Gulton electro-Voice, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gulton Electro-Voice, Inc. and Local 900, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC Local 900, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and William L. Schock. Cases 7-CA-18952 and 7- CB-5104 March 7, 1983 DECISION AND ORDER This case¹ raises the question whether the Board will continue to find lawful superseniority contract clauses which grant superseniority for layoff and recall to union officers who do not perform steward or steward-like functions; i.e., grievance processing or other on-the-job contract administration responsibilities. We have reconsidered Limpco Manufacturing Co.,2 and its progeny,³ and have decided to overrule those cases to the extent they are inconsistent with this Decision. In doing so, we conclude that superseniority accorded to officers who do not perform steward or other on-the-job contract administration functions is not permissible because it unjustifiably discriminates against employees for union-related reasons. The Administrative Law Judge, applying the precedent we are overruling herein, found that the superseniority provided to Respondent Union's financial secretary-treasurer and recording secretary does not violate the Act because it is justified in recognition of their union service and their special position in relation to collective bargaining that benefits the entire bargaining unit. As we find that the union officers at issue are responsible for neither processing grievances nor on-the-job contract administration, we conclude that it is unlawful to accord superseniority to them. The facts are set out more fully in the Administrative Law Judge's Decision. Briefly, the Respondents entered into a collective-bargaining agreement, effective June 1978 to June 1981, that contained seniority preference as to layoff and recall rights for union officers serving in seven specified offices.⁴ The parties stipulated that the 1 On January 7, 1982, Administrative Law Judge David S. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respondent Union filed cross-exceptions and a supporting brief. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings. findings, and conclusions of the Administrative Law Judge only to the extent consistent with our Decision herein. 2 United Electrical. Radio and Machine Workers of America, Local 623 (Limpco Mfg. Co.), 230 NLRB 406 (1977). enfd. sub nom. Anna D'Amico V. N.L.R.B., 582 F.2d 820 (3d Cir. 1978). 3 See, in particular, The American Can Company, 244 NLRB 736 (1979). 4 The collective-bargaining agreement. in pertinent part, provided: issues in this case should be limited to the superse iority provision as it applied to the then current r cording secretary and financial secretary-treasure They further stipulated that the superseniority a corded by the collective-bargaining agreement t the financial secretary-treasurer had no effect o anyone in the bargaining unit in the precedin year, but that on various dates including Novembe 5 and 6, 1980, there were layoffs affecting employ ees who would not have been laid off but for the collective-bargaining agreement's grant of super seniority to the recording secretary. In her capacity as recording secretary, Denise Payne testified that she has neither been involved in the processing of employee grievances nor has she met with management regarding any contract administration problems.⁵ Alice Travis testified that her responsibilities as the financial secretary- Article 5, Section 1. Layoffs. In all cases of permanent layoffs and rehiring, seniority and skill shall govern. When it becomes necessary to layoff employees, the junior employees in point of service shall be laid off first, and the senior employees laid off last, except that ability and training to perform work shall be considered by Management and Union. When rehiring takes place, the senior employees shall be called back to work first, and the junior employees last, except that ability and training to perform work shall be considered. Article 20, Section 2. Notwithstanding the above provisions, Union officers shall be the last to be laid off and the first to be rehired, as far as practical, in operation of the plant in accordance to preference as listed below: 1. President 2. Vice President 3. Chief Stewards 4. Negotiating Committee Members 5. Financial Secretary-Treasurer 6. Recording Secretary 7. Leave of Absence Committee Members The Respondents entered into a subsequent contract which includes the same pertinent language. The Respondents agreed on a "moratorium" on seniority preference for the recording secretary and financial secretary-treasurer until the instant case is resolved. 5 The union constitution delineates the responsibilities of the recording secretary: (A) Keep all records of the meetings of the Local Union and Executive Board. (B) Conduct all correspondence. (C) Provide the Union (International) regularly with an up-to-date mailing list of the Local's members. (D) Perform such other duties with the approval of the Local Executive Board as may be necessary for the proper and effective administration of the affairs of the Local. (E) Send official notice in conjunction with the President to the Secretary-Treasurer of the Union informing him that the Local's books and records have been audited and stating the condition of the books and records. Payne testified that her union duties essentially follow those delineated in the union constitution. Specifically, at local membership and executive board meetings, she takes minutes and reads the minutes from the previous meeting and, at the executive board meetings, she takes attendance. She does the Local's filing and correspondence and posts all union notices. Four times a year she updates membership lists for the International and is responsible for any other communications with the International including sending it the negotiated collective-bargaining agreement, local election information, and information about any legal actions. For the most recent contract, the only one negotiated since she became the recording secretary, Payne typed the Local's proposals but did not otherwise participate in contract negotiations. 266 NLRB No. 84 GULTON ELECTRO-VOICE, INC. :nreer. IC- to on ng er »ythe erise ed has act ied ryand sary Il be bility nent II be that nion d, as ence treasurer include a monthly meeting with the Respondent Company's financial officer which takes place at the plant. Her official role in contract administration is limited to monitoring the dues withholding program. She is not involved in processing grievances. Travis fulfills most of her official duties at home and is paid by the Local for 10 hours of work every month.⁶ ludes ium" rding ecre- In addition to their particular duties, both the recording secretary and financial secretary-treasurer sit, along with the other elected officers, on the Respondent Union's executive board. That board governs the Local's activities including setting meeting agendas, overseeing expenditures, determining election matters, and generally administering the Local's business. It does not have authority over how grievances are processed, nor over how a grievance ultimately is resolved. It also does not constitute the negotiating committee, although it does draft the letter to the Respondent Company to initiate negotiations. 1 Ex- -date 1 Exe ad- Before explaining the factors prompting our decision that application of superseniority to these union officers is unlawful, we will review the leading Board cases in this area. O the ocal's of the eated cutive previlance. n notional tional local or the he reother- In Dairylea Cooperative, Inc.,⁷ the Board considered the lawfulness of a clause in a collective-bar- 6 The union constitution provides that the financial secretary-treasurer has these responsibilities: (A) Receive, receipt and account for all money paid to the Local. (B) Furnish all supplies pertaining to the Local. (C) Pay all bills authorized by the Local. (D) Give account of all Local expenditures. (E) Deposit all money, as directed by the Local Executive Board, within five (5) business days of receipt. Account for all money deposited. (F) Furnish a monthly financial report of the Local. (G) Furnish a report on and payment for, per capita to the national office of the Union not later than the 20th day of the month following the month in which dues are collected. (H) Furnish a semi-annual report to the Union. (I) Perform all such duties, with the approval of the Local Executive Board, as may be necessary for the proper and effective administration of the financial affairs of the Local. (J) Sign checks in conjunction with the President or Vice-President. Travis stated that her responsibilities as financial secretary-treasurer include: meeting monthly with the company financial officer to review administration of the dues withholding program; receiving the withheld dues, depositing them in a bank, alloting some for the Union's "defense" fund, and sending the per capita to the International and District: making out membership cards for members every year; filling out and sending quarterly reports to the Federal Government and an annual compensation report to the State of Michigan; attending quarterly and annual audits of the Local's books; verifying employees' vacation checks and figuring and paying "lost" time for those employees entitled to vacation check reimbursements from the Union; filling out W-2, LM-2, and other state and Federal Government forms; ordering union supplies and paying all bills; maintaining the bank accounts and petty cash; and, if there were a strike, handling the weekly strike benefits. 7 219 NLRB 656 (1975), enfd. sub nom. Milk Drivers and Dairy Employees, Local 338, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America V. N.L.R.B., 531 F.2d 1162 (2d Cir. 1976). gaining agreement that accorded stewards top seniority with respect to all contractual benefits where seniority was considered, such as preference in layoff, recall, overtime assignments, vacations, driver routes, shifts, and days off. The Board majority noted that superseniority clauses discriminate against employees for union-related reasons. However, the Board also recognized that steward superseniority furthers the effective administration of bargaining agreements on the plant level by encouraging the continued presence of the steward on the job. It thereby not only serves a legitimate statutory purpose but also redounds in its effects to the benefit of all unit employees. Thus, superseniority for layoff and recall has a proper aim and such discrimination as it may create is simply an incidental side effect of a more general benefit accorded all employees. [219 NLRB at 658.] Thus, the Board majority in Dairylea concluded that steward superseniority provisions limited to layoff and recall situations are presumptively valid but superseniority provisions as to other job benefits are presumptively invalid. Two years later, in Limpco, supra, the Board was asked to consider whether superseniority for purposes of layoff could be extended to union officers. At issue in Limpco was whether the recording secretary, the only officer at the affected plant, could benefit from superseniority in the case of a layoff. Her official duties as recording secretary were similar to the duties of the recording secretary in this case although the Limpco recording secretary also "participated informally" in processing grievances, advised stewards and foremen on contract interpretation, and handled problems in general. In Limpco, the Board majority concluded that facilitating the effective administration of a collective-bargaining agreement extended beyond grievance processing to ensure "at the very least a functioning local to assert the presence of the union on the job." (230 NLRB at 408.) It further concluded that upon a showing that the official responsibilities of the union officer "bear a direct relationship to the effective and efficient representation of unit employees" (230 NLRB at 408), then the officer is entitled to the benefit of the same presumption afforded to union stewards. Consequently, the Board majority in Limpco found that the General Counsel has the burden of showing that application of supersenior- DECISIONS OF NATIONAL LABOR RELATIONS BOARD ity provisions to a "functional union officer" in a layoff situation is invalid.⁸ In American Can Company, supra, the Board considered the propriety of retention and recall superseniority granted to: (1) a union trustee whose duties were "to have charge of the hall and all property of the Local Union and perform such other duties as the Local Union may require," and (2) to a union guard whose duty it was "to take charge of the door and see that no one enters who is not entitled to do so." The Board aggregate majority found the application of the superseniority provision to those employees unlawful. Member Jenkins and then Member Penello stated they would find unlawful and unenforceable any superseniority provisions which do not limit superseniority to stewards unless the officers who also benefit from superseniority engage in administration of the contract at the plant during work hours. Then Member Murphy found presumptively lawful those superseniority clauses that give job retention superseniority for union stewards and officers whose functions relate in general to furthering the bargaining relationship. She found that the General Counsel had the burden of rebutting the presumption that the application of a superseniority clause to an officer is valid. She further found that, if the General Counsel did so by showing the officers were not engaged generally in furthering the bargaining relationship, then the burden shifted to the respondents to establish that the officers actually perform such functions. On the facts in American Can, she concluded that the General Counsel had met his burden but that the respondents were unable to meet theirs. Accordingly, she joined Members Jenkins and Penello in finding the application of superseniority to the officers in question unlawful. Then Chairman Fanning and then Member Truesdale would have dismissed the complaint because they believed that superseniority benefits accruing to stewards and officers have no significant impact on employees' Section 7 rights and that superseniority for officers serves the purpose of effective and efficient representation of unit employees. They concluded that, if superseniority clauses are bargained in good faith and are reasonable, then they are presumptively lawful. We have, as noted above, reviewed Dairylea and the related cases and conclude that the grant of superseniority to those who do not perform steward or other on-the-job contract administration functions is not justified. Thus, we reject the standard of "effective and efficient representation of employees by their collective-bargaining representatives" that was articulated in Limpco⁹ and its progeny. As the Board stated in Dairylea, superseniority discriminates on the basis of union-related activities and in and of itself is at odds with Section 7 of the Act. Nevertheless, the Board found that the benefit that limited types of superseniority furnishes to all unit employees compensates for its inherent discrimination. In our view, the balance struck in Dairylea was correct.) In consideration of the underlying purpose of the Act "to provide additional facilities for the mediation of labor disputes affecting commerce, insuring the enforcement of the collective-bargaining agreement by retaining on the job union representatives responsible for processing grievances is a sufficiently compelling reason to allow limited superseniority with respect to layoff and recall to those who perform steward-like duties. It is the immediacy of attention that stewards can offer that place the stewards in such a special position. Further, steward job-retention superseniority is necessary to the stewards' ability to carry out the primary duties of their union position. However, superseniority is inherently discriminatory and the stewards' need to maintain an onthe-job presence does not generally apply to officers; thus the justification used for stewards does not extend to officers generally-unless the latter perform steward-like duties. The Board in Limpco nevertheless found superseniority justified for officers on the basis of the need for "the effective and efficient representation of employees by their collective-bargaining representatives. As Member Jenkins and then 8 Similarly, in Otis Elevator Company. 