Laborers Local 380 (Mautz & Oren)

LABORERS LOCAL 380 (MAUTZ & OREN) Laborers Local Union No. 380 affiliated with Labor- ers International Union of North America, AFL-CIO (Mautz & Oren, Inc.) and The Asso- ciated General Contractors of Illinois Southern Illinois Laborers District Council , Labor- ers International Union of North America, AFL-CIO (Mautz & Oren, Inc.) and The Asso- ciated General Contractors of Illinois. Cases -14-CB-6118-1 and 14-CB-6118-2 12 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 25 March 1985 Administrative Law Judge Elbert D. Gadsden issued the attached decision. The Respondents and the General Counsel filed ex- ceptions and supporting briefs. ' The National Labor Relations-Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has 'decided to affirm the judge's rulings,' findings, and conclusions, but to substitute the attached Order for that recommend- ed by the judge. i ORDER The National Labor Relations Board orders that Respondent, Laborers Local Union No. 380, affili- ated with Laborers International Union of North America, AFL-CIO, Marion, Illinois, and Re- spondent Southern Illinois Laborers District Coun- cil, Laborers International Union of North Amer- ica,- West 'Frankfort, Illinois, their officers, 'agents, and representatives, shall 1. Cease and desist from (a) Maintaining,- enforcing,., or otherwise giving effect to those clauses in their collective-bargaining agreement with Mautz & Oren, Inc. and the Asso- ciated General Contractors of Illinois according i We agree with the judge that the supersenwrity clause at issue here is, invalid under Dairylea Cooperative, 219 NLRB 656 (1975), enfd sub nom NLRB v • Teamsters Local 338, 531 F 2d 1162 (2d Cir 1976) See also Gulton Electro-Voice, 266 NLRB 406 (1983) However, we find the judge's recommended Order deficient in several respects Thus, in accord with our established practice we shall order the Respondents to cease and desist from maintaining or enforcing the invalid clause Gulton, supra In addition , we shall not direct the Respondents to mail copies of the at- tached notice to members to all of their members In our view, the tradi- tional posting requirements are sufficient Id The judge's legal conclusion that the Respondent violates Sec 8(b)(3), which was not alleged , appears inadvertently, and we do not adopt it In the absence of exceptions, Member Hunter finds it unnecessary to pass on the judge's discussion of the criteria for deferring to an arbitra- tion award set out in Olin Corp, 268 NLRB 573 (1984) Also, in the ab- sence of exceptions, Member Hunter finds it unnecessary to pass on the judge's discussion of the time -limitations proviso to Sec 10(b) insofar as the judge reasons that the time is measured from the date of the unfair labor practice to the date of the filing of the complaint, rather than the charge 1049 union stewards superseniority with, respect to the assignment of overtime work on Saturdays, Sun- days, or holidays. (b) Causing or attempting to cause Mautz & Oren, Inc. or the Associated General -Contractors of Illinois to discriminate. against employees in vio- lation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing employees- in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Refund to Mautz & Oren, Inc. any money it may have paid to Walter Kelly for overtime work on Saturday, 14 September 1984. (b) Post at their business offices and hiring and meeting halls in Marion and West Frankfurt, Illi- nois, copies of the attached notice marked "Appen- dix."2 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondents' authorized representa- tives, shall be posted by the Respondents immedi- ately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (c) Sign and return-to the Regional Director suf- ficient copies of the notice for posting by Mautz & Oren, Inc., if willing, at all places where notices to employees are customarily posted. (d) Notify the Regional Director in writing within 20 days, from the date of this Order what steps the Respondent has taken to comply. 