Telford & Doolen, Inc.

1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Telford & Doolen, Inc. and Local No. 324, Interna- tional Union of Operating Engineers, AFL- CIO. Cases 7-CA-20455 and 7-CA-20505 11 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 29 March 1983 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in sup- port of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions, as modified, but not to adopt the rec- ommended Order. 1. The judge concluded that the Respondent vio- lated Section 8(a)(1) and (5) when it "permanently laid off' Richard Fanko without following the se- niority, provisions of an expired collective-bargain- ing agreement. The Respondent excepts, urging that Fanko's termination was for cause and, thus, the seniority provision of the collective-bargaining agreement was irrelevant. We find merit to this ex- ception. Fanko was the Respondent's senior mechanic. On 27 July 1981 he received a letter of reprimand for work done on a "Brown Brother's" engine.' He received another letter of reprimand, dated 1 December 1981, in which the Respondent com- plained about Fanko's servicing of a "Warner & Swasey G-440 grade-all," a backhoe or excavator used for ditching and ripping up concrete and street pavement. On 12 March 1982, the Respond- ent discharged Fanko. At the hearing, the Respondent's customer serv- ice manager testified that the Respondent fired Fanko because it was dissatisfied with his work. The Respondent's president added that a second motivation for discharging Fanko was that its busi- ness was slow. (The Respondent's four mechanics, its entire service department, were laid off on 13 November 1981.) Although the judge did not reject the Respondent's contention that its decision to discharge Fanko was "prompted by its realiza- i Although Fanko filed a grievance in which he asserted that the 27 July reprimand was improper, he did not grieve that reprimand until 7 January 1982, 5-1/2 months later Not only was the grievance untimely vis-a-vis the parties' collective-bargaining agreement, but Fanko's delay in filing the grievance suggests that, at least initially, he acquiesced in the appropriateness of that reprimand tion that business was in a state of permanent re- trenchment," coupled with its determination that Fanko was a "less than satisfactory employee," he nevertheless concluded that when the Respondent discharged Fanko, it was trying to avoid the impact of the seniority provisions of its expired col- lective-bargaining agreement. The sole support for this conclusion is that the Respondent delayed until 12 March 1982-3 months after the second repri- mand-to terminate Fanko. If the discharge was based on problems with the employee's work performance, the seniority provi- sions of the contract would not apply. We find that the letters of reprimand clearly document the Re- spondent's dissatisfaction with Fanko's work; the Respondent's explanation that it discharged Fanko for cause is thus well supported by the record. Despite the record regarding Fanko's poor work performance, the judge found that the Respond- ent's 3-month delay in terminating Fanko evi- denced an attempt to avoid the seniority provisions of the expired collective-bargaining agreement. We do not agree. Fanko was already laid off when he received the second reprimand. Thus, we are not presented with a situation where an employer tol- erated a poor worker in its operations for several months before discharging him. Here, there was no urgency for the Respondent to discharge Fanko be- cause Fanko was not working and could not jeop- ardize the Respondent's operations with a poor work performance. In these circumstances, we find that the Re- spondent's delay is insufficient evidence to establish a violation of Section 8(a)(1) and (5) of the Act. We therefore find that Fanko is not entitled to re- instatement as recommended by the judge.2 2. The judge concluded that by assigning unit work to a supervisor while employee Thomas A. Berrill was on layoff, the Respondent unilaterally changed provisions of the expired collective-bar- gaining agreement without having bargained with the Union, thereby violating Section 8(a)(1) and (5) of the Act. In support of his conclusion, the judge cited two sections of the expired collective-bargain- ing agreement . The Respondent contends that nei- ther provision applies to the instant case. We agree. 2 As we affirm the judge's conclusion that the Respondent unilaterally changed a term or condition of employment without bargaining with the Union when it failed to recall Fanko pursuant to the seniority provisions of the expired collective-bargaining agreement, we adopt that part of the judge's remedy which provides that the Respondent make Fanko whole for any loss of earnings which he may have suffered by reason of the Respondent's violation of the Act However, we modify the backpay award so that it runs only from 13 November 1981 until 12 March 1982, the period when Fanko was on layoff prior to his discharge, during which period the Respondent occasionally recalled mechanics 277 NLRB No. 112 TELFORD & DOOLEN, INC. Thomas Berrill was the union steward at the af- fected facility and, as such, was contractually granted job retention superseniority. Accordingly, he was the last bargaining unit employee in his de- partment, the parts department, to be laid off. He was laid off on 4 December 1981. Thereafter, the supervisor ran the parts department by himself until 27 August 1982, when the Respondent closed the department. After Berrill was laid off, the su- pervisor spent approximately 20 percent of his time dispensing parts and doing what had previously been bargaining unit work. Article I(j) of the expired collective-bargaining agreement provides: The Company agrees to respect the jurisdic- tional rules of