231 NLRB 1128 (1977). a Board majority held that union officials may lawfully be given superseniority if in their capacity as union officials they further the union's ability to effectively and efficiently represent the unit. 9 In rejecting the Limpco standard. we do not necessarily suggest that the superseniority accorded to the Limpco recording secretary would be unlawful under the standard set forth herein, as she did perform some grievance functions. Rather, we do not speculate as to how we would decide those facts under the test enunciated in this case. 10 Preamble to the Act. 11 The Limpco majority noted that the Dairylea Board considered the Supreme Court's analysis in Aeronautical Industrial Lodge 727 V. Campbell. 337 U.S. 521 (1949). That case involved superseniority contractually provided to shop stewards or union chairmen who process. and adjust grievances at the workplace. The Supreme Court upheld that provision (the validity of which was challenged under the Selective Training and Service Act of 1940), finding that it was continuity of office for its representatives that the union justifiably felt was necessary because of those representatives' "special position in relation to collective bargaining for the benefit of the whole union." (337 U.S. at 527.) The Limpco majority focused on the representatives' "special position in relation to collective bargaining." However, it relegated to a footnote the critical fact that the representatives at issue in Campbell had grievance responsibilities. Thus, like Dairylea, the Campbell decision was focused on representatives who had on-the-job union duties. In finding their job-retention superseniority lawful. the Supreme Court established nothing broader than the limited exception carved by the Board in Dairylea. In reviewing the Dairylea rationale, the Limpco majority also analyzed what "administration of the collective-bargaining agreement" may entail. In so focusing the analysis, though, the Board excised the second half of Dairylea's concern: administration of bargaining agreements on the plant level. GULTON ELECTRO-VOICE, INC. Member Penello pointed out in their Limpco dissent, 230 NLRB at 409, "[i]n 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." Whereas the Dairylea majority focused on immediate on-the-job, at-the-plant, representational activities, the Limpco majority looked instead at the whole collective-bargaining process which, it argued, requires a functioning union organization. However, as the Limpco dissent states, the "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 To broaden the proper objective of superseniority; i.e., to protect the whole process of collective bargaining discriminatorily tips the balance against individual employee rights [230 NLRB at 409]." Further, an officer's continued employment within the unit is not determinative of a union's ability to administer a collective-bargaining agreement. Merely because an officer is laid off does not compel his or her renunciation of union responsibilities. Further, changes in union officers are not so disruptive to unit representation as to warrant a blanket conveyance of superseniority. Unions can and do routinely replace their officers through constitutional procedures without undue disruption to their ability to administer their collective-bargaining agreements. And there has been no showing in this or any other case involving the issue of superseniority for union officers that unions will be crippled in their ability to administer collective-bargaining agreements without the benefit of officer superseniority. We also find unpersuasive the assertion, repeatedly made by former Member Fanning, that superseniority does not interfere with employees' Section 7 rights, but merely rewards and encourages service as a union official, which in turn benefits all employees because superseniority attracts better union representatives. Dairylea, supra, 219 NLRB at 662; A.P.A Transport Corp., 239 NLRB 1407, 1412 (1979); American Can, supra, 244 NLRB at 740. Such an effect, even if true, does not justify the grant of superseniority to officials with no onthe-job union duties. Job retention superseniority is an exceptional benefit. To uphold it we must be satisfied that it is necessary to further the administration of the bargaining agreement on the plant level. As the majority stated in Dairylea, "it nevertheless remains the union's task to build and maintain its own organization, and where the immediate problem is simply a matter of encouraging employees [to serve as a union representative] a union can alone handle the situation simply by paying employees or by giving them other nonjob benefits [219 NLRB at 659.]" None of the arguments we have considered, separately or in aggregate, justifies upholding superseniority beyond that sanctioned in Dairylea. The considerations that permitted the Board in Dairylea to justify superseniority for layoff and recall to stewards are not applicable, to officers who have no on-the-job union duties. We will find unlawful those grants of superseniority extending beyond those employees responsible for grievance processing and on-the-job contract administration. We will find lawful only those superseniority provisions limited to employees who, as agents of the union, must be on the job to accomplish their duties directly related to administering the collective-bargaining agreement. In the instant case Respondent Union contends that its membership desires the seniority preference, and there is no evidence that the intent of the provision is to encourage union activity. Irrespective of what contractual benefits Respondent Union indicates its membership wants, our deference to parties' collective-bargaining agreements is limited by the boundaries of the Act. Dairylea, supra. Notwithstanding the parties' good intentions, the Act focuses on the effect of discrimination. The discriminatory effect of superseniority is well established and the parties do not dispute that truism. Union officials Denise Payne, the recording secretary, and Alice Travis, the financial secretarytreasurer, do not have any responsibilities requiring their on-the-job presence to further the administration of the collective-bargaining agreement. Specifically, Travis' responsibility for administering the dues withholding plan does not approach the level of responsibility we believe is necessary to help stabilize Respondents' labor relations. Other than her monthly meeting with the Company's financial officer, she need not be at the plant to satisfy her responsibilities as Respondent Union's financial secretary-treasurer. She would not be handicapped in effectuating her duties if she made a special trip to the plant for the sole purpose of meeting with the Company's financial officer. Thus, she gains no advantage, other than convenience, in being on the site continually. Similarly, none of the other duties of the financial secretary-treasurer. nor any of the duties of the recording secretary, involve on-thejob activities. Consequently, we find that, by maintaining and enforcing the superseniority clauses with respect to the financial secretary-treasurer and the recording secretary, Respondent Union has violated Section 8(b)(1)(A) and (2) of the Act, and Respondent DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company has violated Section 8(a)(1) and (3) of the Act. Furthermore, by according Denise Payne superseniority under the disputed clause with respect to layoffs on various dates including November 5 and 6, 1980, and thereby affecting employees who would not have been affected if the collective-bargaining agreement had not accorded the recording secretary superseniority, Respondent Company discriminated against employees in violation of Section 8(a)(3) and (1) of the Act, and Respondent Union thereby violated Section 8(b)(2) and (1)(A). THE REMEDY Having found that Respondents have engaged 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 clauses here in dispute are unlawful and we shall therefore order that Respondent Union cease and desist from maintaining and enforcing such clauses in its bargaining agreement with Respondent Company. We shall also order that Respondent Company cease and desist from maintaining 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, on or about November 5 and 6, 1980, who would not have been laid off but for the illegal discrimination depriving them of seniority. Consequently, we shall order that Respondent Company offer to reinstate any employees who would not have been laid off but for the unlawful assignment of superseniority to the recording secretary 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 the Respondent Company expunge 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 actions against them. Backpay shall be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as provided in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Also, in order to remedy in full the effects of the Respondents' unlawful conduct, Respondent Company's backpay obligation shall run from the effective date of the discrimination against 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 Company that it has no objection to the recall of unit employees affected by the unlawful grant of superseniority to union officers. 12 Finally, we shall order that Respondent Company cease and desist in any like or related manner from interfering 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. CONCLUSIONS OF LAW 1. Gulton Electro-Voice, Inc., is engaged in commerce within the meaning of Section 2(b) of the Act. 2. Respondent Union is a labor orgainzation within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a seniority clause in their collective-bargaining agreement according the Respondent Union's financial secretary-treasurer and recording secretary superseniority, Respondent Company and Respondent Union have engaged in, and are engaging in, unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act, respectively, and by discriminating against unit employees when Respondent Company laid off employees who would not have been affected if the collective-bargaining agreement had not accorded the recording secretary superseniority, the Respondents engaged in further violations of the foregoing sections of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Company, Gulton Electro-Voice, Inc., Buchanan, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining and enforcing collective-bargaining provisions with Respondent Union, Local 900, International Union of Electrical, Radio and Ma- 12 Member Jenkins would not terminate Respondent Union's backpay liability as of 5 days after it notifies Respondent Company that it has no objection to the recall of those affected by the unlawful seniority provision herein. After such notification, Member Jenkins would continue to hold Respondent Union secondarily liable for any additional backpay amounts. See his dissent in Harsh Investment Corporation d/b/a The Claremont Resort Hotel and Tennis Club, 260 NLRB 1088 (1982), and cases cited therein. GULTON ELECTRO-VOICE, INC. chine Workers, AFL-CIO-CLC, according the Union's financial secretary-treasurer and recording secretary superseniority. (b) Discriminating against any employees by laying them off instead of the Union's financial secretary-treasurer or recording secretary 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 exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Union make any unit employees 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 entitled "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. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, 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 superseniority as applied to the Union's recording secretary including the November 5 and 6, 1980, layoffs, 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 Buchanan, Michigan, copies of the attached notice marked "Appendix A. Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent Company's representative, shall be posted 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. Reasonable steps shall be taken by Respondent Company to ensure that such 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 7 for posting by Respondent Union. (g) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. Respondent Union, Local 900, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to those clauses in its collective-bargaining agreement with Respondent Company, Gulton Electro-Voice, Inc., according the Union's financial secretary-treasurer and recording secretary superseniority with respect to layoff and recall. (b) Causing or attempting to cause Respondent Company to discriminate against employees in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing the employees of Respondent Company in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Company make any unit employees 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 Decision entitled "The Remedy." (b) Notify Respondent company in writing that it has no objection to reinstating the affected unit employees who but for the unlawful assignment of superseniority would not have been laid off. (c) Post at its office and meeting halls used by or frequented by its members and employees it represents at Respondent Company's Buchanan, Michigan, facility copies of the attached notice marked "Appendix B."¹⁴ Copies of said notice, on forms provided by the Regional Director for Region 7, shall be posted by Respondent Union after being duly signed by Respondent Union's representative, immediately upon receipt thereof. The foregoing 13 In the event that 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." 14 See fn. 13, supra. DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice shall be maintained by Respondent Union for 60 consecutive days after posting in conspicuous places where notices to the above-described members and employees are customarily posted. Reasonable steps shall be taken by Respondent Union to ensure that the 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 7 for posting by Respondent Company. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. 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 Local 900, International Union of Electrical, Radio and Machine Workers, AFL-CIO- CLC, according the Union's recording secretary and financial secretary-treasurer superseniority with respect to layoff and recall. WE WILL NOT discriminate against any employees by laying them off instead of the Union's financial secretary-treasurer or recording secretary when such employees do not in fact have top seniority in terms of length of employment. 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 their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to those who were discriminatorily laid off instead of the Union's recording secretary. WE WILL expunge from our files any reference to the layoff of any employees affected by the superseniority as applied to the Union's recording secretary, including the November 5 and 6, 1980, 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 any unit employees whole for any loss of earnings they may have suffered as a result of the discrimination against them, with interest. GULTON ELECTRO-VOICE, INC. 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 Gulton Electro-Voice, Inc., according the recording secretary and financial secretarytreasurer superseniority with respect to layoff and recall. WE WILL NOT cause or attempt to cause Gulton Electro-Voice, Inc., to discriminate against any employees by requiring that the collective-bargaining agreement be enforced so as to lay them off instead of the recording secretary when the recording secretary does not in fact have top seniority in terms of length of employment. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights protected by Section 7 of the Act. WE WILL notify Gulton Electro-Voice, Inc., that we have no objection 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 Gulton Electro-Voice, Inc., make any unit employees whole for any loss of earnings they may have suffered as a result of the discrimination against them, with interest. LOCAL 900, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MA- CHINE WORKERS, AFL-CIO-CLC DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This consolidated case was heard in Niles, Michigan, on September 23, 1981, based on a complaint alleging maintenance of a superseniority provision for union officers contained in the collective-bargaining agreement be- GULTON ELECTRO-VOICE, INC. tween Gulton Electro-Voice, Inc. (herein called Respondent Employer), and Local 900, International Union of Electrical, Radio and Machine Workers, AFL-CIO- CLC (herein called Respondent Union), with its knowing implementation at various times late in 1980 which caused the recording secretary of Respondent Union to be retained in active employment with Respondent Employer, while employees with greater seniority were not retained but were laid off from work, and that by these acts Respondents assertedly thus violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act, respectively. Upon the entire record, my observation of witnesses, and consideration of post-hearing briefs filed only by the General Counsel and Respondent Union, I make the following: FINDINGS OF FACT AND RESULTANT CONCLUSIONS OF LAW A collective-bargaining relationship has existed between Respondents since 1951. It relates to a typical production and maintenance unit, in which numerous manufacturing classifications are grouped into 14 categories associated to an ascending hourly rate range for each group. This structuring is formalized in the labor contract, with a conception of "premium" job attached to most classifications of group two or higher for retention (layoff and recall by seniority) purposes, for shift bumping, and for the posting/bidding procedure upon job openings.