and impossible to segregate local union administration from collective bargain- ing functions. I am in agreement with what appears to be the consen- sus of all parties herein that the Board has not overruled its prior decisions with regard to the basic rationale of justifiable seniority preference for union officers in layoff situations. The American Can case provided a forum for the reassertion of varying views of that rationale. How- ever, I am constrained to apply what appears to be the unreversed Board precedent in the matter. The American Can case seems, at most, to have clouded the issue of which party has the burden of proof and which party must move forward with the evidence, in that it re-eval- uated its prior decision in that case upon an evaluation of the Tenth Circuit Court's conclusion that the Union is "obligated to produce credible proof that the [union offi- cer] was officially assigned duties which helped to imple- ment the collective bargaining agreement." Of the major- ity, only then Member Murphy explicitly referred to the burden of proof in concluding that the General Counsel satisfied that burden by adducing documentary evidence consisting of the union constitution which failed to dis- close relevant duties. She seemed to suggest that the General Counsel must move forward with evidence that the union officer performs nonrelevant duties, but that the union must affirmatively prove duties that justify se- niority preference. Unlike the American Can decision, the Respondent Union and the Respondent Employer have elicited testi- mony and adduced evidence of meaningful and relevant official duties of the union officers. I conclude that the evidence of their duties satisfies the various criteria set forth by the Board in its prior decisions which justify the application of seniority preference to the financial secre- tary, treasurer, and recording secretary in layoff situa- tions. I am in agreement with the Respondents that prior Board decisions do not impose such a restrictive defini- tion of "contract administration" as is urged by the Gen- eral Counsel. I agree that seniority preference must be premised upon its ultimate objective, the maintenance of the collective-bargaining relationship by the effective ad- ministration of the contract. The justification for the re- tention of stewards on the job at the plant during a layoff of other employees is the resulting continuity of representation and contract administration in the plant. With respect to union officers, the majority opinions of the Board hold that justification for their job retention is not to be judged by the criteria applied to stewards, i.e., the need for presence in the plant to process grievances. Rather, a broader view has been applied to union offi- cers. The underlying concept to justify job retention of union officers is that argued by the Respondents, i.e., that it is unrealistic and impractical to divorce the Union's functional administration from contract adminis- tration where functional administration is necessary for the viability of effective and meaningful contract admin- istration at the plant level. I agree with the Respondent's argument that layoff of the union officer, particularly in a situation of declining overall employment, is a threat to the continuity of effective representation and administra- tion by experienced union officers. Turnover of function- ally necessary union officers can only be disruptive to the bargaining relationship. A union officer who has found employment elsewhere is barred from seeking re- election. If he is employed elsewhere, his prime loyalty and interest will turn to his new employment and new coworkers even if he does not choose to resign. More- over, it is unrealistic to expect that union officer having been laid off during a continuing downward employment spiral will continue to serve as effectively and attentively to their duties even if they have not as yet found other employment. Even though officers might be able to per- form functionally necessary duties outside the work place, their presence and accessibility on the jobsite en- hances the Union's presence. Their continued presence on the job insures a continued awareness by them of cur- rent conditions of employment of their members that en- ables them to intelligently cope with problems that arise and to which they must address themselves in their offi- cial capacity. Thus, for example, executive board mem- bers having firsthand, continuing experience of job, pro- duction, or personnel problems can intelligently evaluate employer proposals to amend, modify, or suspend appli- cation of terms of the collective-bargaining agreement, and can intelligently address the membership on such issues. The evidence herein demonstrates that all three offi- cers herein, as executive board members and in their in- dividual capacities, perform administration functions that are directly related to the vital day-to-day functioning of the local union, e.g., the maintenance of an orderly finan- cial system and the ability of the local union to effective- ly communicate with its members and with other entities. The maintenance of a strike fund, for example, is of utmost importance to the Union's effective role in the bargaining relationship as is the ability to draw upon the resource of a strike committee chairman. The education of its members in areas of grievance procedure and con- tract administration is manifestly directly related to the ability of the Union to effectively represent employees at the plant level. The union officers' role in ascertaining and effectuating that education and the selection of the appropriate recipient of such education by external as well as internal communication on the job is as vital to that object, if not more so, as is the receipt of such edu- cation by a particular member. The dissemination of re- source materials to the stewards, and the maintenance of an orderly file of such material, manifestly aids the stew- ards in their grievance processing effectiveness. The abil- ity to pay for arbitration costs is of paramount impor- tance. I conclude that the duties of the recording secretary, financial secretary, and treasurer, including their duties as members of the executive board, constitute vital, meaningful duties which are sufficiently related to the ul- timate objective, the maintenance of an effective bargain- ing relationship by the implementation of the collective- 628 HARVEY HUBBLE, INC. bargaining agreement, to justify the application of a se- niority preference to their positions in the context of facts in this case. Accordingly, I find that the complaint is without merit and ought to be dismissed. D. The 10(b) Issue The Respondent Union at the hearing, and the Re- spondent Employer in its brief, raises the affirmative de- fense that the underlying charge is untimely filed under Section 10(b) of the Act. 3 3 Sec. 10(b) of the Act provides in relevant part that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of The Respondent Union argues, inter alia, that since the first application of superseniority occurred in 1979 the charge is untimely. In view of my conclusion that the complaint lacks merit it is unnecessary to engage in a dis- cussion of this issue, other than to conclude that Re- spondent's position, although in accord with the opinion of the Fifth Circuit Court of Appeals, is contrary to Board precedent. Auto Warehousers, 227 NLRB 628, 633-634 (1976), enf. denied 571 F.2d 860 (5th Cir. 1978). [Recommended Order for dismissal omitted from pub- lication.] a copy thereof upon the person against whom such charge is made 629