the Union and shall not direct or require its employees other than the em- ployees in the bargaining units here involved, to perform work which is recognized as the work of the employees in said units, subcon- tracting work to be excluded. Furthermore, it is agreed that Supervisory Personnel and sales- men will not perform any work regularly as- signed to the bargaining unit. The judge reasoned that a unit employee was con- tractually entitled to do the work that had previ- ously been assigned to the bargaining unit which the supervisor spent 20 percent of his time doing after Berrill was laid off. The Respondent contends that the provision of the parties' collective-bargain- ing agreement quoted above is part of a union-se- curity clause which governs terms and conditions of the employer-union relationship (as opposed to the employer-employee relationship), and thus did not survive the contract's expiration. Bethlehem Steel Co., 136 NLRB 1501, 1502 (1962). The judge did not respond to this contention and we need not pass on it because we find that, in any event, there are insufficient grounds to apply the clause in such a manner to sustain a finding of unilateral change. All the unit employees in the parts department had been lawfully laid off when the supervisor per- formed the small amount of work at issue. The judge nevertheless determined that the clause ap- plied even in the absence of any unit employees. However, the clause does not specifically address a situation in which all unit employees have been laid off nor does it appear that the parties in negotiating that clause contemplated such a situation arising. Therefore, contrary to the judge, it is not clear that that clause prohibited the Respondent from utiliz- ing its supervisory personnel to do incidental parts handling work that needed to be done rather than close its parts department when the work level dropped below that warranting the retention of at 1055 least one unit employee. Accordingly, we cannot find that the Respondent failed to apply the clause in violation of Section 8(a)(5) of the Act. The second provision the judge relied on, article XXVIII(c), states that on Saturdays and during overtime "parts . . . shall not be dispensed other than through a Partsman." Because there was no evidence that the "bargaining unit work" the su- pervisor, performed involved any Saturdays or overtime, this article was not implicated and the judge's reliance on it was in error. Accordingly, we conclude that the Respondent did not unilaterally `change any contract terms it was obligated to follow and, thus, did not violate Section- 8(a)(1) and (5) of the Act when it assigned work to the parts department supervisor. There- fore, Berrill is not entitled to the relief awarded by the judge. AMENDED CONCLUSIONS OF LAW Substitute the following as Conclusion of Law 5: "5. By failing to observe the seniority provisions of an expired collective-bargaining agreement in laying off and failing to recall Richard Fanko prior to his discharge on 12 March 1982, the Respondent violated Section 8(a)(1) and (5) of the Act." ORDER The Respondent, Telford & Doolen, Inc., Grand Rapids and Lansing, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively in good faith with Local No. 324, International Union of Operat- ing Engineers, AFL-CIO by unilaterally changing the terms and conditions of employment of its bar- gaining unit employees, including but not limited to the failure to observe the seniority provisions of its contract in recalling Richard Fanko. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) Give full force and effect to the provisions of its collective-bargaining agreements requiring the observance of seniority in the layoff and recall of employees. (b) Make Richard Fanko whole for any loss of pay suffered by him by reason of the violations of the Act found herein, with backpay and interest thereon computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flori- da Steel Corp., 231 NLRB 651 (1977). 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, on request, make available to seniority provisions of the expired collective-bar- the Board or its agents for examination and copy- gaining agreement. ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at the Respondent's places of business in Lansing, Grand Rapids, and Livonia, Michigan, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that all other allega- tions of the consolidated complaint are dismissed. 3 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 Nation- al 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 " APPENDIX NOTICE To EMPLOYEES 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 unilaterally change the terms and conditions of employment of our bargaining unit employees without first bargaining, on request, with Local No. 324, International Union of Operat- ing Engineers, AFL-CIO and WE WILL NOT unilat- erally change the terms and conditions of employ- ment of our bargaining unit employees by laying off or recalling employees out of seniority. WE WILL NOT in any like or related manner interfere with, restrain, or' coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make Richard Fanko whole for any loss of pay, with interest, which he may have suf- fered by our failure to recall him pursuant to the TELFORD & DOOLEN, INC. John Ciaramitaro, Esq., for the General Counsel. J. R. Telford, President of Telford & Doolen, Inc., of Lan- sing, Michigan, for the Respondent. Frederick B. Gold, Labor Relations Consultant of Bir- mingham, Michigan, for the Charging Party. DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H. MALONEY JR., Administrative Law Judge. This case came on for hearing before me at Grand Rapids, Michigan, on a consolidated unfair labor practice complaint,' issued by the Regional Director for Region 