2 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " .APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF-THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide.by this notice. WE WILL NOT maintain, enforce, or otherwise give effect to those clauses in our collective-bar- gaining agreement with Mautz & Oren , Inc. and the Associated General Contractors of Illinois ac- 275 NLRB No. 147 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording union stewards superseniority-with respect to the assignment of overtime work on Saturdays, Sundays, or holidays. • WE WILL NOT cause or attempt to'cause Mautz & Oren, Inc: or the Associated General Contrac- tors of Illinois to discriminate against employees in violation of Section 8(a)(3) of the Act. WE WILL NOT in any -like or -related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. - WE WILL refund to Mautz &• Oren, Inc. any money it may have paid Walter Kelly for overtime work on Saturday; 14 September 1984.' - LABORERS L' OCAL UNION No. 380, AFFILIATED WITH LABORERS INTER- - NATIONAL- UNION OF NORTH AMER- ICA,-AFL-CIO SOUTHERN ILLINOIS LABORERS,'DIS- TRICT COUNCIL, LABORERS INTERNA- TIONAL UNION OF NORTH AMERICA, AFL-CIO - DECISION - STATEMENT OF THE CASE ELBERT D GADSDEN, Administrative Law Judge. Unfair labor practice charges were filed -on January -16, 1984, by the Associated. General Contractors of Illinois (AGC) against,Laborers-Local Uhion'No. 380, affiliated with Laborers. International Union of North America, AFL-CIO (Local- 380) and Southern Illinois Laborers District Council, Laborers International Union of. North America, AFL-CIO (collectively Respondents). On behalf of the General Counsel,' the Regional Director for Region . 14, pursuant to Section .10(b)-of the Act and "Sec- tion 102.15 of the Board's Rules and Regulations; Series 8,, consolidated the cases and issued a complaint on March 16, 1984. „ . It is alleged in , the complaint that Respondents have attempted to cause the Employer (Mautz.& Oren,- Inc) to discriminate against certain of its - employees, by at- tempting to apply and enforce-a grievance procedure in the contract, to prevent ,the 'Employer -from assigning weekend overtime work to one of 'its-employees, instead of to another one of its employees, who:had been desig- nated union steward, .and claimed. to, have had supersen- iority by Respondents, in violation, of Section 8(b)(1)(A) of the Act; and by attempting! to require cEmployer,'-to pay the steward -designee, -in violation : of Section, 8(a)(3) of the Act.. - . i' - I ""- L Respondents filed an answer on March 20, 1984, deny- ing that they have engaged,ih unfair labor practices' as alleged in the complaint. . ' . The hearing in-the above matter was held before me in St. Louis, Missouri, on June 4, 1984. Briefs have been re- ceived from the General Counsel and counsel for Re- spondents, respectively, which have been carefully con- sidered.-.. - 1 On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION The Employer, at all times material herein, has main- tained its principal office and place of business at 406 W. Jefferson, Effingham, Illinois, where It: 'isengaged in business as a construction contractor for the construction of highways and bridges. During the calendar year ending December 31, -1983, a representative period, the Employer, in- the course and conduct of its business operations, purchased and caused to be transported and delivered to its Effingham, Illinois place of business, and at its construction sites located within the State of Illinois, goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in Effingham, Illinois, or its construc- tion sites located within the State of Illinois, directly from-points located outside the State of Illinois.' The complaint alleges,' the answer admits, and I find that Employer is an employer engaged in 'commerce within' the meaning of Section -2(6) and (7) of the Act. II.'THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Local 380 and Laborers District Council (LDC) are, and have been at, all times material, labor organizations within the meaning of Section 2(5) of the Act. III., THE ALLEGED UNFAIR LABOR PRACTICE A. Background.Information The Employer, Mautz & Oren, Inc., at all times mate- rial, has-been-engaged in business as•a construction con- tractor of highways and-bridges: In the instant case, the Employer was engaged in 'a bridge construction `project located at Blairsville, Illinois. In carrying out its business operations, the Employer- employs members of various trades and crafts. Some of-the Employer's employees are members of Respondents, the Laborers District' Council, and Local 380. The Employer ,has authorized Associated General Contract_oi-s of Illinois'-to act as its collective- bargaining agent in' dealing' with the laborers representa- tives^ ^ • ' - .' ' At all times material herein, the persons' named below have occupied the` positions set opposite their respective names and' are agents ,of Respondents, acting on their betialf_'vvithin'the meaning o f: Section 2(13). of the Act: Larry `Skelcher,` business manager, Local 380; Walter Kelly, Laborers steward; Carl Moore, business' manager, Laborers District Council: i -.'B. The' Contractudl Work Jurisdic'tion 'Dispute- - In operating its highway and bridge construction-busi-' ness, the Employer (Mautz &- Oren, Inc.)'employs sever- The undisputed facts set forth above are not in conflict in the record LABORERS LOCAL 