¹ Seniority preference for union stewards and officers was established as early as 1956, and it was continued uneventfully until 1975. In that year seniority preference was eliminated for stewards, executive board membersat-large, trustees, and sergeants-at-arms. The 1975 change also narrowed scope of union seniority preference solely to layoff and recall, dropping the preexisting feature which had also applied to shift preference. A 3-year collective-bargaining agreement, effective from June 1978 to June 1981, embodied the subject of layoffs and its relationship to union superseniority in article-5 seniority and article-20 notice of proposed layoffs. These read, respectively and in part, as follows:² Article-5, Section 1. Layoffs. In all cases of permanent layoffs and rehiring, seniority and skill shall govern. When it becomes necessary to layoff em- 1 Respondent Employer maintains its principal office and place of business in Buchanan, Michigan, where it is engaged in the manufacture, nonretail sale and distribution of speakers, microphones, and related products, annually shipping such goods so valued in excess of $50,000 directly to points outside Michigan. On these admitted facts, I find it to be an employer within the meaning of Sec. 2(6) and (7) of the Act, and otherwise that Respondent Union is a labor organization within the meaning of Sec. 2(5). 2 The present collective-bargaining agreement was negotiated to completion in June 1981. It was agreed then to have a "moratorium," effective from May 21. 1981. on the application of such contractual seniority preference for incumbent recording secretary and financial secretarytreasurer pending case resolution. The focus of this case was limited by stipulation of the parties that a grant of superseniority to union officers concerned only current Recording Secretary Denise Payne and current Financial Secretary-Treasurer Alice Travis. ployees, the junior employees in point of service shall be laid off first, and the senior employees laid off last, except that ability and training to perform work shall be considered by Management and Union. When rehiring takes place, the senior employees shall be called back to work first, and the junior employees last, except that ability and training to perform work shall be considered. In the event of curtailed production, plant seniority will be the governing factor in moving employees off premium jobs except those not subject to posting. Article-20, Section 2. Notwithstanding the above provisions, Union officers shall be the last to be laid off and the first to be rehired, as far as practical, in operation of the plant in accordance to preference as listed below: 1. President 2. Vice-President 3. Chief Stewards 4. Negotiating Committee Members 5. Financial Secretary-Treasurer 6. Recording Secretary 7. Leave of Absence Committee Members Section 3. Such employees (in the seven (7) above named groups) shall not be able to exercise such super seniority for the purpose of bidding for a premium job; nor shall such superiority be exercised in the event of a reduction in force on a premium job. Dannie R. Williams is president of Respondent Union. His testimony, coupled with that of Respondent Employer's plant manager, James Tumbleson, provides an organizational, operational, and functional framework that constitutes essentially undisputed facts of this litigation. Production is currently achieved with about 250 employees normally spread over two shifts.³ The union office of vice president is now filled, while Richard Hadley has served as chief steward of the machine shop for 16 years. Hadley testified that since superseniority was detached from stewards in 1975 it is not a desired office, and this has resulted in unfilled positions for years. There are presently two stewards, which I take to be exclusive of Hadley himself. Respondent Union's constitution contemplates that the total number of stewards shall be determined internally, and that there are to be divisional chief stewards for the two major manufacturing departments on the first shift and a separate chief steward for the second shift. There is no indication of any person besides Hadley actually functioning now in the literal sense of a chief steward. The duties of this office are to preside over meetings of a stewards' council, enforce the contract, assist their department steward in emergency situa- 3 Of this total work force, approximately 140 are within the bargaining unit itself. A third-shift maintenance-building protection employee was mentioned inconsequentially. DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, respond to emergency calls from union members, evaluate the steward system, participate as a member of the negotiating committee, and maintain a file of all written grievances from which regular stewards can be kept informed on progress. The formal statement of duties for Respondent Union's recording secretary and financial secretary-treasurer are set forth in article IV, sections 4 and 5, of its constitution. Respectively, these read as follows: (A)-Keep all records of the meetings of the Local Union and Executive Board. (B)-Conduct all correspondence. (C)-Provide the Union (International) regularly with an up-to-date mailing list of the Local's members. (D)-Perform such other duties with the approval of the Local Executive Board as may be necessary for the proper and effective administration of the affairs of the Local. (E)-Send official notice in conjunction with the President to the Secretary-Treasurer of the Union informing him that the Local's books and records have been audited and stating the condition of the books and records. (A)-Receive, receipt and account for all money paid to the Local. (B)-Furnish all supplies pertaining to the Local. (C)-Pay all bills authorized by the Local. account of all Local expenditures. (E)-Deposit all money, as directed by the Local Executive Board, within five (5) business days of receipt. Account for all money deposited. (F)-Furnish a monthly financial report of the Local. (G)-Furnish a report on and payment for, per capita to the National office of the Union not later the 20th day of the month following the month in which dues are collected. (H)-Furnish a semi-annual report to the Union. (I)-Peform all such duties, with the approval of the Local Executive Board, as may be necessary for the proper and effective administration of the financial affairs of the Local. (J)-Sign checks in conjunction with the President or Vice-President. The constitution alludes several times to a negotiating committee, specifying that the local union president shall be its chairman and, as noted above, that chief stewards shall be among its members. In this same context it was further stipulated that on various dates in 1980, including November 5 and 6, there were layoffs affecting individuals who would not have been laid off but for the superseniority accruing to Payne, while as to Travis there has not been any actual effect on the bargaining unit stemming from her superseniority.4 The complaint in this consolidated case alleges that violations of the Act occurred because at all material times Respondents maintained and, in the manner just described, effectuated such superseniority provisions of a collective-bargaining agreement, even though the union duties of neither office in question "involve[d] the representation of unit employees in matters involving the administration of the contract or grievance processing." It is therefore necessary to consider actual duties of the incumbents, their relationship to institutional processes within the local union, and their role, if any, in fulfillment of the collective-bargaining relationship with Respondent Employer. Payne testified that her particular duties of office closely parallel those outlined in the local's constitution, adding that she is also responsible for posting all notices of action concerning Respondent Union on two inplant bulletin boards, and the reading of minutes, plus maintaining a record of attendance at both regular and executive board meetings. The posting function is often done in connection with union elections, where she announces those upcoming with details as to who are candidates, the date, time, and place of voting. Payne provides quarterly membership lists to the International Union, and handles correspondence to it if concerning an executive board member. She prepares documentation on internal union charges or trial matters, similarly informing the International of developments along with sending formal notifications to the member involved. She was not a participant on the negotiating committee, but did type up original proposals to be presented at the outset of contract negotiations.⁶ Otherwise, she has never processed 4 Charging Party William L. Schock did not originally allege such details, contending only in his unfair labor practice charges of February 23 and March 6, 1981, filed respectively against his employer and his collective-bargaining representative, that negotiating committee member Minnie Warren was improperly retained in employment through the exercise of contract superseniority while he, on November 5, 1980, was laid off. These charges were amended March 27, 1981, to challenge the superseniority advantage accorded the recording secretary and financial secretary-treasurer, adding to the alleged unlawful maintenance of such a contract provision that its discriminatory application with respect to Payne resulted in her "continu[ing] to work at a job in the plant" while higher seniority employees were laid off. At the hearing, counsel for the General Counsel adverted to a number of other layoffs which also occurred, saying they would not be identified further because resolution of a pure legal issue was really only at stake. 5 The executive board of Respondent Union is shown from its constitution to be the fundamental body performing "all the duties necessary to the proper administration of the affirs of the Local." The Local's elected officers of approximately a dozen persons constitute the executive board, and Williams testified that it is "the governing body" for activities of Respondent Union with involvement in setting meetings agenda, overseeing expenditures and property maintenance, determining election matters, and "tak[ing] care of all general business the local has in the administration area." He affirmed that both recording secretary and financial secretarytreasurer are fully functioning members of the executive board. 6 Williams had testified that the executive board set the opening time of contract renewal bargaining, and as a body drafted the letter appropriate to this purpose. Williams was drawn to concede that Payne drafted no letter to the employer once a course of contract negotiations was underway, nor did the executive board have any direct dealings regarding contract administration during its "day-to-day" life. The context for such testimony was Williams' uncontradicted assertion that the executive board involved itself to "a small extent" in contract negotiations by invoking the termination clause, holding special meetings if necessary, and Continued GULTON ELECTRO-VOICE, INC. employee grievances (nor met with management about them), involved herself with contract administration problems, nor substituted for the local union's president or vice president in such functions. Payne principally performs her union duties at home and without remuneration. On rare occasions she is compensated by Respondent Union for lost time absence from work necessitated by union business. This last happened in June 1981 when 3-1/2 hours were consumed typing contract proposals, and before that in March 1981 when she organized files and records at the union hall. Such reimbursement follows her appropriate marking to a timecard, and was also the basis of union-paid compensation when she recently relinquished an overtime stint to attend a union meeting for afternoon-shift employees. Travis' testimony also reflected the more numerous outlined for her office.⁷ An additional important responsibility is to assure completeness of the dues-check off program. She performs this working from a ledger book and cross-checking with Merle Judy, a payroll functionary of management, as to employees for whom this monthly deduction is to be made. The contact is accomplished in a brief few minutes around starting time once a month, at which Travis presents her list of affected employees and treats special cases of individuals who might owe a double amount in dues. She routinely deposits to a defense (strike) fund each month, maintains a petty cash amount to $25, and disburses weekly strike benefit payments should this arise as it once did briefly. Her duties also include making out checks for lost time on union business, plus annual reconciliation whereby diminished vacation pay because of union lost time is made up to a full amount by the local. Travis assists representatives of IUE District 8 in their quarterly audit of Respondent Union's books, as well as the more comprehensive annual one. She registers new employees, prepares union membership cards each year, issues withdrawal cards to persons leaving employment, and is the authority to confirm good standing of members for election eligibility requirements within the local. Travis prepares various governmentally required reports including LM-2 for the Federal Department of Labor, and W-2 statements on compensation paid to union members or officers which is in the nature of earned wages. She is also the officer taking care of property and worker's compensation insurance coverage. As with the recording secretary, Travis principally performs her union duties at home for which she is compensated by the local with 10 hours pay per month. She conceded having no "official role" in grievance processing or general contract administration other than concerning union dues, but emphasized in her testimony that as a known member of 38 years standing she is sometimes approached by employees with questions about the contract. As to such episodes she tends to refer all inquiries to the negotiating committee or an employundertaking internal discussion of legalities such as strike sanction. Beyond this, he conceded no involvement by the executive board in "actual negotiations." ee's steward, adding only that if she sees some little way to help the person she will do so. 7 The International Union's constitution specifies that an affiliated local union may combine offices, as done here with the more basic categories of financial secretary and treasurer. With respect to other categories granted superseniority under article 20, section 2, Williams testified that the negotiating committee did just that as to reaching collective-bargaining contracts and took positions for Respondent Union on "any modifications of the contract during its lifetime." He depicted the negotiating committee as an authoritative representative of any aggrieved in third step (C) grievance processing, plus a conciliation phase that follows, and the grooming of yet unresolved contract disputes for binding arbitration.⁸ Article 7 of the collective-bargaining agreement describes a committee composed equally of representatives from the parties as the body authorized to grant common leave of absence where requested in excess of 3 days. It is this group which Respondent Union's constitution must be taken to refer, when including the leave of absence function as among various committees to consist of no less than two members selected democratically within the local. Tumbleson alluded most directly to manifestation of the union side of this committee, by testifying that he periodically deals with them on the subject of leaves. Williams, however, was without knowledge of any instance in which the leave of absence committee member checked out of work as being on union business, for which compensating lost time payment would be made by Respondent Union. As a Dairylea⁹ case the General Counsel assesses these facts with summary contention that supplemental decision by the Board in The American Can Company, 244 NLRB 736 (1979), read in connection with apparent rationale of the United States Court of Appeals for the Third Circuit in Anna D'Amico V. N.L.R.B., 582 F.2d 820 (1978), requires a finding of unlawfully maintained and applied contract terms. 