7, which alleges that Respondent Telford & Doolen, Inc.2 violated Section $(a)(1), (3), (4), and (5) of the Act. More particularly, the consolidated complaint alleges that the Respondent violated its duty to the Union by re- fusing to bargain with it over its refusal to recall steward Thomas Berrill from layoff, by its decision to lay off Richard Fanko out of seniority and later to discharge him, and by its refusal to consent to an audit of its fringe benefit payments. The General Counsel also contends that the layoffs and refusal to call Berrill were discrimin- atorily motivated because of the union activities of Ber- rill and Fanko and because they filed charges and gave statements under the Act. Respondent denies the charges of unlawful layoffs and recalls, points to the fact that no contract requiring superseniority for stewards or requir- ing seniority was in effect at the time these events oc- curred, and claims that it did in fact submit to an audit of its fringe benefit payments and has in fact made the pay- ment required by the audit. On these contentions, the issues herein were joined.3 1. THE UNFAIR LABOR PRACTICES ALLEGED At the time the events in question took place, the Re- spondent operated three small sales and service establish- i The principal docket entries in this case are as follows: Charge filed against Respondent in Case 7-CA-20455, by Local 324, International Union of Operating Engineers, AFL-CIO (the Union), on March 24, 1982; charge filed by the Union against Respondent in Case 7- CA-20505, on April 6, 1982; amended charge filed by the Union in Case 7-CA-20455, on April 30, 1982; consolidated complaint issued by the Re- gional Director against Respondent on May 24, 1982; Respondent's answer filed on June 1, 1982; hearing held in Grand Rapids, Michigan, on January 25, 1983 2 Respondent admits, and I find, that it is , a Michigan corporation which maintains sales and service facilities for heavy equipment at Li- vonia, Lansing, and Grand Rapids, Michigan. In the preceding year, it sold and distributed in Michigan products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped directly into Michigan from points and places located outside of Michigan. According- ly, Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec. 2(5) of the Act. 3 Certain transcript errors have been noted and corrected. TELFORD & DOOLEN, INC. ments in Livonia, Lansing, and Grand Rapids, Michigan, where it sold and repaired heavy construction machin- ery. At those three locations, it employed a total of 16 shop employees all of whom were divided into 2 catego- ries, mechanics and partsmen . These locations were su- pervised by the, Respondent from its office in Lansing. For a number of years the Union has represented the Respondent's mechanics and partsmen . The Livonia shop, which is located in the Metropolitan Detroit area, is part of a multiemployer unit in which bargaining for employers is conducted by an association known as the Detroit Area Equipment Dealers Association. The Lan- sing and Grand Rapids shops together constitute one single-employer unit. In representing both employees of the Respondent and others throughout the state, it has been the practice of the Union first to negotiate a con- tract covering the Detroit area heavy equipment shops on a multiemployer basis and then to ask other out-of- state employers to sign the same contract on a single-em- ployer or single-unit basis. This is the track which the Union followed in 1981, after the expiration of the 1978- 1981 agreement and after the conclusion of multiemploy- er negotiations in Detroit. Toward the end of September 1981, Marvin McLaren, the Union's business representative, visited J. R. Telford, president of the Respondent, at the latter's office in Lan- sing. He presented Telford with a copy, of the Detroit Association agreement and asked Telford to sign it for his Lansing and Grand Rapids shops. Telford was famil- iar with the contents of the agreement since. he had served as a member of the Association's bargaining com- mittee. He told McLaren that he wanted to go over the agreement with his partner and would either sign it then and send it to him or would sign it when he came to De- troit for the signing of the association agreement. In fact, Telford did not sign the Lansing-Grand Rapids agree- ment during that time and did not do so until September 2, 1982, nearly a year later. The agreement in question runs from July 1, 1981, to June 30, 1984. Between September and December 1981, Telford and McLaren exchanged some correspondence concerning the agreement. On September 30 Telford wrote to McLaren and told him that the Respondent interpreted a rider to the contract to exempt the Respondent from any hourly contribution to the Union's pension plan or to the Respondent's pension plan. He also told McLaren that he would not deduct 5 cents per hour from the wages of the Respondent's unionized employees. On November 11 McLaren responded in writing, saying that the sum in question should not be deducted for the pension plan but should be added to the hourly rate paid to the Respond- ent's employees. A month later, McLaren again wrote to Telford, complaining that Telford had continued to refuse to execute the contract which was assertedly agreed on, and threatened to pursue any and all legal remedies to effect an execution of the agreement. During 1981 the Respondent's business reflected the depressed condition of the,building and construction in- dustry which it serves. In its Lansing shop, the focal point of this case, it had laid off two of its three parts- men during 'the fall of 1980 and the spring of 1981 be- cause of lack of work. Neither was ever recalled. On 1057 November 10, it called its four Lansing mechanics into the, office and told them that they were being indefinitely