Teamsters Local 293 (Lipton Distributing)

538 311 NLRB No. 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Teamsters Union Local No. 293, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL–CIO (R. L. Lipton Distributing Co., Inc.) and Robert J. Velotta and Cuyahoga County Beer Distributors Association, Inc., Party in Interest. Case 8–CB–6904 May 28, 1993 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT Upon a charge filed by Robert J. Velotta, an Indi- vidual, on December 21, 1990, the General Counsel of the National Labor Relations Board issued a complaint on February 4, 1991, against Teamsters Union Local No. 293, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL–CIO, the Respondent, alleging that it has violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act. With respect to the unfair labor practices, the com- plaint alleges in substance that the Respondent has vio- lated Section 8(b)(1)(A) by maintaining a provision in its collective-bargaining agreement with the Cuyahoga County Beer Distributors Association, Inc., of which R. L. Lipton Distributing Co., Inc., the Employer, is a member, providing that union shop stewards receive 45 cents per hour in addition to their regular rate of pay and that the Respondent also has violated Section 8(b)(2) by causing and attempting to cause the Em- ployer and other members of the Association to dis- criminate against employees who are not shop stewards by denying them the benefit of the 45-cent-per-hour wage increase. Thereafter, the Respondent filed an an- swer and an amended answer to the complaint admit- ting in part and denying in part the allegations in the complaint and raising certain affirmative defenses. On September 30, 1992, the General Counsel filed a Motion for Summary Judgment. On October 2, 1992, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed an opposition to the motion. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The complaint, the Respondent’s answers, and uncontroverted documents submitted by the General Counsel in support of the Motion for Summary Judg- ment show that on or about June 1, 1990, the Re- spondent and the Cuyahoga County Beer Distributors Association, Inc., the Association, entered into a col- lective-bargaining agreement. Since June 25, 1990, the Respondent and the Association have maintained a provision in their contract which provides in pertinent part at article XI: The Shop Steward shall be paid, in addition to his regular rate of pay, at the rate per hour (based on forty (40) hours per week) of: $.45 per hour Article XI of the contract also provides that the Union will appoint one shop steward at each plant, who is to ‘‘ascertain the standing of the various and several Union members . . . reporting said standing to the Local Union.’’ It is the shop steward’s responsibility, under article XI, to notify the Union of any and all grievances that arise at the steward’s place of employ- ment. The General Counsel, as noted, contends that the Respondent has violated Section 8(b)(1)(A) by main- taining and enforcing a contract provision that requires the payment of a higher wage rate to union shop stew- ards because they serve as stewards and that the Re- spondent also violated Section 8(b)(2) by causing the Employer and other members of the Association to discriminate against employees who are not shop stew- ards in violation of Section 8(a)(3). We agree with the General Counsel and, therefore, we shall grant the Mo- tion for Summary Judgment. In considering the issues raised here, we rely prin- cipally on the following holding of Dairylea Coopera- tive, 219 NLRB 656, 658 (1975), enfd. 531 F.2d 1162 (2d Cir. 1976): [S]uper seniority clauses which are not on their face limited to layoff and recall are presumptively unlawful, and the burden of rebutting that pre- sumption (i.e., establishing justification) rests on the shoulders of the party asserting their legality. Article XI of the relevant contract here provides that union shop stewards receive 45 cents per hour in addi- tion to their regular pay. Thus, because the super- seniority accorded to shop stewards in this case is not limited to layoff and recall, there is a presumption under Dairylea that the contract provision bestowing this monetary benefit exclusively on union stewards is unlawful. The Respondent, in its opposition brief, points out that article XI of its collective-bargaining agreement does not require that shop stewards be union members. The Respondent also stresses that in this case the Gen- eral Counsel failed to show whether union officials ap- point the shop stewards or whether the unit employees elect them and the Union then appoints them in accord with the election results. The Respondent contends that, in the absence of evidence on these two critical issues, summary judgment cannot be granted. Accord- 539 TEAMSTERS LOCAL 293 (LIPTON DISTRIBUTING) 1 Dairylea, supra at 657–658. In any event, the employee selected as steward, regardless of membership, acts as the union’s agent in representing employees vis-a-vis the employer. Because the contract grants the wage premium solely on the basis of steward status, the employee serving as steward is rewarded for his or her union activi- ties. 2 Great Lakes Carbon Corp., 152 NLRB 988 (1965), enfd. 360 F.2d 19 (4th Cir. 1966). 3 F. M. Transport, 302 NLRB 241 (1991), and cases cited there. ingly, the Respondent urges the Board to deny the General Counsel’s Motion for Summary Judgment. The contractual provision requiring employers to pay union shop stewards an additional wage of 45 cents per hour on its face provides a monetary reward for service as a union agent within the plant, so it plainly has a tendency to encourage union activity. Be- cause only stewards receive these additional payments, we find that they interfere with the unit employees’ Section 7 right to refrain from engaging in union ac- tivities in violation of Section 8(b)(1)(A). See Team- sters Local 20 (Seaway Food Town), 235 NLRB 1554, 1558 (1978). Further, these payments also violate Sec- tion 8(b)(2), as alleged in the complaint, because they cause employers to discriminate against employees who do not serve as shop stewards. Although there is no requirement in the Respondent’s collective-bar- gaining agreement with the Association that employees acting as stewards must also be union members, the Board in Dairylea made the assumption that labor or- ganizations, in naming their stewards, would choose employees who generally believed in and supported union policy and goals.1 Furthermore, contrary to the Respondent’s argument, the Board found in Seaway Food Town, supra at 1556, that the union’s mainte- nance and enforcement of a similar contractual provi- sion violated Section 8(b)(1)(A) and (2) of