10 The Dairylea decision originated doctrine which was rooted in belief of a then Board majority that hypothetical employees of merit and ability would effectively exclude themselves from access to broad benefit preferences provided by a steward's superseniority clause, in the event they chose to refrain from espousing a belief in, and support for, union policy and goals. This struck the majority as evident from the "real world" in which simply a "rational" understanding of dynamics involved in a union's "continued well being and future vitality" (here countering words of the dissent) must lead to a conclusion that the "decisive part in access to [superseniority] benefits" is "committed 8 Williams responded to a question about the executive board's authority in determining how a grievance is processed, by terming that outcome as one which truly "will not be affected by the executive board." In further elaboration at this point of his testimony, Williams added that negotiating committee members are among those periodically checking out on union business, while meetings of the executive board take place at the union hall 1-1/2 miles distant from the plant after day-shift hours, and for which attendance of board members is ostensibly mandatory. 9 Dairylea Cooperative, Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (2d Cir. 1976). 10 General Counsel's brief states at fn. 4 that there is at least one financial trustee in the hierarchy. This is a misstatement of the record for at that point there was express denial of any person being "financial trustee," with testimony adding that only in a collective, not separate, capacity does the executive board even then monitor financial affairs. DECISIONS OF NATIONAL LABOR RELATIONS BOARD union[ism]." This, the majority found, in turn runs afoul of Section 7 rights allowing participation in, or foregoing from, union activities, and thus a breach of neutrality principles established early by the United States Supreme Court in its significant interpretation of the amended Act holding that an insulation must exist between job rights and benefits on one hand and union activities on the other. The Radio Officers' Union of the Commercial Telegraphers Union, A.F.L. [A. H. Bull Steamship Company] V. N.L.R.B., 347 U.S. 17 (1954). This controlling view applied only to contractual language establishing superseniority for stewards which was "not on [its] face" limited to advantage in matters of pure layoff and recall. In its 41st Annual Report for fiscal year 1976 the Board entered Dairylea under "decisional highlights," and made essentially the same description of its rationale in lay terms. Then Member Fanning dissented from Dairylea, and made several points in his accompanying opinion. One of these was rejecting the assumption that a union would reward "good" members by making them stewards, and that once mere conjecture is swept away both the apparent purpose and effect of such a superseniority clause was lawful. He also rejected as "factually unsupported" the majority's conclusion that a marginal encouragement of union membership or support was present, noting that membership was basically required anyway under the lawful union-security clause of Dairylea. Then Member Fanning believed that an agreement could create steward superseniority, even if not limited to job retention, to encourage or reward service as a steward and in recognition that it advanced interests of a bargaining unit. He argued that this distinction had been sanctioned by the Supreme Court in both Aeronautical Industrial District Lodge 727 V. Campbell, et al., 337 U.S. 521 (1949), and Ford Motor Company V. Huffman, 345 U.S. 330 (1953). His view of Campbell made it particularly troubling "unrealistic [or] odd" to accord less weight to the practices of collective bargaining in interpreting the very statute designed to encourage this process, than when determining a similar issue under the Selective Service Act. He believed further, as a policy matter, that performing as union steward was a "public service" in context of the National Labor Relations Act, and that from standpoints of precedent, logic, and proof the complaint should have been dismissed. In all subsequent cases involving "Dairylea and its progeny," this view of then Member (and later Chairman) Fanning was steadfastly advanced. By its answer to the complaint dated April 9, 1981, Respondent Employer pleaded insufficient knowledge and belief as to certain allegations, admitted various preliminary or self-evident matters, and denied standard conclusionary paragraphs of the complaint, plus that in which it was alleged that union duties of the recording secretary and the financial secretary-treasurer under challenge did not amount to "representation of unit employees in matters involving the administration of the contract or grievance processing." No statement of position was made on the record for this party at the outset or conclusion of hearing, and notwithstanding a stated "prefer[ence]" for filing a short brief this entitlement was not availed of during the period allowed. Respondent Union contends that the primary test for determining legality of seniority preference is whether the officers to whom it applies contribute significantly to "efficient administration of the Local Union." It is argued here that both the recording secretary and financial secretary-treasurer do, and analogy is drawn from the preamble to, and Titles IV and V of, the Labor Management Relations and Disclosure Act, in which congressional findings of essentiality are made as to "highest standards of responsibility and ethical conduct in administering the affairs of their organizations" applying to officials of labor unions, in which comprehensive provisions are set out for secret-ballot elections of local union officers, and in which a declared special fiduciary duty of union office-holders serves as a basis of forbidding embezzlement on pain of Federal prosecution. Alternatively, Respondent Union contends that in United Electrical, Radio and Machine Workers of America, Local 623 (Anna Mae D'Amico and Limpco Mfg., Inc.), 230 NLRB 406 (1977), the Board specifically approved seniority preference accorded a local union's recording secretary, where maintenance of meeting attendance records, handling union correspondence, and assistance to stewards in nongrievance matters were the only significant tasks of that office. Respondent Union terms Limpco "nearly identical" to the instant case on its facts as to the function of recording secretary, while here the duties of their financial secretary-treasurer demonstrate even more involvement in local union affairs. In this sense Limpco is read as not limiting the concept of contract administration to grievance processing or "steward-type" activity at the work place, and comfort in saying this is found in language to be quoted below. Respondent Union finds added support from Expedient Services, Inc., 231 NLRB 938 (1977), Otis Elevator Company, 231 NLRB 1128 (1977), and Allied Industrial Workers of America, AFL- CIO, and its Local No. 148 (Allen Testproducts Division, The Allen Group Inc.), 236 NLRB 1368 (1978), while the opinion in D'Amico is harmonized by observing how that court's insistence on appropriate justification of seniority preference was satisfied by the showing of numerous actual activities whereby a recording secretary, as here, furthered collective-bargaining interests of represented employees. Respondent Union meets American Can by noting that it dealt only with the offices of trustee and guard, was based on an evidentiary record in which duties and responsibilities of offices in question were apparently limited to official descriptions as found in the union's constitution, and that other officers enjoying contractual seniority preference, including a trustee, were not being challenged. From this Respondent Union argues that the majority opinion in American Can cannot be taken to suggest an overruling of Limpco, Expedient Services, Otis Elevator, or Allen Testproducts, and that facts of the instant case are more than adequate to maintain a presumptive lawfulness of seniority preference for layoff purposes.¹¹ 11 In itemizing the executive board's composition pursuant to art. IV Respondent Union's brief departs from the plural in its reference to chief steward(s) and sergeant(s)-at-arms. The implication from this is at odds Continued GULTON ELECTRO-VOICE, INC. This area of Board law is only dimly apparent as a result of treatment in major cases subsequent to Dairylea. A shifting composition of the Board and yet unspecified presentment of meaning to certain verbiage used in the decisional process are primary causes for uncertainty. Such, coupled with seemingly struggling efforts to refine the various rationales that have appeared, leaves some current mystery to the doctrine of Dairylea. It is necessary, however, to at least highlight the path taken from inception to American Can II as foundation to recommended decision here, and examine the real or apparent effect of related court cases. Dairylea was full-Board action by a majority comprising then Chairman Murphy, joined by Members Jenkins, Penello, and Kennedy, the last named of whom resigned the day after decision issued. In essence it reflected a value judgment that practically speaking an employee who never manifested even token support of their union in a labor-management setting would engage in self-disqualification for office holding, even if only largely ceremonial or ministerial in nature. The majority equated such disdain with the refraining entitlement of Section 7, and reasoned that no disadvantage should infuse job characteristics for such an inclination. Believing therefore that union officeholders could only be those who, contrarily, were exercising the opposite Section 7 entitlement, the majority held that except for such "incidental side effect" as priority to stewards in matters of layoff and recall might entail, the miscellaneous balance of wide ranging "on-the-job benefits" could not inure to union stewards merely because of their status (other than "particular circumstances" as might conceivably be present in a future case). The reasons for so holding were strictly based on the notion that encouragement of "continued presence of the steward on the job" fosters "the effective administration of bargaining agreements on the plant level," and thus results (redounds) in a condition beneficial to all employees in the bargaining unit covered by such contract. 12 The majority in Dairylea defined superseniority clauses not facially limited to layoff and recall as presumptively unlawful and, philosophy aside, assigned the burden of rebutting the presumption (i.e., establishing justification) on the party asserting legality. both with a literal reading of art. IV-sec. 1 and from related art. V itself in which, as treated above, a minimum of three chief stewards and minimum of two sergeants-at-arms are contemplated. I also read the date 1980 in fn. 1 of Respondent Union's brief as an evident inadvertence meaning 1981. 12 Campbell was footnoted in terms of such "legitimate statutory purpose" as was found by the majority, and it was further written in reference to Bethlehem Steel Company (Shipbuilding Division). 136 NLRB 1500 (1962), that the Board had recognized the relevance of Campbell's reasoning to proceedings under the Act. Bethlehem Steel was a supplemental decision of the Board, not itself, citing Campbell but holding on reconsideration that an employer had engaged in unlawful unilateral changes after termination of a labor contract when it "deprived union representatives of certain seniority rights and declined to process grievances as before The rights in question were those vesting certain employee representatives of the union involved with "top seniority rights." while the grievance procedure was one routinely expressing the purpose of accommodating "any matter which requires adjustment." The Board expressly tied both subjects to "wages (or "wage rate") term(s) and conditions of employment" within the meaning of Sec. 8(d). Following employer compliance in Dairylea the Board petitioned for enforcement only as to the union involved and this was readily granted. 13 Radio Officers seemed quite influential to the court as it was cited seven times, while the allocation of burdens of proof was approved noting that it would be "crippling" to the General Counsel to require "detailed specific evidence of the union's steward selection policies" in relation to superseniority clauses assertedly unlawfully encouraging union membership, when the union involved could readily defend by rebutting the reasonably drawn inference or otherwise justify the clause. Plain procedural background of the case caused the Court to note how the union had twice ignored the opportunity to attempt any rebuttal, and it expressed doubt as to legitimacy of a later abandoned contention that superseniority in particular regard to work route selection was justified on the basis that it encouraged service as a union steward and thereby attracted qualified persons to the post. The court adopted Dairylea's majority theme that only union devotees could expect reward with "the lucrative and desirable position of steward," and, given the union's unlimited discretion in selecting for the office of steward, it was likely that only such a loyalist would be chosen. It concluded by assessing the case as amounting to statutorily impermissible use of "job-related benefits to maintain [the Union's] own organization." Dairylea was first plumbed in cases decided during December 1976. Motion Picture Laboratory Technicians, Local 780 (McGregor-Werner, Inc.), 227 NLRB 558; Hospital Service Plan of New Jersey, 227 NLRB 585; Auto Warehousers, Inc., 227 NLRB 628. In McGregor-Werner the collective-bargaining agreement extended top seniority privileges to union stewards for purposes of layoff, recall and shift preference. As a threshold matter, the Board found the shift preference feature had never been implemented, was meaningless, inoperative and had been amended out by practice. For this fundamental reason Dairylea was held inapplicable and in any event the fact situation involved interplay of normal seniority standing and discretionary bumping privileges of the steward resulting only in a lateral, job retention-type movement, totally more neutral than the wide range of on-the-job benefits offered on a seniority basis to stewards in Dairylea. The Board noted further that all employees within the bargaining unit, union members and nonmembers alike (in a right-to-work state), elected the steward in contrast to the appointment procedure of Dairylea which 13 Sub nom. N.L.R.B. V. Milk Drivers & Dairy Employees, Local 338 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 531 F.2d 1162, 1165 (2d Cir. 1976). The court alluded extensively to the Board's expertise in the realm of private sector employment, and endorsed the inferences upon which Dairylea was based in terms of "expert knowledge of labor relations [and] appraisal of normal conditions in industrial establishments," as well as upon "common experience and common sense" when applied with reason and fairness. Such passages of the opinion called up language of the United States Supreme Court and other authorities on the point, adding in relevant observation that over a decade earlier the enforcing court had quoted these words with approval: The Board knows the facts of life in the labor world better than we can; we ought not upset its conclusion as to "encouragement" unless we can say this is without rational basis. [531 F.2d at 1165, fn. 5.] DECISIONS OF NATIONAL LABOR RELATIONS BOARD was totally within the discretion and control of the union. This led to dismissal of the complaint in McGregor-Werner, then Member Fanning concurring separately. Hospital Service Plan, issued the same day, was another tour through contract intricacies of a seniority clause, enlivened as it was with phraseology on "reduction in the office staff," "job deletion," "displaced employee," and a two-tiered retention placement mechanism, all in the context of superseniority to stewards "for layoff purposes only." Guided by McGregor-Werner the Board found the case to illustrate only a lateral bumping action which was clearly valid under precepts of Dairylea. Again a separate concurrence was written, alluding to reasons set forth in Dairylea's dissent. Auto Warehousers was the first relevant adjudication in which contract language, there existing since 1973, boldly expressed the superseniority of one steward acting at each of numerous truck terminals operated by the employer as applying "for all purposes." At issue was both maintenance of such a clause and whether there were specific instances of illegal implementation. The union was put to its burden of justification per Dairylea, and found not to have convincingly offered it. The plane of analysis was in terms of grievance handling realities in light of a bargaining history disclosing that the union had sought plenary job preferences for their stewards (appointed or, unless the union were to discontinue the alternative practice, designatable by election among the employees upon their petition to the union's business manager) to attract qualified candidates and to remunerate them for unpaid time spent in performance of union duties. The principal preference at issue applied to periodic job posting as to which the steward had last secured a 5 a.m.