380 (MAUTZ & OREN) 1051 al employees specialized in various , trades and crafts to perform the necessary work. About August 15, 1982, AGC of Illinois, on behalf of the Employer, entered into a contract with Respondents, representatives of its em- ployees. The contract is effective by its terms from August 15, 1982, to August 14, 1985. Since September 24, 1983, the parties have maintained an agreement which, in pertinent part, provides as follows: Article 23 _ Section 1 : Business Manager and Steward The business manager shall have the right to visit all jobs in the performance of his duties to the Union, shall appoint the steward , and shall notify the contractor who the steward is. The steward shall have seniority on all operations requiring laborers except daily overtime, provided the steward is avail- able. Insofar as practical, the contractor shall divide overtime equally among all employees. The Employer • commenced reconstruction of the bridge in Blairsville, Illinois, about August 8, 1983. In late September 1983, the Employer was erecting a tem- porary bridge structure to provide an alternate detour for traffic in route across the bridge Members of other labor organizations were also employed on the job. Steward Walter Kelly was the laborers' steward assigned on the project. Brian Neimeyer was superintendent on the project and responsible for determining when over- time work was to be performed, and who was to per- form it . Overtime work is generally performed on regu- lar workweek days, but occasionally it is performed on Saturday. Neimeyer testified , without dispute, that in de- termining who will be assigned overtime work he at- tempts to do so in compliance with article 10 of the col- lective-bargaining agreement , and the above-quoted arti- cle 23, "insofar as practical, the contractor shall divide overtime equally among all employees." Neimeyer stated that he generally assigns overtime work to the individual who is performing the work to be continued on over- time. On the afternoon of Thursday, September 22, 1983, Neimeyer decided overtime work was necessary, and he told Laborers Steward Walter Kelly he had. decided to work a couple of hours overtime . Kelly said someone else could have the work because he had to go home, and he would not be at work the` next day (Friday, Sep- tember 23). Laborer Norman Carney worked overtime that afternoon. On Friday, September 23, Superintendent Neimeyer was concerned about rain and decided that it would be necessary to have additional overtime work on Saturday, September 24. Steward Kelly was not at work that day so Neimeyer designated Ivan Bruce Colclasure to work on Saturday, September 24. Colclasure worked 8 hours on Saturday and there were no other Laborers stewards on the job that day or the previous day, Friday, Septem- ber 23. On the next workday, Monday, September 26, Larry Skelcher, business representative for Local 380 told Su- perintendent Neimeyer, in the presence of steward Kelly, "I think you owe Walter 8 hours pay for working Satur- day" (September 24, 1983). Neimeyer asked Skelcher to show him in the book where he had to pay Kelly. Skelcher showed him article 23 of the current collective- bargaining agreement (G.C. Exh. 2). After reading it, Neimeyer told Skelcher he did not see where article 23 directed him to pay Kelly 8 hours' overtime. Skelcher returned to the project site a day or two later with Carl Moore, District Council representative. They met with Superintendent Neimeyer and renewed the demand that the Employer pay Steward Kelly' 8 hours' pay for the overtime worked the previous Saturday Nei- meyer reiterated that he did not believe he was required to pay Steward-Kelly and he referred the grievance to William Arnold, secretary-treasurer and manager of the Employer. Manager Arnold referred the grievance to Lawent of Associated General Contractors, the collec- tive-bargaining representative of Employer In a letter dated October 17, 1983, AGC Representa- tive Lawent was notified by LDC's Carl Moore, that the LDC was ready to meet on the Walter Kelly grievance. The letter stated, in part, as follows: The grievance stems from working the key laborers on Saturday,' September 24, 1983, without the labor- ers steward being asked to work, or being present on the job. Under our current agreement, the labor- ers steward has seniority on all operations except daily overtime. We do not consider, Saturday as daily overtime. On November 4, AGC's Lawent, the Employer's Mr. Arnold, Superintendent •Neimeyer, Local 380's Skelcher, and LDC's Carl Moore met •to discuss the- grievance. The LDC maintained that Saturday overtie was not considered daily overtime work, and that the steward should be,paid for the.time. About December 