the Act where the evidence showed that the unit employees elected their shop stewards. Finally, we reject the Respondent’s arguments in its amended answer that the complaint and its underlying charge are barred by either Section 10(b) of the Act or the doctrine of laches. Because the contractual re- quirement of additional hourly pay for shop stewards is invalid on its face, Section 10(b) does not preclude the Board from finding that the provision is unlawful more than 6 months after the execution of the contract because of the continuing nature of the violation.2 Fur- ther, the doctrine of laches is not applicable to the fil- ing of a charge whose timeliness is determined solely by Section 10(b). Regarding the Respondent’s conten- tion that the doctrine of laches barred issuance of the complaint, the Board has consistently held that laches is generally not a valid defense in Board proceedings and the Respondent has failed to show any prejudice that would justify its application here.3 For these reasons, we find that the Respondent has violated Section 8(b)(1)(A) and (2) of the Act by maintaining the provision in article XI of its collective- bargaining agreement with the Association providing additional hourly pay for union shop stewards. FINDINGS OF FACT I. JURISDICTION The complaint alleges, and the Respondent admits, that the Employer is a beverage distributor, which an- nually, in the course and conduct of its business oper- ations, sells and ships from its Cleveland, Ohio facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Ohio. We find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent also admits, as alleged in the com- plaint, that it is a labor organization within the mean- ing of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES On or about June 1, 1990, the Respondent and the Association entered into, and since June 25, 1990, have maintained an agreement which provides, inter alia, that ‘‘[t]he Shop Steward shall be paid, in addi- tion to his regular rate of pay, at the rate per hour (based on forty (40) hours per week) of: $.45 per hour.’’ For the reasons stated above, we grant the General Counsel’s Motion for Summary Judgment and find that the Respondent has violated Section 8(b)(1)(A) by maintaining this contractual provision in its collective- bargaining agreement with the Association and has violated Section 8(b)(2) by causing and attempting to cause the Employer and other members of the Associa- tion to discriminate against employees who are not shop stewards in violation of Section 8(a)(3) by deny- ing them the benefit of the 45-cent-per-hour wage in- crease accorded shop stewards. THE REMEDY Having found that the Respondent has violated Sec- tion 8(b)(1)(A) and (2) of the Act, we shall order that it cease and desist and that it take certain affirmative action to effectuate the policies of the Act. Further, having found that the contractual provision which accords union shop stewards an additional pay- ment of 45 cents per hour to be unlawful, we shall order that the Respondent cease and desist from main- taining such clause in its collective-bargaining agree- ment with the Cuyahoga County Beer Distributors As- sociation. 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 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 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.’’ CONCLUSION OF LAW By maintaining a clause in its collective-bargaining agreement with the Cuyahoga County Beer Distribu- tors Association, Inc., which accords union shop stew- ards an additional payment of 45 cents per hour be- cause they are shop stewards and by causing and at- tempting to cause the Employer and other members of the Association to discriminate against employees who are not shop stewards in violation of Section 8(a)(3) by denying them the benefit of the 45-cent-per-hour wage increase accorded shop stewards, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. ORDER The Respondent, Teamsters Union Local No. 293, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of Amer- ica, AFL–CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining the clause in its collective-bar- gaining agreement with the Cuyahoga County Beer Distributors Association, Inc., which accords union shop stewards an additional payment of 45 cents per hour. (b) Causing and attempting to cause R. L. Lipton Distributing Co., Inc. and other members of the Cuya- hoga County Beer Distributors Association, Inc. to dis- criminate against employees who are not union shop stewards by denying them the benefit of the 45-cent- per-hour wage increase accorded shop stewards. (c) In any like or related manner restraining or co- ercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business office, hiring hall, and meet- ing halls copies of the attached notice marked ‘‘Ap- pendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director with a sufficient supply of signed copies of the notice for posting, if so desired, by R. L. Lipton Distributing Co., Inc., and other employer members of the Cuyahoga County Beer Distributors Association, Inc. at all places where no- tices to employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. MEMBER DEVANEY, dissenting. I would deny the General Counsel’s Motion for Summary Judgment and remand this proceeding for a hearing. First, the contract provision does not require that shop stewards be union members. While the Re- spondent has the authority to appoint stewards, there is no evidence that only union members are stewards. Second, there is no record evidence as to whether the stewards are elected and appointed only in accord with the election results. I would note that the General Counsel further relies heavily for his position on the Board’s decision in Plumbers Local 119 (Mobile Me- chanical Contractors), 255 NLRB 1056 (1981). How- ever, the Board in that case adopted the judge’s find- ings of violations pro forma in the absence of excep- tions. Id. at fn. 1. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT maintain the clause in our collective- bargaining agreement with the Cuyahoga County Beer Distributors Association, Inc., of which R. L. Lipton Distributing Co., Inc. is a signatory member, which ac- cords union shop stewards an additional payment of 45 cents per hour because they are shop stewards. WE WILL NOT cause or attempt to cause R. L. Lipton Distributing Co., Inc. and other members of the Cuyahoga County Beer Distributors Association, Inc. to discriminate against employees who are not union shop stewards by denying them the benefit of the 45- cent-per-hour wage increase accorded shop stewards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. TEAMSTERS UNION LOCAL NO. 293, AF- FILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL–CIO