-1:30 p.m. slot "upon consideration of his family and himself (and feeling) he could better serve as union steward by getting off" at that early time. Superimposed on this was the additional benefit of first preference for various types of overtime, which had been exercised on occasion, primarily "for income to support his family." The majority of the same panel as deciding McGregor-Werner and Hospital Service Plan adopted reasoning that was not only faithful to Dairylea, but also noted substantial powers of authority and control over the steward suggesting application of the Court's observation in enforcing Dairylea that it is not unreasonable "to infer, absent evidence to the contrary, that the Union will, for so sensitive a post, take care not to select someone who has not demonstrated loyalty to the Union." N.L.R.B. V. Milk Drivers, supra at 1166. The Board was then called upon to decide whether an employer violated Section 8(a)(5) by unilaterally refusing to honor a contractual superseniority clause entitling union stewards to maintain their department or shift when they would otherwise be transferred. 14 In this instance a panel found the alleged unfair labor practice to be present, noting that in the posture of the case it was the General Counsel who had maintained the burden of establishing justification for a grant of presumptively illegal benefits going beyond strict layoff and recall. Union Carbide Corporation Chemical and Plastics Operations Division, 228 NLRB 1152 (1977). Here a configuration of contractual restrictions on stewards, and a union rule requiring stewards to forfeit stewardship if leaving their own jurisdiction, was sufficiently at odds with a policy call for continuity of representation as voiced in Milk Drivers and expressly so stated in Campbell. The panel's opinion concluded by saying that this continued presence on the job of the same steward was a permeating advantage "flowing to all employees," particularly where it was generally attempted to blanket each department with such a basic grievance handler. Consonant with Dairylca this objective was given controlling weight, even though "job-related benefits may accrue to stewards." Then Member Fanning joined the panel's decision, but found it unnecessary to distinguish Dairylea or deal with its presumption because he believed the contract preference at bar was lawful and the employer's admitted failure to enforce it plainly violated the Act. Then Chairman Murphy wrote a separate concurrence, stating in addition to her faith in Dairylea that she would find "presumptively lawful job retention superseniority clauses for union stewards or officers whose functions relate in general to furthering the bargaining relationship." She specified that job retention clauses would include "layoff, recall, shift assignment, or retention of the same job or same category of job during incumbency in such position," and analogized her extra remarks to Hospital Service Plan and McGregor-Werner. Inclusion of "[or] officers" was evident dictum, in view of what had been found as moot or academic in relation to them. 15 During June 1977 Board panels decided Chauffeurs, Teamsters and Helpers Local Union No. 633 of New Hampshire, et al. (Interstate Motor Freight System, Inc.), 230 NLRB 81, and W.R. Grace & Co. Construction Products Division, 230 NLRB 259, holding in each case that violation of the Act resulted from Teamster-spawned contract language granting steward superseniority "for all purposes." Neither case brought a requisite showing of justification for such sweeping privilege, with principal explications alluding only to the tendency to encourage individuals to serve as stewards, and that a lucrative daily delivery run obtained was overlaid with personal convenience to the particular steward, respectively. 16 Interstate Motor Freight footnoted its affirmance of the Administrative Law Judge's conclusions and adopting of his recommended Order by stating that the precise grounds of agreeing that an overly broad and hence unlawful 14 The case was handled upon stipulation between the parties, and from this the indication arose that while superseniority language guarded department or shift transfer (and layoff protection expressly under a separate subparagraph) of executive board members, other elected union officials and stewards, the particular contract section at issue "applied only to elected union stewards." 15 It should be remembered here that decision in McGregor-Werner was influenced by a showing that a portion of phraseology at issue was "meaningless, inoperative and amended out in practice." 16 This latter thrust is puzzlingly irreconcilable with Dairylea, for in that proceeding the majority pointedly footnoted that its decision "turns on the seniority preference accorded union stewards in seeking certain employment benefits and not on whether such benefits once acquired can necessarily be described in some objective sense as superior to the benefits a steward had but for his seniority preference." GULTON ELECTRO-VOICE, INC. clause was present rested on its grant of superseniority for all purposes, not merely those pertaining to job retention, including layoff and recall." In what was to become a familiar litany, then Member Murphy (having been replaced as Chairman effective April 14, 1977) repeated her further beliefs as concurrently separately stated in Union Carbide. Since, of course, then Chairman Fanning dissented, the principal portion of Interstate Motor Freight must be attributable to Member Penello, and it is here that disarray of thinking is first illustrated and the unraveling of Dairylea as a doctrine starts. The first portion of the Board's only footnote states flatly that unlawfulness arises only because the grant of superseniority exceeds purposes pertaining to "job retention, including layoff and recall." This suggests a broader concept than mere layoff and recall which might now not be unlawful per se, per Dairylea, for Union Carbide had just taught that maintenance of a steward's department or shift was an acceptable inroad on fundamental neutrality principles of Radio Officers, applied in light of Campbell. Yet the Administrative Law Judge in Interstate Motor Freight had dealt directly with "justification," so it must be recognized that a friction or sort of intellectual conflict exists between adopting his conclusions without treatment of justification matters on the one hand, and seeming negative sanction of Board footnote one on the other. The panel in Grace & Co. was Members Jenkins, Murphy, and Walther, the latter participating for the first time in a Dairylea case. Here decision was unanimous and short-form, save only for Member Murphy's expectable footnote. Following this, on June 23, 1977, the full Board decided Limpco, supra, with Members Jenkins and Penello dissenting. The majority brought Campbell to bear on a fact situation where the recording secretary of an amalgamated local was the only union officer working at the particular enterprise of approximately 38 employees. 17 This officer was accorded "highest seniority preference in regard to layoffs" (given capability of performing pertinent available work) under the contract. The thrust of Limpco was whether or not to now limit Dairylea to stewards, and the majority, conceding that "the issue of union officer superseniority was not specifically addressed" in Dairylea, believed that the seminal case "articulated what the appropriate objectives of such provisions were, in light of the legitimate statutory purpose of facilitating the effective administration of the collectivebargaining agreement on the plant level" and "was not intended to circumscribe which union representatives could be recipients of superseniority." The heart of the opinion reads: In this regard, we do not consider that the administration of the collective-bargaining agreement is limited solely to grievance processing or other "steward-type" duties performed at the workplace. What is at stake is the effective and efficient representation of employees by their collective-bargaining 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 president, is usually not involved in grievance proceedings. We shall not therefore presume, as did the Administrative Law Judge, that union officers, even though they may perform steward-type duties, are not as involved as stewards in the administration of the collective-bargaining agreement. On the contrary, we believe that, once it has been initially demonstrated that the official responsibilities of the union officer in question bear a direct relationship to the effective and efficient representation of unit employees, then this officer is entitled to the benefit of the same presumption afforded to union stewards. [230 NLRB at 407, 408.] From this the majority rejected a requirement that the union justify application of superseniority to the recording secretary in a layoff situation, and found it sufficient to show, as it had done, that she was qualifyingly entitled to the benefit "by reason of her role in the overall administration of the collective-bargaining agreement." The majority felt that a correct reading of Campbell, rather than narrowly construed as dissenting colleagues were believed to have done, could not yield the suggestion that superseniority might only be extended to individuals involved in the day-to-day handling and adjustment of grievances. Rather, it was seen that this was only "one way" of having effective collective bargaining, and Campbell could be interpreted as a tacit endorsement of the concept that "superseniority for purposes of job retention may properly be extended to those individuals whose official responsibilities bear a direct relationship to the effective and efficient representation of union employees." In context of this fact situation and perceived legal principles of controlling import, the majority concluded: It is evident that the official responsibilities of the recording secretary bear a direct relationship to the effective and efficient representation of unit employees 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 grievance 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 effectuation 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, 17 The location was also assigned a chief steward and three shop stewards, in accordance with settled representational distribution DECISIONS OF NATIONAL LABOR RELATIONS BOARD we shall dismiss the complaint in its entirety. [230 NLRB at 408.] The gigantic philosophical differences were fully reflected in the dissent, Members Jenkins and Penello deploring the linkage associated with boosting Local 623's maintenance of an "efficient and effective organization to conduct collective bargaining," and reading Campbell only to sanction on the job steward-type functioning where structured grievance procedure (as opposed to informal "assistance" to employees and stewards) has been carried out in furtherance of "the effective administration of bargaining agreements on the plant level." In the months following Limpco clumps of Dairylea cases continued to issue. Parker-Hannifin Corporation, 231 NLRB 884, was decided on August 30, 1977, and the day following, on which Member Walther's resignation was effective, Expedient Services and Otis Elevator appeared. The Parker-Hannifin case, as with McGregor- Werner and Hospital Service Plan, drew back from exploring the thicket of contract language on seniority, particularly where a quaint "step-down" notion was integrated into phraseology of how actual reductions in force would be energized. Parker-Hannifin took shape as a panel majority of Members Penello and Walther, with Member Jenkins dissenting. The dissent termed Parker- Hannifin "a complete departure from the principles laid down in Dairylea," by legitimatizing use of a superseniority clause triggered in course of a general layoff to prevent the union's committee chairman from being forced to take a lower paying job. Member Jenkins argued that a downgrading, with concurrent reduction in pay and protection of the employee with longer actual service, would not "in and of itself impede (a steward or committeeman) from performing his official duties." Ironically such competition pitted the shop chairman, "number one man" from the union's standpoint, against a plain committeeman and the eventual loser. Forcefulness of the dissent is rather understandable upon a close reading of Parker-Hannifin's majority opinion, for in several regards it struggles to show fidelity to Dairylea. This is seen in passages observing that "strict application of Dairylea, however, ignores the realities of collective-bargaining and the working relationship between employer and employees." The "difficulties in negotiating, drafting, and administering a collective-bargaining agreement" are noted, and from this it is seen that some "degree of flexibility, albeit limited, in the formulation of superseniority clauses" must be permitted. The panel majority "[drew] a line" in its belief that superseniority permitting a steward "to keep his particular job or classification and [which] protects him from downgrading is a reasonable means to achieve the permitted end of keeping him on the job." A summing up acknowledged "incidental" economic benefit to the steward, but would not label it "a new gain," as contrasted with mere maintenance of "status" (or near equivalence), and noted that in any event it was initiated not by the steward but by the employer's economic condition. The panel majority thus reasoned through to dismissal, finding the "head (of) the seniority list" provision for shop committeeman in Parker-Hannifin, and changes that flowed therefrom during business retrenchment, was a situation "legally equivalent" to what had been found lawful in McGregor- Werner and Hospital Service. The superseniority clause examined in Expedient Services (231 NLRB at 938) read: For the purpose of layoff, recall from layoff, and demotions, union stewards, chief stewards and principal officers (president, vice president, recording secretary, secretary-treasurer) will be deemed to hold the most seniority in service and classification seniority. A union steward, who simultaneously held office as recording secretary, chose not to exercise her "service" (length of employment from date of hire) seniority which would have resulted in her at least remaining "as a steward, on the same shift previously worked, and in the same work area." She had instead exercised "classification" (length of time holding a particular job classification) seniority in a reduction-in-force situation, which gave her retention superiority over the charging party who, notwithstanding greater natural service seniority (which have successfully broken a tie in actual classification seniority), was demoted to a different job. Against the General Counsel's first argument that this narrow fact situation unlawfully extended superseniority to "encompassing demotion determinations," a panel of Chairman Fanning, Members Murphy and Walther held otherwise. The situation was instead analogized to Hospital Service Plan, where lateral bumping had been validated as "in effect" insulating a steward from "demotion." As to "breadth of the beneficiary class" raised in the General Counsel's second contention, the Board drew on Limpco noting here that even were the dual function of steward and union officer to be divorced at a future time all officers were, pursuant to local union bylaws, exclusive attendees at regular monthly stewards meetings, requiring the inference that they thus provided guidance and instruction to the stewards. This, in turn, meant no affirmative showing had been made that functions of the union officers did not "relate in general to furthering the bargaining relationship." Such a conclusion fit Member Murphy's customary footnote, while Chairman Fanning separately concurred in light of his dissent in Dairylea and concurring position in Limpco. Otis Elevator (231 NLRB at 1128, fn. 1), decided by the full Board, is germane largely for its holding on the entitlement of a union officer to superseniority. The contract language in question read: Notwithstanding the provisions of [seniority in layoff procedures stewards, members of the grievance committee, negotiating committee, officers and other executive board members] shall be the last to be laid off and the first to be rehired provided they have the ability to handle the work available. 