1983, • AGC's • Lawent informed LDC's Moore that he was of the view that article 23, section -1 of the collective-bargaining agreement between the parties was illegal. Respondents argued in the arbitration and the instant proceeding that daily overtime under article 23 of the collective-bargaining-- agreement means overtime per- formed on regular workdays,' Monday through Friday, excluding Saturdays, Sundays, and. holidays, and that "Saturday," not being a -regular weekday, overtime work does not preclude stewards from having the priority for such work by virtue` of their seniority as provided under article 23 of - the • agreement: - The Employer argued during the arbitration and 'the- instant- prbceeding that ac- cording to the Board's decision in Teamsters ' Local 338 (Dairylea 'Cooperative)," 219' NLRB 656' (1975), enfd sub nom. NLRB -v. Teamsters Local 338,•'531 F.2d 1162 (2d Cir. 1976), the superseniority clause in article 23 is un- lawful. 'i More specifically :the, parties argued, respectively, as follows. Respondents maintain), that article 23,'section 1 pro- vides superseniority for stewards on the jobsite in order to try to assure the presence of a steward on the job every day to protect the work jurisdiction, safety, and contract rights of laborer employees, and that Steward 1052 DECISIONS OF NATIONAL LABOR.RELATIONS BOARD Walter Kelly was available for work on Saturday, Sep- tember 24, 1983, but the Employer did not contact him to assign overtime work on that date, in violation of the superseniority clause in article 23 Employer maintains-that article 23 is excessively broad and is presumptively void under the National Labor Re- lations Act; and that Steward Kelly was -absent from work on Friday, September 22, 1983, and was not avail- able for work on Saturday, September 23, which work fell within the exception (daily overtime). In disposing of the issues raised by the evidence and the-respective arguments of Respondents and the Em- ployer, the arbitrator first concluded that his (arbitrator) jurisdictional authority is derived from the contract to make findings as they pertain to contract disputes, and-to interpret and apply the terms of the contract according- ly. Such jurisdictional authority he wrote, does not permit him to interpret and apply external law, and espe- cially the National Labor Relations Act. Thus in inter- preting article 23 of the collective-bargaining agreement between the parties, the arbitrator stated as follows:- The critical language of Article 23, Section 1, is contained in the second sentence which provides: - "The steward shall have seniority - on all oper- ations requiring labor except ( 1) daily 'overtime, (2) provided the steward is available." -[Emphasis and parenthetical numbers added.] • - On its face this language is plain and unambig- uous. The steward is mandated to have seniority on .,all operations"- subject only to one exception and one condition The term "all operations" is patently inclusive. Moreover, under the rule of construction, expressio unius est exclucio alterius, to express one thing is to exclude another, the rule is usually held to mean that where the parties expressly stated cer- tain exceptions, no other exceptions are intended 'A. 0. Smith Corp., 47 LA 654; Mode Craft Co., 44 LA 1045. Thus, when the parties stated only one excep- tion and one condition to the steward having se- niority on "all operations," the parties apparently intended that there be no other exceptions or condi- tions to the mandate of the rule The arbitrator found that the language "stewards shall have seniority on 'all operations' requiring labor except daily overtime, provided the steward is available," means that stewards shall have priority for any overtime work- performed on Saturday, Sunday, or a holiday because "daily overtime" means overtime' work performed after regular working hours Monday through Friday; that the' object of the "all' operations" language represents an effort by the parties to assure the presence of a steward on the job on every working day-to protect the'w'ork ju ' risdiction, safety, and job rights of employees in compli-' ance with the contract; and that since a steward is nor- mally on the job daily he need not be present or granted "daily overtime" -for-the few hours laborers may -work overtime on days other than holidays and weekends. The arbitrator further found that the language, "pro- vided the steward is available," is simply a condition on the stewards seniority right to overtime on all operations (Saturdays, Sundays, or holidays), and it is the only con- dition on which such overtime work may -be- assigned to a nonsteward laborer if the steward is absent. The con- tract does not provide that- a steward must have worked