laid off because of lack of work. The net effect of this action was to leave on the Lansing payroll only one non- supervisory employee, partsman Thomas A. Berrill, who was also the shop steward for the entire brand Rapids- Lansing unit. Shortly thereafter, the city of Lansing brought a gra- deall into the shop for servicing. Stan Drushel, the cus- tomer service manager, instructed an office clerical em- ployee, known only as Linda, to contact Fanko.and ask him to come in to work on the equipment. Fanko was the senior mechanic in point of service. Fanko came to the shop the following Monday to pick up his paycheck and was asked by Linda on this occasion to report for work. He told her that he had made previous arrange- ments with Drushel to go deer hunting and suggested that she contact George Wedel, the next senior employ= ee. Wedel was put to work on this repair job. At times, not indicated in the record, the Respondent recalled the other two mechanics, John Vogt and Art Andrews. During the week of Thanksgiving, all service mechanics and Berrill were again laid off. Berrill was recalled the following week and was laid off again on December 4. Following the second layoff, he was never again em- ployed by the Respondent. In late August 1982, Re- spondent closed its parts department. Between December 1981 and August 1982, the parts department was manned by former Parts Supervisor Del McCann. Drushel esti- mated that McCann spent 20 percent of his working day doing the parts department work, which Berrill formerly did, and the rest of his time performing other functions. When the parts department was finally closed, McCann was laid off. Vogt, Andrews, and Wedel continued to work in the shop sporadically throughout the winter of 1981 and 1982 and thereafter, but Respondent never again recalled Fanko. During the week of Thanksgiving, the Respondent had occasion to service the city of Lansing's Warner & Swasey G-440 gradeall. The machine had been in the shop previously for regular 30- and 90-day inspections following sale. On this occasion, a Warner & Swasey factory representative was present to assist in the 180- day inspection. They found, for the first time, that the previous inspections, which Fanko had performed, had not been properly performed and that Fanko had signed or initialed inspection reports which, in part, were false. On December 1, Drushel wrote Fanko a letter of repri- mand and sent it to his home. The letter read: Because of your failure to perform your work satisfactorily, this is your second official warning of our dissatisfaction with your work. We refer to the Warner & Swasey G-440 owned by the City of Lansing on which you performed the pre-delivery 30, 90, and 180 day inspections and you stated in your report that you had checked the complete machine and all were O.K." However, you had not removed the upper air cleaner for inspec- tion, boom rollers and boom tilt were never adjust- ed, and were so, far out of adjustment that serious damage did exist. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above items were brought to our attention by our Warren & Swasey Service Representative. We shall expect an improvement in your work. On January 7, 1982, Fanko filed a grievance relating to the December 1 letter denying all responsibility for shoddy inspections. During this same period of time, other grievances were lodged against the Respondent. On January 7 Fanko also filed a grievance objecting to a letter of rep- rimand, which he had received on July 27, relating to the improper repair of a Brown Brothers engine some- time in the early summer of 1981 . It was this reprimand to which Drushel made reference in his December 1 letter. Fanko also filed a grievance concerning the Re- spondent's failure to recall him in order of seniority fol- lowing the November 23 layoff. For his part, Berrill also filed a grievance . On Decem- ber 15 , he grieved that a supervisor was doing parts de- partment unit work during the Thanksgiving week layoff and that the same supervisor was doing unit work fol- lowing his December 4 layoff. On February 26, 1982, Telford denied these grievances on the basis that the Company was not operating under a contract with Lansing and Grand Rapids and that there was no grievance procedure in effect . Article VI of the contract, which had expired the previous June , provided that "all grievances, disputes or complaints arising under and during the terms of this Agreement" would be set- tled in accordance with the grievance machinery . It also required that grievances be filed within 15 days after they became known. The provisions of the 1981-1984 contract contained changes in the employer contribution to various fringe benefit trust funds. In the fall of 1981, McLaren felt that the Respondent was failing to make payments in accord- ance with the new rate and asked Linda Bodalski, the contributions clerk for the Operating Engineers health care plan, to inquire into the matter and to bill the Re- spondent for any delinquent payments. On December 23, 1981, she sent the Respondent the following letter: It has been brought to our attention that your contract with Operating Engineers Local 324 re- quires a rate increase for the insurance fund effec- tive July 1 , 1981, to $1.10 per hour. This increase results in an additional amount due of $2155 .00 for July thru October 1981, as shown: July 1981-3387 hrs.-$846.75 Aug. 1981-2699 hrs.-674.75 Sept. 1981-2534 hrs.-633.50 Oct. 1981-3100 hrs.