18 18 This language closely resembles art. 20 of the instant case, an understandable similarity because the union in Otis Elevator was also an IUE affiliate. GULTON ELECTRO-VOICE, INC. Facts of the case, one that arose from "massive layoffs" by the employer, dealt with representational realignments by which attrition reduced the total number of union officers. Those remaining assumed union duties formerly carried out by six department stewards. Additionally, various lateral bumping (and that to slightly lower jobs) ensued using the superseniority preference. This resulted in a final business operation of 35 employees (down from 144), with 14 union officers among them. The basic scramble was vindicated pursuant to Dairylea. Chairman Fanning and Member Murphy dropped appropriate footnotes, and the opinion noted that "voluntary elimina[tion]" of department stewards had allowed retention of five employees with greater seniority, which, even though derimental to the charging parties, was "beneficial to all other employees, as it insured the officers' continued presence on the scene to perform the stewards' duties." The Board favorably alluded to the Administrative Law Judge's finding of this as "a goodfaith effort to reduce the size of its representational force to a more realistic proportion of the total work force." On the issue of breadth for superseniority entitlement, the majority noted rejection in Limpco of the view that presumed validity could arise only when "the individual involved is processing or adjusting grievances at the workplace." Reminder was given of the "direct relationship to the effective and efficient representation of unit employees" theme, and that official capacities of union officers in Otis Elevator showed an entitlement to superseniority because "they contributed to the ability of the union to represent the unit efficiently and effectively." Members Jenkins and Penello vigorously dissented, and their words caused two further footnotes in the main opinion of intriguing thrust. The first of these cautioned against misapprehension of Limpco, which could lead to failure in recognizing that even a sergeant-at-arms, responsible merely for maintaining order at union meetings, was an ex officio member of the executive board and "therefore responsible for the administration of the Local, including the latter's collective bargaining agreement." (Emphasis supplied.)¹ The second footnote met the dissent's "unhappy but vivid illustration" of top-heavy unionism, by saying that the numerical configuration of union representatives to rank and file in the surviving bargaining unit "is not material, for it is the officers' role in the overall administration of the collective-bargaining agreement, and not the ratio of union representatives to unit employees, which entitles the officers to the benefit of the presumption." This particular point was consistent with a passage of the main opinion in which was said the General Counsel had failed to meet a burden of showing that 14 officers were not necessary in a 35-employee unit. In late 1977 Pattern Makers' Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL- CIO (Michigan Pattern Manufacturers Association), 233 NLRB 430, was decided by a panel of Members Jenkins, Penello, and Murphy. Here the labor organization had a longstanding practice of inserting its executive committee members, former business manager, and assistant business managers at the top of an out-of-work list used by an association of employers as their hiring source. The panel unanimously found a violation, noting several significant respects in which the fact situation differed from Dairylea. Chief among them was that the benefit conferred went substantially beyond mere job retention and granted an actual preference in hiring. This was the basis found for expressly distinguishing Limpco, and the preferential referral practice was otherwise found wholly devoid of justification. Pattern Makers was an aberation in the flow of Dairylea cases, which by this point in time had become the Board's Teamsters disease. The "for all purposes" language of Auto Warehousers was repeatedly litigated in cases based on Teamsters contracts, with decisions turning on now-familiar components of applying Dairylea. Thus Interstate Motor Freight, and Grace & Co. involved this, as noted above, while Perfection Automotive Products Corporation, 232 NLRB 690 (1977), General Drivers and Helpers Local Union No. 823 (Campbell "66" Express, Inc., et al.), 232 NLRB 851 (1977), Allied Supermarkets, Inc., 233 NLRB 535 (1977), Connecticut Limousine Service, Inc., 235 NLRB 1350 (1978), and Preston Trucking Company, Inc., 236 NLRB 464 (1978), were also decided on the point during 1977 and early 1978. 20 Another Teamsters experiment brought holding by the Board that payment of a contractually required extra 5 cents per hour to stewards was unlawful. The case is significant here because of language appearing in Chairman Fanning's dissent. After illustrating telephone calls, gasoline, and stationery as the type of expenses that a steward incurs, he wrote that extra compensation for such was a "reasonable and a just method of facilitating the administration of the collective-bargaining agreement by the parties." (Emphasis supplied.) International Brotherhood of Teamsters, Local No. 20 (Seaway Food Town, Inc.), 235 NLRB 1554 (1978). Other Teamsters cases variously went off on still different features, one of the latest dealing with contractual superseniority that embodied "such other employment preferences as may be useful in the performance of his duties as steward." Great Plains Beef Co., 241 NLRB 948 (1979); Capitol Trucking, Inc., 246 NLRB 135 (1979); Complete Auto Transit, 257 NLRB 20 Preston Trucking won enforcement sub nom. Teamsters Local 20, etc. V. N.L.R.B., 610 F.2d 991 (D.C. Cir. 1979). Here an argument was rejected that the Board was applying a "per se" rule as to "all purposes" superseniority clauses, noting that a "better reading" of the Board's opinion was to take it as establishing a presumption of illegality which could be rebutted by adequate justification. Alternatively, the court observed that in any event "all purposes" phraseology was vulnerable, in contrast to "tailor-made" benefits that would specifically assure greater accessibility by a steward to his workers. The court was further satisfied that the Board's expertise provided ample basis to conclude that an "all purposes" superseniority clause would necessarily create an impression upon employees "that can only have the effect of encouraging union activism." As to a second question presented by the appeal, the court believed that on facts of the case requisite justification was not shown in terms of grievance handling circumstances of the past. Granting that a contrary argument could be made, the court deferred to the Board's "expert knowledge of labor relations" and "its appraisal of normal conditions of industrial establishments" in regard to true necessity, or lack thereof, respecting the preference, citing N.L.R.B. V. Milk Drivers, supra at 1165, in this regard. 19 This was an avowing echo of the Administrative Law Judge's finding that under the constitution of this IUE Local 489 the executive board was "charged with administration of the local which obviously includes administration of the local's contract." (Emphasis supplied.) DECISIONS OF NATIONAL LABOR RELATIONS BOARD 630; and Liquid Carbonic Corporation, Inc., 257 NLRB 686 (the last two decided during August 1981). This was the general posture of Dairylea doctrine when on April 5, 1978, the Board issued its original decision in The American Can Company, 235 NLRB 704 (1978), holding that a certain superseniority provision of a collective-bargaining agreement was lawful on its face with the complaint asserting otherwise ordered dismissed in its entirety. This action was by a panel of Chairman Fanning and Members Penello and Truesdale, with Member Penello seconding his dissents in Limpco and Otis Elevator and Member Truesdale participating on the issue for the first time. The case arose from a national agreement between this giant manufacturer and the United Steelworkers of America. However, the only facility to which the case pertained was a small Colorado unit averaging 40 employee-members. A classic layoff and recall provision existed in the contract, with superseniority ("preferential seniority") to apply for a total of not more than 10 union officers and grievance committeemen. In the course of a year-long winding down and ultimate cessation of operations, persons holding union office as guard or trustee were favored in retention over others of greater actual seniority. The contract also specified that those to whom superseniority was to apply should be designated to the employer by the union in writing. When this was done the notification included only the union's president, treasurer, financial secretary, and chairman, each of whom was a member of a grievance committee authorized to have six persons. Those who had been the remaining two members of this committee, the union's vice president and recording secretary, waived their rights under the superseniority clause early in these happenings (although the Administrative Law Judge made passing reference in his Decision that the union had inexplicably failed to select these "higher ranking officers" in lieu of actual "retention and/or recall" (with company acquiescence) of two trustees and the guard). The local union's constitution described the duties of such office-holders as "to take charge of the door and see that no one enters who is not entitled to do so" and "to have charge of the hall and all property of the local union and perform such other duties as the local union may require," respectively. The panel majority found Limpco and Otis Elevator controlling, and wrote: A documentary description of officers' duties showing visible or direct impact by them on contract administration is insufficient evidence to overcome the presumption and to establish a violation 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 representing the unit. Thus. the parties to a collective-bargaining agreement do not have to justify applications of superseniority to union officers, but, in order to establish a violation, the General Counsel must prove that a particular application is invalid. We conclude that the General Counsel has failed to prove that the application of the superseniority provision of the collective-bargaining agreement herein is invalid under the Act. Accordingly, we shall dismiss the complaint in its entirety. [235 NLRB at 704, 705.] The Charging Parties filed a petition for review of this action with the Court of Appeals for the Tenth Circuit, and thereafter the Board announced it would move to withdraw the record before the court and obtain a remand to reconsider. This occurred and American Can issued on August 30, 1979, with an "aggregate majority" of the full Board holding that the superseniority provision at issue was in violation of the Act.2¹ Chairman Fanning wrote a heartfelt dissent arguing succinctly against the speculativeness of causation that he believed was a root fallacy in Dairylea. The aggregate main opinion of American Can II expressly stated that D'Amico had been considered in the Board's overall "reflection" on issues presented, and fully so in the particular context of previous Dairylea, Limpco, and Otis Elevator decisions. D'Amico in turn had dealt methodically with accommodation between the thrust of Dairylea and the fundamental principles of Radio Officers, casting this all in terms of Sections 7 and 8 of the Act and how one should be read in conjunction with the other. In its reasoning process the court quoted tellingly from Campbell, and further noted the related justification principles of N.L.R.B. V. Great Dane Trailers, Inc., 388 U.S. 26 (1967). What the court found evident from its analysis in D'Amico was: that the true rationale for validating a superseniority provision is found in the important function served by the recipient of superseniority in providing continuity of representation in carrying out the objectives of a collective bargaining agreement. Thus, those who, like union stewards, assist in resolving grievances on-the-spot are in a special way 21 A.P.A. Transport Corp., 239 NLRB 1407, decided on January 19, 1979, by a full Board, had also been expressly termed an "aggregate majority" as to its conclusion of law. This case represented the last major decision in a string of scrimmages overbroad-based use of a "for all purposes" steward seniority clause by many Teamsters locals. As an adjudication all that eventuated was holding via General Counsel's Motion for Summary Judgment that mere maintenance of the "all purposes" clause was unlawful, notwithstanding "factual evidence" as embodied in a regional director's partial dismissal letter legitimizing the "bidding" component of this clause and thus rebutting the presumption of illegality "to that extent." All participants in the majority, Members Jenkins, Penello, and Murphy, refined this view by footnotes, while Member Truesdale concurred only in part, noting his disagreement with thinking that the clause was necessarily presumptively invalid for "other, unspecified, purposes." (Emphasis supplied.) His separate opinion toured Great Dane, Radio Officers, and Local 357. Teamsters (Los Angeles-Seattle Motor Express) V. N.L.R.B., 356 U.S. 667 (1961), plus outlining the basis of a comprehensive analysis from "major private sector collective-bargaining agreements conducted by the Bureau of Labor Statistics' Office of Wages and Industrial Relations" from which he concluded that "stability in labor relations" would not be advanced by declaring that contracts providing superseniority rights for union representatives covering "a broader range of purposes" than only layoff and/recall were violative of the Act. Instead, he was constrained to find "that these practices of unions and management are not precluded by either policy or legal considerations to be found in the Act," and wrote further: Accordingly, I would find that the superseniority provisions here "for all purposes including layoff, rehire (treated between the parties as equivalent to the term 'recall'), bidding and job preference" fall within a "range of reason and good faith" and are presumptively lawful. Therefore, I would dismiss the complaint in its entirety. [244 NLRB at 740.] GULTON ELECTRO-VOICE, INC. fulfilling an essential purpose of collective bargaining, i.e., adjusting grievances at their source. [582 F.2d at 825.] Applying these thoughts to the situation of a recording secretary, as involved in D'Amico, the court obligated that union "to produce credible proof that the individual in question was officially assigned to duties which helped to implement the collective bargaining agreement in a meaningful way," adding that "[a]ny less rigid interpretation of the Board's ruling would leave substantial room to dilute the statutory neutrality principle without the requisite collective bargaining justification." From this the court was satisfied that requisite justification could not be found merely in official duties of the position as found in the constitution and bylaws of IUE Local 623,22 and in context of the following unchallenged evidence posed twin inquiries of whether activities performed by the recording secretary were at least implicitly within her official responsibilities, and whether they possessed a requisite substantiality: The record discloses that Jenkins, as recording secretary, was a member of the executive board and received $15 a month for her duties. She was the highest ranking union officer employed at Limpco. Jenkins was primarily responsible for maintaining records of membership and executive board meetings, presenting Limpco shop reports at those