all weekdays prior to the "all operations" day on which overtime work is performed in order to entitle him to overtime work. Nor does the contract provide for an al- ternate replacement of the steward in his absence. Thus availability of the steward means whether or not he-was available for work during the hours of work involved, that he is accessible by the exercise of reasonable effort of the employer to notify him about such overtime work. The arbitrator also found that Steward Kelly was available and accessible for work on Saturday, Septem- ber 24, and that the Employer had not made any effort ,to contact, notify, or order him to work on that date In applying his construction of article 23 to his factual find- ings, the arbitrator sustained the grievance and directed the Employer to pay Steward Walter Kelly for work on Saturday, September 24, 1983, at time and one-half rates. However, in declining to address and resolve-the Em- ployer's argument that article-23 is excessively broad and therefore presumptively void, the arbitrator decided he did not have authority to interpret and apply the Act, but that authority to do so was granted to the National Labor Relations Board by the Congress. Even in cases where the Board defers to the arbitrator, which cases do not generally involve a dispute of external law, the arbi- trator held that the arbitrator's authority is derived from the deferral of the Board, and not from the contract be- tween the parties. Analysis and Conclusions The issues presented for determination are: 1 The legal appropriateness of the Board's .deferral to the arbitrator's award 2.. Whether article 25, section 1 of the collective-bar- gaining agreement between the parties' is repugnant to the Act and invalid, as the' 'Employer contends. In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board held that it would defer- exercising its jurisdiction - to an arbitrator's award whenever the following criteria are established: - 1. The proceedings appear to have been fair , and regu- lar. 2. All parties have agreed to be bound - by the arbitra- tor's .award. . 3. The decision of the arbitrator is not clearly repug- nant to the purposes and policies of the Act - - - In amplifying - upon these standards in Olin Corp., 268 NLRB 573 ( 1984), the Board held that the appropriate- ness of deferral, should be considered before considering the merits of the arbitrator's award . More specifically, the Board said it would defer to-an arbitrator 's award if: .1 An arbitrator has adequately considered the unfair labor practice - . . - I . 2 The contractual issue is factually paralleled to the unfair labor practice issue - 3. The arbitrator was presented generally with the facts relevant to resolving- the unfair labor practice Kansas City Star Co., 236 NLRB 866- (1978); Atlantic LABORERS LOCAL 380 (MAUTZ & OREN) Steel Co., 245 NLRB 814 (1979); International Harvester, Co., 138 NLRB 923, 929 (1962). In applying the above standards for deferral determi- nation, the Board further stated that the following fac- tors should be taken into consideration: (a) Any differences between the contractual and statu- tory standards of review should be weighed in determin- ing whether an award is "repugnant" to the Act. (b) Such determination need not be'totally consistent with Board-precedent. International Harvester Co., supra; Ramsey v. NLRB, 327 F 2d 784 (7th Cir. 1964), (c) The arbitrator's award is palpably wrong, i.e-, unless the arbitrator's decision is not susceptible to an in- terpretation consistent with the Act. (d) The parties seeking to have the Board reject defer- ral and consider the merits must show that the above standards for deferral have not been met In complying with these criteria it is noted that pursu- ant to the collective-bargaining agreement between the parties, an arbitration hearing was held on February 17, 1984, at which all parties were represented and presented evidence. Thereafter, the parties submitted posthearing briefs and the arbitrator considered the factual evidence, interpreted the contract, made findings with respect to the parties compliance therewith, and issued a decision in favor of the grievant on February 24, 1984. Interpreting the seniority clause in article 23 for pur- poses of contract compliance, the arbitrator broadly con- strued the language of the clause. In declining to inter- pret the clause with respect to the statutory question whether the seniority of stewards under the article 23 clause discriminated against nonsteward unit employees, the arbitrator said: The ultimate point to be made is that the Compa- ny's contention that Article 23 is void and unen- forceable is in the wrong forum That question is beyond the power and authority of the arbitrator