-775.00 Please remit the additional monies due as early as possible. A return envelope is enclosed for your convenience. that the new contract and the new rate applied only to its Livonia operation, Telford replied on January 4, 1982, as follows: In response to your letter of December 23, 1981, we are in the process of breaking out the hours worked by our Livonia employees . As soon as this is done, a remittance will follow. We have a contract in Livonia but have not reached an agreement as yet in Lansing or Grand Rapids. On March 24, Wilbur A . Staley, field coordinator of the Operating Engineers Fringe Benefit Funds, again wrote to the Respondent: On behalf of the Board of Trustees of the Operat- ing Engineers Fringe Benefit Fund, you are hereby requested to contact me in regard to performing an audit to confirm your contribution to these funds. This examination will include all your employees, regardless of occupation and will include your De- troit, Lansing, and Grand Rapids operations. Please contact the writer within ten days at (313) 644-4360 so that a mutually convenient date may be arranged to commence with this examination. Enclosed is a list of records required to properly perform this audit. Although the record on this point is unclear, apparently Telford objected to the audit, as requested , because the demand made in the March 24 letter was overly broad. On April 6, the Union filed the charge in Case 7-CA- 20505 complaining that Telford had refused to submit to an audit as required by the Respondent's collective-bar- gaining agreement. Eventually an audit was performed for the years 1979 through June 30, 1982. On August 18, 1982, Mark Armijo, an employee of the Fund 's outside auditor, met with the Respondent's comptroller, who made available to him the Respondent's records for all three facilities. On October 7, Armijo returned to the Respondent's office and obtained additional records which were neces- sary to complete the audit. On October 19 Armijo sub- mitted to the Respondent the results of the audit, which indicated that, for the 4 years in question, Respondent owed the Fund $894.97, plus liquidated damages in the amount of $89.50. The breakout of employee records au- dited, which was attached to Armijo's October 19 letter, does not include the name of any employee in the Lan- sing bargaining unit. As of the date of the hearing, Janu- ary 25, 1983, the amount requested had not been paid, al- though Telford, acting in his capacity as Respondent's attorney, stated for the record that the money would be paid. Both Respondent and the Charging Party agree in their posttrial briefs that the sum requested by the audi- tor was paid shortly after the close of the hearing. McLaren did not personally follow up on this request, even though he was in touch with Telford from time to time on other matters, and apparently the Respondent failed to supply the promised breakout of hours worked by employees in his respective shops. In light of the fact Analysis and Conclusions The events involved in this case took place , for the most part, during a hiatus when the Lansing shop was not subject to the terms of an existing collective -bargain- TELFORD & DOOLEN, INC. ing agreement. The old agreement had expired and a new agreement covering that location had not yet been signed. The General Counsel's theory apparently pro- ceeds on the proposition set forth in Bay Area Sealers, 251 NLRB 89 (1980), as well as other cases. In that case, the Board stated (at 90): Although an employer's contractual obligations cease with the expiration of the contract, those terms and conditions established by the contract and governing the employer-employee, as opposed to the employer-union, relationship survive the con- tract and present the employer with a continuing obligation to apply those terms and conditions, unless the employer gives timely notice of its inten- tion to modify a condition of employment and the union fails to timely request bargaining, or impasse is reached during bargaining over the proposed change. In applying Day Area Sealers, it is well to remember that there is a difference between a breach of contract and the unfair labor practice of unilaterally changing the terms and conditions of a collective-bargaining agree- ment. As the Supreme Court pointed out in NLRB v. C & C Plywood Corp., 385 U.S. 421 at 427 (1964): When Congress determined that the Board should not have general jurisdiction over all alleged violations of collective bargaining agreements and that such matters should be placed within the juris- diction of the courts, it was acting upon a principle which this Court had already recognized: "The Railway Labor Act, like the National Labor Relations Act, does not undertake govern- mental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them." Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6. To have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements. We view Congress' decision not to give the Board that broad power as a refusal to take this step. What applies to the Board's jurisdiction over the terms of existing agreements should apply with even greater force to expired ones. With respect to the layoffs of Berrill and Fanko and the Respondent's ultimate discharge of Fanko, I do not feel that there is any basis for the General Counsel's con- tention that these actions were prompted by discrimina- tory motives or by a desire to take punitive action against either employee because they filed charges or gave testimony under the Act. Respondent's motives were purely economic, coupled with its dissatisfaction with Fanko's recent job performance. No one denies that 1059 the Respondent was in bad financial shape and apparent- ly still is. It laid off its entire Lansing work force during the 1981 to 1982 fall and winter and recalled those em- ployees only from time to time. It ultimately closed the parts department at Lansing in August 1982, and laid off the supervisor who had been operating that department on a part-time basis. No one has been hired to replace either Fanko or Berrill. Accordingly, I conclude that they were both removed from the Respondent's