meetings when the chief steward was absent and handling all correspondence for Local 623. Jenkins, as well as the chief steward, posted notices of membership meetings, procured material needed by stewards, and aided stewards in obtaining reimbursement for their lost time on the job due to their union duties. Although the recording secretary had no official duties for handling grievances or participating on the bargaining committee, Local 623's president testified that Jenkins participated informally 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. [582 F.2d at 826.] While terming this recitation a "mixed bag," the court found at least several of the activities as qualifyingly 22 The bylaws read as follows: E. Duties of Recording Secretary: The Recording Secretary shall keep all records of the meetings of the Local Union 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 "furthering the collective bargaining interests of the bargining unit." These were, for example, participating informally in processing grievances, assisting stewards in resolving grievances, advising stewards and foremen on contract interpretation, attending meetings at a chief steward's request to help formulate bargaining ideas, and fulfilling logistics of a recent strike by scheduling pickets and handling their money. From this the court's conclusion was to hold that the union had sustained its "initial" burden of proof, resulting in a showing that on the record as a whole the Board's findings were supported by substantial evidence. The General Counsel contrasts D'Amico in arguing here that with only a showing of 10 minutes (or less) a month by Travis on the paperwork of dues income, and with Payne merely typing triennial contract proposals and posting union bulletins, it must be found that neither office-holder "[helps] to implement the collective bargaining agreement in a meaningful way," nor warrants accrual of superseniority because Respondent Union might receive support from their "general duties." The main opinion understatingly noted "widely divergent views" on Dairylea issues, yet reached a formal conclusion of law that the Steelworkers had violated Section 8(b)(1)(A) and (2) of the Act "by requesting the employer to retain or recall trustee Howard and guard Schneider under the superseniority provision of the applicable collective-bargaining agreement while senior employees holding superior contractual retention and recall rights were denied retention and recall inasmuch as the union duties of those officers do not involve the representation of unit employees in matters involving the administration of the agreement or grievance processing," and that American Can had violated Section 8(a)(1) and (3) "by complying with the above-described request Components of the aggregate majority reaching this supplemental decision were beliefs of Members Jenkins and Penello that union officers should not benefit from superseniority except when they also served as stewards or otherwise "engage[d] in administration of the contract at the place and during the hours of their employment," coupled with Member Murphy's view that she continued her adherence to Limpco but found here that the General Counsel had rebutted what to her was a presumption of lawfulness, by showing that the trustee and guard in question "are not engaged in contract administration." Member Murphy amplified by a separate concurrence, alluding to her earlier statement in Union Carbide that she would find presumptively lawful "those clauses giving job retention seniority-including layoff, recall, shift assignment, or retention of the same job or category of job during incumbency in such position-for union stewards and officers whose functions relate, in general, to furthering the bargaining relationship." She seemingly adopted the court's requirement in D'Amico obligating a union in circumstances such as this "to produce credible proof that the individual in question was officially assigned to duties which helped to implement the collective-bargaining agreement in a meaningful way." Summarizing these thoughts as "the burdens which must be satisfied," she concluded that the General Counsel had met DECISIONS OF NATIONAL LABOR RELATIONS BOARD his initial one of showing invalidity in application of the preference because neither officeholder's duties related "to the general furthering of the bargaining relationship," while the union had failed to establish the functions as relating to "general furthering of the bargaining relationship," as the burden shifted. Her separate concurrence ended with emphasis that the clause, while lawful on its face, was violative in application. The dissent of Chairman Fanning and Member Truesdale in American Can II marshaled every countervailing thought yet brought to bear on "the restrictions based on superseniority by Dairylea and its progeny." They wrote: 1. Superseniority benefits provided contractually for union stewards and officers served to benefit the union, the employer, and the employees. 2. Such remote and contingent benefits of superseniority associated with service as a steward or officer do not have any significant impact on whether an employee chooses to support a union. 3. The real effect of such provisions is to encourage and reward service as a union official, which not only does not adversely affect unit employees but on the contrary benefits all. 4. Superseniority rewards encourage quality representation in the actions of a union's officers and stewards, thus serving the interests of the labor-management parties and also all employees, both members and nonmembers. 5. Relatedly, superseniority for union officials serves the purpose of effective and efficient representation of unit employees by an incumbent union. 6. The quantitative grant of superseniority to union officers and grievance committeemen, and who contributed, in their official capacities, to the ability of the union to represent all unit employees effectively and efficiently, extended only to "a reasonable number." 7. A description of officers' duties showing no visible or direct impact by them on contract administration should not be deemed to rebut a presumption of lawfulness, nor should such evidence be used as a basis to "second-guess" a union's decision as to which officers aid the union in effectively representing the unit. 8. To do contrary would ignore the realities of bargaining and "often vital indirect impact on contract administration by apparently low-level officers," and create an impossible dilemma for an employer in trying to determine which union officials it could lawfully give superseniority. For these reasons the dissenters would find such "duly negotiated" provisions of a bargaining agreement were presumptively lawful provided, of course, that they meet the tests of "reasons and good faith," and would have dismissed the complaint in its entirety. Thus the prospect of successfully securing layoff and recall preference for typical office holders of a local union is last definitively treated in American Can II. Of the full Board participating there, only Members Fanning and Jenkins remain. Further, they represent the opposite poles of outlook on the question, with Member Fanning seeing no grounds to interfere with ordinary priority as the instant case presents, and Member Jenkins brooking no method of elevating grassroots service with a local union to the point that such a functionary could enjoy job-related advantage, other than in matters of layoff and recall, over those of higher seniority. The dissents in American Can II and Otis Elevator reflect this polarity on the subject. Therefore it might follow that the particularized remarks attributed to Member Murphy in American Can II are the tie-breaking, surviving, or best basis for how the Dairylea doctrine may be best apprehended in application to the present case. The problem in attempting this is that insufficient coherence attaches to the special amplifying comment made by Member Murphy, both as this comment originated in Union Carbide, and particularly as ostensibly resummarized in American Can II, where it simply cannot be reconciled with fundamentals of the collective-bargaining process and its place in the larger realm of labor-management relations. The overlay created by Member Murphy presumed to expand on the narrower presumption of lawfulness as originally cast in Dairylea. Thus she enlarged the scope of valid superseniority which could benefit both stewards and regular union officers, adding that this would obtain when their functions "relate, in general, to furthering the bargaining relationship." Aside from looseness of the phrase "in general," a pernicious fault is present because evident as it might otherwise seem, the phrase "bargaining relationship" in this context needs more precise definition. If it were to be explained only in terms of Union Carbide itself, that case was specifically addressed to contract administration, with the Board's main opinion supporting itself by alluding to greater substantive and procedural "familiar[ity]" of stewards with their contract, that this superior familiarity also extending to pending grievances or department operations, and that vacancy in a steward's office would lead to the undesirable condition of employees having to seek first level representation off a different department or shift. This matching of Member Murphy's special comment to the stipulated facts of Union Carbide handily side-steps the consequences of latent ambiguity in meaning as it was applied regularly and routinely to ordinary steward cases, to the Teamsters line of cases, and to Otis Elevator where the union officers at issue took over steward functions when the "massive layoff" eventuated. However an irrelevance is illustrated in Grace & Co., where the routine footnote bore no relationship to issues of superseniority preference whereby the steward there claimed a particularly more lucrative delivery route, comfortably drove a newly acquired truck every day, and hogged weekend overtime. A defect more extreme than irrelevance is shown in International Union United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and its Local 1331 (Chrysler Corporation), 228 NLRB 1446 (1977), where a variation of such amplifying comment stated that superseniority clauses benefiting union officers were presumptively lawful "during [their] incumbency in such positions." While Local 1331 (Chrysler) had involved shift and layoff preference, the priority assignment of "union stewards and committee persons" to overtime and weekend work was also at issue, yet no attempt was made to clarify whether footnote 4 of the GULTON ELECTRO-VOICE, INC. Board's decision considered these benefits also presumptively lawful. In any event this is all merely background to the peculiarities that arise from a reading of American Can II in this regard. Remembering that the American Can litigation focused on union officers only, and that there was absolutely no indication of their involvement in stewardtype functions on either a regular, occasional, or substitute basis, Member Murphy's separate concurrence is then analyzed. In this she reiterates her basic statement on the point, and seemingly adapts it to D'Amico. From this she proceeds to examine the respective burdens of proof, or of proceeding, and concludes that nothing in the duties of either union officeholder relates to general furthering of the bargaining relationship "as set forth by the Court." The problem is that the court did not write D'Amico in those quoted terms, but confined itself to fashioning a test based on meaningful implementation of "the collective-bargaining agreement." (Emphasis supplied.) And were this not enough to muddle whatever meaning was intended, the main aggregate opinion in American Can II purports to recapitulate the reflectedupon views of Dairylea issues by terming Member Murphy's outlook as keyed to "contract administration. "23 It cannot be gainsaid that a collective-bargaining relationship is a fundamentally different thing from a collective-bargaining agreement, including its administration. The former is a relational concept; typically rooted in Section 9 of the Act, but at least creating broad ramifications to the labor-management setting and for employees within the bargaining unit so established. Theoretically a collective-bargaining relationship could exist indefinitely without a labor contract, or even an attempt to secure one, and while this would be a most unusual situation it is true that even ordinarily substantial periods of time do arise where contracts are simply not in effect because customary negotiations have not produced one. The collective-bargaining agreement, on the other hand, is a definite contractual overlay to the collective-bargaining relationship, and aside from substantive and procedural features of enforceable character has some carryover beyond its term for reasons of policy. Livingston V. John Wiley & Sons, Inc., 376 U.S. 543 (1964); Newspaper Printing Corporation, 221 NLRB 811 (1975). The critical value of a collective-bargaining agreement to either party is its enforceability, and this is commonly seen under Sections 301 and 303 of the Act, or by binding arbitration of its terms. Boys Markets V. Clerks Union, 398 U.S. 235 (1970); Steelworkers Trilogy cases, 363 U.S. 574, etc. This distinction between the contract and the underlying relationship from which it arises, a relationship in which one party is most commonly an unincorporated association structured and governed along the lines of a fraternal organization. must constantly be in mind during attention to underlying considerations of whether, and to what extent, the special affinity of individuals to such an organization may lawfully advantage them over similarly situated, but unideologized, fellow employees. The instant case discloses that union officers Payne and Travis perform their various functions in orderly, diligent fashion, and do much to preserve the business and financial aspects of Respondent Union. Payne's role is wholly voluntary while Travis receives but token compensation for her numerous labors, yet each serves to solidify and perpetuate the local union that fulfills such a significant role in this employer's utilization of its production and maintenance work force. The bucolic setting in which this is all performed should not conceal that Respondent Union is also a fully functioning affiliate of a major international, having hundreds of such local bodies and membership totaling a quarter million persons. "Directory of National Unions and Employee Associations, 1979," United States Department of Labor, Bureau of Labor Statistics, page 27. Clearly a bargaining relationship is "further[ed]" by the undertakings of Payne and Travis, yet just as clearly they have no role whatsoever in contract administration or implementation, neither meaningfully nor otherwise. 24 On their past expressions Member Fanning would readily find this commendably lawful, and Member Jenkins would find that their insulation from contract disputes manifesting through the grievance procedure disqualifies them from lawful entitlement even to the limited form of layoff preference here involved. Former Member Murphy's view is incapable of application because of ambiguity, and in consequence Dairylea is shown to have deteriorated to nondoctrine with any lingering hope of discernment from American Can II utterly misplaced. Former Member Murphy's reasoning would, but for the difficulties noted, be entitled to attention and deference, as is the case with views of past Board Members Penello and Truesdale, each of whom participated in thoughtful manner as Dairylea evolved. Current Board Member Zimmerman is on record respecting Dairylea only via United Association of Journeymen, Plumbers and Steamfitters of Mobile, Alabama, Local 119 (Mobile Mech. Contr. Assn., Inc.), 255 NLRB 1056 (1981), Complete Auto Transit, 257 NLRB 630 (1981) and Liquid Carbonic Corporation, Inc., 257 NLRB 686 (1981). In the first of these the three-member Board unanimously adopted reasoning that a flat 75 cent-per-hour wage rate enrichment for stewards was realistically unlawfully available only to "a good, enthusiastic unionist," while the latter two cases each involved overreaching by a Teamster local in regard to steward superseniority. None of these decisions give any clue to Member Zimmerman's thinking on the more intricate concepts that obtain in cases dealing only with nongrievance handling union officers. What must be done instead is look to the policy fundamentals upon which Dairylea was based, and relate them to the present. Foremost in this regard is the guidance taken originally from Campbell. The opposing opinions in Dairylea each argued from Campbell, with the majority footnoting it in support of their clarion insistence that a steward's continued job presence to effectively further 23 On August 31. 