to decide. The arbitrator can only interpret and apply the contract as written and leave it to the National Labor Relations Board or other appropriate author- ity to resolve the question the Company has at- tempted to raise. In view of the explicit declination of the arbitrator to analyze and make findings of jobsite conditions as to whether the stewards seniority right to weekend and hol- iday overtime work discriminated against unit employees in favor of stewards (by giving stewards extra benefits solely because of their union position), I find that the issue is not paralleled to the issue decided by the arbitra- tor. . The arbitrator expressly declined to consider and decide the unfair labor practice issue (whether the super- seniority of a steward under article-23 of the agreement is discriminatory and invalid), because he concluded he did not have authority to interpret and apply the Nation- al Labor Relations Act and Board decisions - To the extent the arbitrator heard, considered, and de- cided the factual issues and the applicability of article 23 to them, I find that the proceeding was fair and regular; that the parties agreed to be bound by the, arbitrator's award and that they are in fact bound by his' award, that 1053 the arbitrator did not consider the unfair labor practice- issue; and that neither Spielberg nor Olin expressly con- sidered deferral to an arbitrator's award which refused to address and dispose of the statutory issue Although the arbitrator's award did not address the unfair labor practice issue, and his interpretation of the contract and decision on the facts are not necessarily in- consistent with the Act, and are final, I find that the fact that the residual unfair labor practice issue was not ad- dressed and resolved, leaves the award not susceptible to an interpretation consistent with the Act. Under the standards set forth in Olin, such an award is palpably wrong. In applying Olin, I find that the arbitrator's award herein, if not palpably wrong in this respect, is palpably inadequate for a resolution of the dispute. Additionally, since the Employer argued throughout arbitration and the instant proceeding that article' 23 is overly broad and discriminatory against other nonstew- ard unit employees, and therefore invalid, I further find that the unfair labor practice issue is still outstanding and that the Employer has thereby shown that Respondents have not met the standards enunciated in Olin for defer- ral. That is, since the arbitrator's award is not susceptible to an interpretation consistent with the Act, it is palpably wrong or palpably inadequate in satisfying then statutory purposes of the Act. Deferral is therefore inappropriate, and it should be and is rejected. Olin Cooperative, supra The Legality of Article 23 In Dairylea Cooperative, supra, 219 NLRB at 657, the contract between the Company and the union contained a superseniority clause which provided that: "The stew- ard shall be-considered the Senior employee in the craft in which he is employed." The employer posted a notice of a more lucrative wholesale route for bidding by its employees. Seven bids were submitted. However, pursu- ant to the superseniority clause in the contract with the union, the route was awarded to a steward employee, over another employee who had more seniority. The Board held that by maintaining and enforcing the steward superseniority clause in the collective- bargaining agreement, the union violated Section 8(b)(1)(A) and (2) of the Act because the clause gave seniority to union stewards only because they are stewards. Such seniority gave stewards a- preference in securing a wide range of on-the-job benefits other than layoff and recall. Such pri- ority rights thereby unlawfully encouraged union activ- ism and discriminated with respect to on-the-job benefits against employees in the exercise of their rights protect- ed by Section 7 of the Act "It has not, however, been established in this case or elsewhere that super-seniority going. beyond layoff and recall serves any aim other than the impermissible one. of giving union stewards special economic. or. other on-the-job benefits solely because of their position in the Union." ,Superseniority limited to layoff and recall, the Board said, is lawful because it furthers the effective administra- tion of bargaining agreements by encouraging the contin- ued presence of stewards on the jobsite; that such clause not only, serves a legitimate statutory purpose. but its ef- fects, inures to the benefit of all unit employees, that such 1054 DECISIONS OF NATIONAL `LABOR RELATIONS BOARD discrimination as may result from its application is "simply an incidental side effect of a more general bene- fit accorded all employees "; and that such seniority going even beyond layoff and recall is not per se unlaw- ful, but in view of its inherent tendency to discriminate against employees for union -related reasons, coerces and restrains employees in the exercise of Section 7 rights, and that: . . . we do find that superseniority clauses which are not on there face limited to layoff and recall are presumptively unlawful, and, that the burden of rebut- ting that presumption (i.e., establishing justification) rests on the shoulders of the party asserting their le- gality. Since the superseniority clause of article 23 in the in- stant proceeding is not limited to layoff and recall of stewards, but extends by contract interpretation of the arbitrator to overtime work for stewards on Saturday, the clause is presumptively unlawful. The clause is pre- sumptively unlawful because not only does it assure the presence of a steward on the job on Saturday but also because it confers upon the steward the additional bene- fit of Saturday work and wages at the rate of time and one-half Respondents having steadfastly maintained that the superseniority clause of article 23 . is lawful, it is therefore incumbent upon them to rebut the presumption of unlawfulness, by demonstrating that Saturday over- time work for stewards serves a legitimate statutory pur- pose, other than the impermissible one of giving stewards additional Saturday overtime benefit to the exclusion of other nonsteward unit employees, simply because of their union position. APA Transport Corp., 239 NLRB 1407 (1979). In attempting to rebut the presumption, Respondents offered testimony of the character which would support a lawful superseniority clause for, layoff and recall, mainly, assurance of the presence of a steward on the job to protect jurisdictional work of unit employees. Howev- er, such evidence does not address the additional and dis- criminatory benefit to stewards of overtime Saturday work at the rate of time and one-half. No evidence was offered by Respondents to justify this extended job bene- fit to the steward. In fact, it is clear from the record evi- dence that Respondents are maintaining that Steward Kelly should be paid for the Saturday overtime work by virtue of its conference upon stewards by article 23 of the contract If Kelly were not a steward, it is obvious Respondents would not be demanding such payment to Kelly to the exclusion of Colclasure, who performed the work, or other nonsteward unit employees. It is sufficiently demonstrated by the evidence that Re- spondents have not established that circumstances existed which required the presence of a steward on the job at all times. On the contrary, the evidence shows that a steward was not present on the job when Norman Carney and other unit employees worked overtime on Friday, September 23, or at other times when the stew- ard was absent It was not established that it - was the practice -of the Union to assign an alternate steward in the absence of the regular steward on the job. Nor was it shown that there were craft disputes over jurisdiction Grievances which arose on a workday when the steward was not present was filed or processed on the next day when the steward returned. Consequently, since Re- spondents have not demonstrated that payment for the Saturday overtime work at the rate of time and one-half to Kelly would promote the administration. of the collec- tive-bargaining agreement beyond the incidental and side benefits of having a steward on the job to police unit work, Respondents have not demonstrated a substantial and legitimate business justification for compelling the payment to Kelly. Auto Warehousers, 227 NLRB 628 (1976); W. R. Grace & Co., 230 NLRB 259 (1977). Under these circumstances, I find that payment for such Satur- day work to Kelly would create more than incidental discrimination, but rather, substantive discrimination with a tendency to create and encourage union activism, such as the very grievance and charges that have been filed in the instant case. Dairylea Cooperative, supra. Additionally, Auto Workers Local 133 (Chrysler Corp., 228 NLRB 1446 (1977), is distinguishable from the in- stant case because there, . unlike here, the Board found that the presumptive unlawfulness of the superseniority clause in the contract-had been successfully rebutted, be- cause there were numerous and frequent jurisdictional disputes amongst the various 'crafts on the job, that grievances were apt to arise during overtime work peri- ods, and that the presence of the steward on the job at all times was for the benefit of the employees, in order to protect their contractual interest. See also APA Transport Corp, 239 NLRB 1407 (1979). In paragraph 6 of the answer to the complaint, Re- spondents