payroll as part of an effort to pare costs and keep the business from folding, so I would dismiss so much of the consoli- dated complaint which alleges a violation of Section 8(a)(3) or (4) of the Act. However, a finding that the Respondent's motivation was not illegal does not dispose of the Fanko or Berrill cases. The Respondent was party to an expired collec- tive-bargaining agreement covering both men. The agreement contained conventional seniority provisions requiring that layoffs and recalls be made in accordance with length of service. Article 111(a) of the agreement further provided that seniority should be by department and that the "departments shall be the Parts Department and the Service Department." Article VII(a) provided that "steward, alternate or committee man shall work when three (3) or more union men work in the Service Department or Parts Department excluding working Fieldmen away from the Shop." Despite the fact that se- niority is a right which is exclusively the creature of contract, the Board has held that it is the type of em- ployee benefit which does not expire when a contract ex- pires and that contractual seniority must be followed during the postcontract period unless it has been bar- gained away or subsequent bargaining over the issue has reached an impasse. Caravelle Boat Co., 227 NLRB 1355 (1977). It follows from this premise that Fanko, who had the most seniority of any service mechanic, was entitled to be the last man in the service department at Lansing to be laid off and the first to be recalled. He was not ac- corded this right. Respondent was not at fault on November 13 by as- signing certain repair work to Wedel, the second man on the seniority list. By electing to go deer hunting rather than work, Fanko waived his recall right on that occa- sion. However, he did not by that action quit his em- ployment and the Respondent's contention to the con- trary is frivolous. When Respondent went back to a full complement of mechanics, he was obligated to recall Fanko. It failed to do so. I agree with the Respondent's position that it had no obligation to honor the grievances which Fanko filed in December and January. The expired contract, by its terms, extended the grievance procedure only to disputes arising during the term of the contract. The events giving rise to Fanko's grievances took place after the contract expired. Moreover, the contract contains a 15- day limitation on the filing of grievances, so Fanko's complaints were stale, even under a literal application of grievance provision. When the Respondent discharged Fanko on March 12, 1982, it sent him a terse, two-line notification which read, "This letter will serve to notify you that you are 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no longer employed by Telford & Doolen, Inc." There was no accompanying explanation, either oral or written, to explain this action. Drushel testified at the hearing that Fanko was fired because the Company was dissatis- fied with his work. Telford added from the counsel table that another reason for the discharge was that work was slow. Fanko had done no work for the Respondent be- tween December 1, the date of his second written repri- mand, and March 12, the date of discharge. Telford was unable to explain the reason for his delay in taking action. Giving full credence to the Respondent' s explanation that the timing of the discharge was, in effect, prompted by its realization that business was in a state of perma- nent retrenchment and its further statement that Fanko was selected for discharge because he was a less than sat- isfactory employee, it appears that the Respondent was, on March 12, attempting to avoid the impact of the se- niority clause of its expired contract, a restriction which it was still duty bound to observe. When making either a temporary or permanent layoff,_ the Respondent was obli- gated to follow length of service as the criteria for layoff. It was not free to pick and choose among its serv- ice mechanics, retaining the ones it prized most highly and eliminating the one who gave it the most trouble. Had the Respondent moved promptly and discharged Fanko in December when it first uncovered his question- able inspection work on the city of Lansing gradeall, there might have been some merit to its contention that it was discharging an unsatisfactory employee for cause. In such an event, the seniority provisions of the expired contract would have been simply inapplicable. However, Respondent's overriding concern in March appears to have been that it wanted to trim its sails for a long voyage on stormy economic seas. In such an event, the termination must be deemed an economic layoff, in which event seniority, not proficiency, must be the gov- erning factor. Having laid off Fanko both temporarily and permanently without observing the seniority provi- sions of the expired contract, the Respondent was guilty of unilaterally changing a term or condition of his em- ployment without bargaining with the Union and thus of violating Section 8(a)(1) and (5) of the Act. The General Counsel's argument that the Respondent violated the contract, and hence Section 8(a)(1) and (5) of the Act when it laid off Berrill is without merit. The contract provides for superseniority for shop stewards. Such provisions have been upheld, in the face of conten- tions that they are discriminatory and a violation of Sec- tion 8(a)(3), on the premise that an employer may lawful- ly keep the shop steward on its payroll while releasing others with greater seniority so that an official union rep- resentative will be at the premises for the purpose of as- sisting in the day-to-day administration of the contract. An employer's failure to observe supersemority provi- sions of a contract which are limited to layoff, recall, and