1981. the Court of Appeals for the Tenth Circuit granted enforcement of American Can 11. 658 F.2d 746. The court found "no lack of clarity in the Board's opinion." but longed for the "nice[r]" alternative of being provided a "majority rationale" in the area 24 Travis' testimony that she comments empathetically when employees query her about matters at work is mere gratuitous, personal involvement. without significance to resolution of issues herein. DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract administration at the plant level is the only grounds on which to justify superseniority as a "redound[ing]" benefit to all unit employees, and Member Fanning finding it fully supportive of his diametrically opposite view that saw steward service as something to be both recognized (with preferences) and encouraged (to elicit "merit and ability" in aspirants). 25 There has been assiduous fidelity to Campbell from the outset as it is found cited or discussed in Union Carbide, Limpco, Otis Elevator, A.P.A. Transport, and is of pervasive influence in American Can 11.2⁶ Thus focus should skirt the American Can II conundrum, and look back to Campbell, its rationale and its era. I refer to "era" in light of opening passages of Campbell, where Justice Frankfurter was constrained to translate a simple contractual seniority provision stating that during their incumbency union chairmen "shall be deemed to have top seniority." He wrote that "[i]n plain English" this meant an entitlement "to be retained in case of layoffs regardless of their length of service in the plant." From this the opinion proceeded to note that "conventional" uses of the seniority concept in collective bargaining were quite varied and evolutional, characteristics which drafters of the Selective Training and Service Act of 1940 must have presupposed. In this context the Supreme Court interpreted "seniority" as used in the Selective Training and Service Act to mean the seniority standing otherwise resulting from job furlough either for military service or any other reason. It was thought that to restrictively forbid "changes in collective bargaining agreements which secure a fixed tenure for union chairmen" would be counter to the promotion of job rights and "smoother operation of labor-management relations." The "rights" involved were those of veterans and nonveterans alike, in securing "better working conditions through elected leaders not subject to the contingencies of a labor turnover." The opinion continued by presupposing, too, that a labor agreement under scrutiny reflected "honest desires for the protection of the interests of all members of the Union and is not a skillful device of hostility to verterans." Campbell does not disclose whether union membership was mandatory at the workplace, but the court made no distinction in this regard and seemingly assumed that a closed shop of all union employees was involved. A key component of the court's reasoning in Campbell was its analogizing to Fishgold V. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946), a decision treating fundamentals of seniority and job absence dynamics under 25 This was also the point at which Member Fanning equated a steward's functioning with "public service," finding this "undeniabl[y]" evident conclusion was further mandated by the Supreme Court in Huffman. 26 In Capitol Trucking, Inc., 246 NLRB 135 (1979), the Administrative Law Judge traced various fundamentals comprising "the mechanism of maintaining stable labor relations in the shop," and used Campbell as E point of reference in analyzing the role of a steward. This case actually turned on a steward appointment clause, and while Dairylea was also cited the more appealing precedent regarding methods of selecting and removing stewards was found in a separate line of cases culminating primarily in District Council No. 2 of the Brotherhood of Painters and Allied Trades. AFL-CIO (The Paintsmiths, Inc.), 239 NLRB 1378 (order vacated with directions, sub. nom. Paintsmiths. Inc. V. N.L.R.B., 620 F.2d 1326 (8th Cir. 1980)). the veteran's reemployment statute. It was held in Fishgold that carefully structured seniority systems should not be swept away simply because a seemingly ungrateful result occurred in the reassimilation of veterans by wartime industry. 27 This issue in Fishgold was a direct one. Where the layoff clause of a collective-bargaining agreement specified "length of service" as the controlling factor, could employees of "higher shop seniority" be preferred in retention (given work) over plaintiff, a veteran, whose lesser length of service was attributable solely to having been inducted into the army during a war year, and who was contending that the statutory prohibition against discharging a restored inductee within 1 year gave him job priority over all fellow employees except other veterans?28 Several collateral facets were also involved in the case, however when turned directly to the merits the court carefully reviewed employment concepts of "discharge," "lay-off," "furlough" and "leave of absence," holding in this regard that discharge from employment is not equatable with routine temporary layoff as a matter of "common [and] industrial parlance," and such collective-bargaining provision survived the claim of conflict with law. The Court prefaced this holding by an express determination to extend liberal construction to the verteran's reemployment legislation, and to assure by its decision that "agreements between employers and unions" not serve as any diminution to what the Selective Service Act had secured. From this the Court emphasized that restoration of a veteran involves conceptual exercise whereby a position of employment is reclaimed, yet not so as to artificially create an enriched seniority status when the military service must be considered furlough (or leave of absence) time by terms of the statute. In dealing with the essential point of how "service in the armed services is counted as service in the plant so that he does not lose ground by reason of his absence," the court pointed to the difference between discharge and furlough, concluding that had Congress desired to create rights whereby "no restored veteran, regardless of seniority, could be temporarily laid off during the year following his restoration, when the slackening of work required a reduction in forces," it would have used sufficiently descriptive words to clarify this intent. Since it was not done, the military service did not increase the veteran's shop se- 27 Judge L. Hand, writing the affirmed opinion in Fishgold V. Sullivan, 154 F.2d 785 (2d Cir. 1946), spoke of a country "deeply disturbed at its defenseless position," and that in retrospect the "appalling experiences [of young men called] to the colors" may appear an "altogether inadequate equivalent" for the reemployment privileges defined in the Selective Service Act. Trusting that the decision would not be taken as "indifference" to those most deserving, it was nonetheless thought that no "gain in seniority" should arise from military service when a collective-bargaining agreement gave preference over actual "shop seniority" in day-to-day retention during occasional layoffs for lack of available work. 28 This related to subpars. (a), (b), and (c) in sec. 8 of the Selective Training and Service Act, in which entitlements of reemployment following military service were set forth. The collective-bargaining agreement in Fishgold itself contemplated military service, and provided that any employee drafted into duty would "retain his seniority standing" as though "actually and continually employed." An arbitrator had first decided the controversy, ruling that the seniority provisions of the collective-bargaining agreement defeated plaintiff's claim and were not inconsistent with the veteran's preference statute. GULTON ELECTRO-VOICE, INC. niority as earned by those remaining in active employment, and he was thus subordinated as part of judicial construction supported in legislative history to the effect that existence of seniority systems and seniority rights were well recognized and not to be lightly swept 29 away. It is fairly thought that Dairylea takes its essence from Campbell; yet it is well to read Campbell in terms of Fishgold for the court pointed to this earlier decision as not permitting an employee on military furlough to be favored "as against his fellows," and thus subject to the steward priority concept which interposed while he was away. Thus Fishgold teaches that seniority is a malleable thing, and Campbell plainly exalts institutional unionism in its important passages on "a vast body of long-established controlling practices in the process of collective bargaining of which the seniority system is a part," the vital significance of continuity in office by union officials "for the effective functioning of collective bargaining," and the consequences of retaining them in active employment as "a due regard of union interests which embrace the system of seniority rights." These were the considerations found "decisive of the case," and as such the basis for accurately observing, as the majority opinion of Limpco did, that Campbell should not be too narrowly construed simply because the Court illustrated superseniority for grievance adjusters as merely "one way" of safeguarding or insuring effective collective bargaining. Given the healthy general thrust of Campbell, and definite reliance upon it in Dairylea, it is well to read D'Amico cautiously. While objectives and implementation of a "collective-bargaining agreement" were expressly referred to in D'Amico, the Court's full meaning is clouded when it illustrates among the qualifying justification for a recording secretary's preference that she helped formulate bargaining ideas in furtherance of "collective-bargaining interests of the bargaining unit." I would not, therefore, disagree with Respondent Union here when its brief argues that American Can II should not be taken as overruling Limpco, Otis Elevator, or Allen Testproducts, nor do I even believe that American Can II has particular vitality for the reasons outlined above. It is rather that guidance be taken from the fundamentals of Campbell, and from this reconstruct workable principles addressing what Dairylea sought to regulate. The collective-bargaining agreement in this sense should not be separated from the collective-bargaining relation- 29 Fishgold is in harmony with the later exercise in statutory construction found in Trailmobile Co., et al. V. Whirls, 331 U.S. 40 (1947), a decision which involved intricate explication by Justice Rutledge of apparent intent embodied in the war years' version of the Selective Training and Service Act's reemployment guarantees on the one hand. and a complicated fact situation on the other involving cannibalistic merger of corporations, ineffectual internal disputes resolution by the then American Federation of Labor (A.F. of L.), mass defection of employees to the Congress of Industrial Organizations (C.I.O.), National Labor Relations Board certification of the latter body as bargaining representative for a consolidated manufacturing unit of employees. and negotiation of a collective-bargaining agreement weighted against the claiming veteran (and others similarly situated) as to seniority dove-tailing, all in the context of whether "within one year" phraseology as to restoration in employment following military service was chronological or conceptual, the majority of the court holding it to be the former. See also Rudisill V. Chesapeake & O. Ry. Co., 167 F.2d 175 (4th Cir. 1948): Dwyer V. Crosby Co., 167 F.2d 567 (2d Cir. 1948). ship, nor should a union functionary's role be unentitled to layoff and recall preference merely because they serve broad institutional needs that do not require on-the-job presence at a work place. The fact remains that a recording secretary and financial secretary-treasurer, as here, are integral parts of what makes the labor union visible and effective. Without such responsible involvement there would only be drift, confusion and weakness. Efficacy is infused in the organization only because people such as Payne and Travis accept and perform roles that give structure, energy and continuity to the organization constituting one leg of the collective-bargaining relationship. Granted these clerical/accounting/administrative functions do not need job presence, but the countervailing reality is that without preferential ties to their employment the officeholders would not be expected to maintain a requisite level of dedication to the local union or thoroughness in accomplishing their particular portion of its affairs. In briefing the case Respondent Union has correctly, I believe, pointed to the Labor Management Relations and Disclosure Act, for this statute tends to support a liberality in making the limited sort of accommodations contemplated by Great Dane. Title V of LMRDA, defining fiduciary responsibility the breach of which is prosecutable, and found as 29 U.S.C. paragraph 501, reads: (a) The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members Notably this lumps officers and shop stewards together, and in one holding thereupon the failure to allege a fiduciary relationship in embezzlement prosecution was not invalid where the class of regulated union officials embraced all in key capacities, whether elected or appointed. Colella V. United States, 360 F.2d 792 (1st Cir. 1966). See also United States V. Harmon, 339 F.2d 354 (6th Cir. 1964). Furthermore the common participation of such key functionaries in policymaking by the labor organization, as here where all officers are members of Respondent Union's executive board, means that the potential influence on contract administration matters is real, albeit, indirect. In the scheme of things at a manufacturing work place it is infinitely more important to determine in closed session whether and how to take enforcement positions on contract language, than it is to be a scrivener of individual grievances on the shop floor 30 30 Extreme and unforeseen subtleties attach to the process of interpreting and applying collective-bargaining agreements. This fact created the engine of labor arbitration, and is constantly illustrated in the growing number of disputes that resolve, as germane here. even familiar terms such as "preference," "layoff," and "furlough." Proceedings of the Thirtythird Annual Meeting National Academy of Arbitrators, pp. 331-373 (the Bureau of National Affairs, Inc. 1980); International Minerals & Chemical Corp., 36 LA 92 (P. Sanders): International Paper Co., 60 LA 447 (R. Ray); Texas International Airlines, Inc., 68 LA 244 (System Board of Adjustment). See also H. Davey, "Contemporary Collective Bargaining," Third Edition, pp. 228-236 (Prentice-Hall, Inc., 1972). DECISIONS OF NATIONAL LABOR RELATIONS BOARD The test for valid superseniority preference in layoff and recall should currently reflect components of the dissent in American Can 11, where no grievance involvement by the officer is shown. A contractual grant of superseniority for layoff and recall only should be allowed in recognition (but not as an "encourage[ment] or reward") of such service and because it reflects the special position possessed by union officials in relation to collective bargaining that benefits the whole membership of a bargaining unit. Additionally, a requirement of reason and good faith should attach, and I would not assert this means anything beyond "honest desires not a skillful device of hostility" which the Court in Campbell related to veterans and which in current context may be equally related to refrainers under Section 7 of the National Labor Relations Act. It is seen from Otis Elevator that a two/three ratio of priority-infused representatives to the total work complement was not excessive, and the test of good faith would presumably arise when two members of a three person bargaining unit contractually constitute themselves in preferential seniority higher than a naturally longer-serviced third person happening to disdain unionism. For now it is enough to observe that Respondent Union's ratio of representation is well restrained, that a cut-back of its breadth occurred fairly recently, and that good faith functioning for the benefit of all Respondent Employer's employees is singularly shown from the union duties performed in fulfilling these offices of recording secretary and financial secretary-treasurer. Accordingly, I render a conclusion of law that Respondents have not violated the Act as alleged. [Recommended Order for dismissal omitted from publication.]