assert that the complaint herein is barred by Section 10(b) of the Act and should be dismissed. Re- spondents do not explain their assertion and they did not address this subject at the hearing or in their posthearing brief to me. A review of the record herein does not reveal circumstances which warrant an application of Section 10(b) of the Act However, considering Re- spondents assertion in the most imaginative fashion, it would appear, as the General Counsel reasons, that their assertion is predicated on the theory that the contract be- tween the parties was executed more than 6 months before the complaint herein was filed. The date of execution of the agreement between the parties is not necessarily the sole factor considered in de- termining whether an allegation in the complaint alleging an unlawful provision in the contract is barred by Sec- tion 10(b) of the Act. Subsequent conduct of the parties with respect to the allegation may or may not be rele- vant to such a determination. While the nature of the particular provision in the contract may have a continu- ing unlawful affect from the date of its execution, subse- quent conduct of the parties in recognizing, enforcing, or attempting to enforce such provision, may highlight a continuation of its unlawful effect, or constitute inde- pendent reaffirmations of its effectuation. While it is true that the agreement containing article 23 was executed more than 6 months prior to the filing of the complaint, Respondents, in'attempting to enforce article 23 on behalf of Steward Kelly, certainly renewed LABORERS LOCAL 380 (MAUTZ & OREN) 1055 and reaffirmed independently the effect of this provision, calling into question a determination of its lawfulness. Respondents initial efforts to enforce payment of Stew- ard Kelly pursuant to article 23 occurred on September 24, 1983, and the complaint herein was filed on March 16, 1984. Respondents-continued its efforts to enforce the article 23 provision on dates subsequent to September 24 and up to the date of the arbitrator's award on February 24, 1984, each effort renewing and reaffirming the un- lawful teidency'and effect. Under these circumstances, it is clear and I find that the attempted enforcement of arti- cle '23 by Respondents is well within the time frame of Section 10(b) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set- forth in section III, above, occurring in - connection with the operations of the Employer and Respondents, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening ,and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices warranting a remedial order, I shall rec- ommend that they cease. and desist therefrom and that they take certain affirmative action necessary to effectu- ate the policies-of the Act. - Having found that Respondents by attempting to en- force the super-seniority provisions of article 23-of the collective-bargaining agreement between the" parties, re- strained,and coerced, or had a tendency to restrain and coerce employees in the exercise of rights guaranteed in 'Section 7 of the Act, in violation of-Section 8(b)(1)(A) pf the Act; and that by causing or attempting to cause the Employer to discriminate against I its, employees in viola-, tion of Section 8(a)(3) of the Act, Respondents violated Section 8(b)(3) and (2) of the Act, I shall recommend that they cease and desist -therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Because of the character of the unfair labor practices herein found , the recommended Order will provide that Respondents cease and desist from , in any like or related manner, interfering with, restraining, or coercing em- ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). On the basis of the above findings of fact and on the entire record in this case, I make the following . CONCLUSIONS OF LAW 1. The Employer, Mautz & Oren, Inc, is and has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents Laborers Local Union No. 380, affili- ated with Laborers International Union of North Amer- ica, AFL-CIO and Southern Illinois Laborers District Council, Laborers International Union of North Amer- ica, AFL-CIO are, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. 3. By enforcing or attempting to enforce the supersen- iority clause of the collective -bargaining agreement, Re- spondents restrained and coerced' or tended to restrain and coerce employees in the exercise of rights guaran- teed them by Section 7, in violation of Section 8(b)(1)(A) ' of the Act. 4. By causing and attempting to cause the Employer to discriminate against its employees in violation-of Section 8(a)(3) of the Act, Respondents 'violated Section 8(b)(3) and (2) of the -Act. - 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. l^ ^