other relevant and justifiable benefits is a violation of Section 8(a)(1) and (5) of the Act. Union Carbide Corp., 228 NLRB 1152 (1977). In this case, the Respondent kept Berrill on the payroll while laying off two other partsmen who had greater se- niority. Although Berrill was the only partsman em- chanic. ployed at Lansing when he was laid off on December 4, the General Counsel maintains that the Respondent was still under an obligation to retain his services, even though no other job was available that he was qualified to fill.4 The contract in question provides for supersen- iority for shop stewards but it also provides that seniori- ty shall be accorded to all employees by department in two separate departments, parts and service. Berrill had no seniority in the service department and would not, under the contract, be entitled to bump anyone in that department in order to retain his job. No case has been cited by the General Counsel or the Charging Party in which the Board has accorded lawful superseniority to a shop steward which extends beyond his department or seniority roster, and there would be little, if any, justifi- cation for such a contractual provision. Therefore, I con- clude that, far from violating the provision of the con- tract providing for superseniority, the Respondent com- plied with that provision in retaining Berrill in prefer- ence to senior partsmen and in laying him off when it felt it no longer wanted to staff the parts department. Another provision of the expired contract comes into play in determining whether the Respondent observed its residual contractual obligations toward- Berrill. Article I(j) provides that "supervisory personnel and salesmen will not perform any work regularly assigned to the bar- gaining unit." Article XXVIII(c) provides that "parts, other than standard supplies such as gasket material, nuts, bolts, cotter keys and similar supply items not cov- ered by manufacturers parts number, shall not be dis- pensed other than through a partsman." It is admitted by the Respondent that after Berrill was laid off, McCann, the parts supervisor, dispensed parts from time to time and spent about 20 percent of his time in doing so. Al- though this assignment does not render the initial layoff of Berrill invalid or a violation of the contract, it is con- trary to the provisions of the expired contract and has incidental effects which were detrimental to Berrill while he was in layoff status. I conclude that, by assigning parts work to McCann, the Respondent unilaterally changed a provision of the expired agreement without observing its duty to bargain with the Union and, in so doing, violated Section 8(a)(1) and (5) of the Act. The consequences of this violation will be examined infra in the remedy section of this decision. The General Counsel and the Charging Party request an order directing the Respondent to submit to an audit of its fringe benefit fund payments and further requiring it to pay over to the various funds an amount of money determined to be due and .owing during an audit which was conducted. The legal. premise for this request is well settled but the factual premise is in considerable doubt. It is well established that an employer has a duty under Section 8(a)(5) of the Act to provide to trustees of fringe benefit funds books and records sufficient to enable them to conduct an audit of payments required to be made under the terms of a collective-bargaining agreement. In the event of a refusal to produce books and records nec- 4 Berrdl admitted that he was unqualified to perform the job of me- TELFORD & DOOLEN, INC 1061 essary to conduct such an audit, an appropriate remedy may include not only an order requiring production but also a "make whole" remedy requiring payment of past arrearages and liquidated damages. A necessary incident of any such order is that it is prospective in character and would apply to future audits and future delinquen- cies as well as to past disputes. Michael Rossi Carpet Co., 208 NLRB 748 (1974); Michigan Drywall Corp., 232 NLRB 120 (1977); Merryweather Optical Co., 240 NLRB 1213 (1979); Yates Drywall, 256 NLRB 591 (1981); W. L. Moore & Sons, 257 NLRB 967 (1981); Exco Contracting, 261 NLRB 1120 (1982). It is also well settled that, if a violation of the Act has been established, subsequent compliance with the law is no defense to the issuance of a Board order. NLRB v. Mexia Textile Mills, 339 U.S. 563 (1950). In this case, the Union felt that the Respondent was in arrears in the amount of $2155 for unremitted fringe ben- efit payments. It caused the Respondent to be billed for this amount. The initial bill was far in excess of what was ultimately determined to be owed. The Respondent replied to the bill by notifying the Union that it did not owe increased fringe benefits for its Lansing and Grand Rapids employees because they were not covered by the new contractual increases. It told the Fund that it would furnish a breakdown of employee hours to assist in a more accurate determination. Two months later, the Fund requested an audit of the records of "all your em- ployees, regardless of occupation" and including employ- ees at all three of the Respondent's shops. Leaving aside the troublesome question whether the right to an audit governs an employer-employee relationship and survives the expiration of a contract, or whether it governs a union-employer relationship and dies with the expiration of the contract, it is clear that a union may not demand an audit which exceeds the scope of the unit which it represents. When the Fund demanded to see the payroll records' of all of the Respondent's employees, regardless of their occupations, it was exceeding its contractual rights and the Respondent was well within its right in re- sisting such a demand. In this case, the parties eventually resolved their differences about the proper scope of a fringe benefit audit, and an audit was then performed. The time it took for this resolution to occur, as well as the time it took the Fund to perform the audit, was rather extended, but it appeared from the outset of this controversy that neither party was in a great hurry. After the audit was completed, an amount due and owing was determined and, if we are to accept the repre- sentations of union and Respondent counsel, the amount determined to be due and owing was ultimately paid. Here again, slowness, rather than a brisk , businesslike pace, characterized the progress of the parties toward a resolution of their differences. However, the Respondent has complied in full with its contractual commitments, assuming that any such commitments still remained in force in the spring and summer of 1982, so any finding of an 8(a)(5) violation must be premised on the notion that it did not do so as rapidly as it should have. I am reluc- tant to make such a finding. The expired contract, which terms give rise to the obligation here in question, sets forth no time limits within which an audit must be per- formed after a valid request has been made. We do not know at what point in time the Fund narrowed the scope of its audit request to agreeable and permissible limits. In applying a rule of reasonableness , it is well to note that a lack of urgency on the part of the Fund con- tributed to the delay in question. The fact that the Re- spondent ultimately complied with its obligations, includ- ing payment of the amount due and owing, is further in- dication that it did not unilaterally change the terms and conditions of'a collective-bargaining agreement, which is the essence of an 8(a)(5) violation. It actually observed the terms and conditions of the agreement but was merely slow in doing so. Accordingly, I would dismiss so much of the consolidated complaint which alleges that the Respondent unlawfully refused to make available books and records for the purpose of conducting an audit to confirm Respondent's contributions to the Oper- ating Engineers Fringe Benefit Funds. On the foregoing findings of fact, and on the entire record considered as a whole, I make the following CONCLUSIONS OF LAW 1. Respondent Telford & Doolen, Inc. is now and at all material times has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local No. 324, International Union of Operating Engineers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All service mechanics and parts men employed by the Respondent at its Lansing and Grand Rapids, Michi- gan shops but excluding professional employees, office and clerical employees, salesmen, watchmen, janitors, guards and supervisors defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all material times Local No. 324, International Union of Operating Engineers, AFL-CIO has been and is now the exclusive representative of all of the employ- ees in the unit described above within the meaning of Section 9(a) of the Act. 5. By failing to observe the seniority provisions of an expired collective-bargaining agreement in laying off and failing to recall Richard Fanko; and by failing to observe the provisions of an expired collective-bargaining agree- ment requiring that parts be dispensed exclusively by partsmen and that supervisors be forbidden from per- forming bargaining unit work, the Respondent violated Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Sections 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that it be required to cease and desist and to take certain affirma- tive actions designed to effectuate the purposes and poli- cies of the Act. I will recommend that it be required to offer to Rich- ard Fanko full and immediate reinstatement to his former or substantially equivalent employment and to make him whole for any loss of earnings which he may have suf- 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fered by reason of the violation of the Act found herein, with interest computed at the adjusted prime rate used by the Internal Revenue Service for determining interest due on tax payments . Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co, 138 NLRB 716 (1962). In the case of Thomas Bernll , I have not found that he was laid off in violation of the contract . Following his layoff, the Respondent violated the contract by permitting a su- pervisor to dispense parts from its parts inventory as one of several supervisory duties. This practice lasted until August 1982, when the department was entirely closed and the supervisor in question was also laid off . As Ber- nll was not unlawfully laid off and as there is no position to which he can return, I will not recommend a rein- statement remedy. It would be an abuse of discretion for the Board to require the Respondent to employ an indi- vidual on a full-time basis when it has no work for him to perform which he was capable of performing. A Board remedy does not exist to create a boondoggle. However, the fallout from the violation found does have a financial impact on Berrill , and he should be made whole to the extent of that impact . Accordingly, I will recommend that the Respondent be required to make whole Thomas A. Berrill for the loss of wages and bene- fits he suffered for so *much of the time he lost from his employment from the date of his layoff, December 4, 1981, to the date the parts department was closed, which was caused by the utilization of a supervisor doing the bargaining unit work of dispensing parts. This sum should be augmented by interest , as in the case of a rou- tine backpay order I will also recommend that the Re- spondent be required to post the usual notice, advising its employees of their rights and of the results in the case. [Recommended Order omitted from publication.]