Arvin Industries, Inc.

ARVIN INDUSTRIES Arvin Automotive, a Division of Arvin Industries, Inc. and Gene Donald Cobb United Automobile, Aerospace & Agricultural Imple- ment Workers Union, Local 759 and Gene Donald Cobb. Cases 10-CA-19585 and 10-CB- 4175 10 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 2 March 1984 Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent Union filed exceptions and a sup- porting brief. 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 brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. We agree with the judge that the Respondents violated the Act in two separate respects: (1) by maintaining provisions in their collective-bargain- ing agreement according superseniority to union officials whose responsibilities are not directly re- lated to on-the-job grievance processing and ad- ministration of the collective-bargaining agreement, and (2) by applying one of those unlawful provi- sions in a manner that accorded superseniority to such union officials and thereby enabled them to transfer into the day shift and displace a more senior employee who lacked such a contractual preference. We further agree with the judge that Section 10(b) of the Act does not bar consideration of the allegations set forth in the complaint as amended. 1. In March 1981 the Respondents executed a col- lective-bargaining agreement effective 2 March 1981 through 1 March 1984. The agreement pro- vided that seniority shall be the determinative factor in cases of layoff and recall. The agreement's seniority provision provided that "[t]he President, the Chairman of the Bargaining Committee, the Fi- nancial Secretary, and the Recording Secretary shall be considered as being at the top of the se- niority list within the plant for layoff purposes." The agreement also provided that, when practica- ble, shift preference would be guided by seniority. On 9 March 1981 the Respondents incorporated by reference into their collective-bargaining agreement a letter of understanding that established day-shift 753 preference for the above-referenced four local union officers. The letter of understanding provid- in pertinent part that: In the event an employee on a shift other than the day shift is elected to any of the four Union offices named below, the Company will transfer such officer, if the Union so requests in writing, to the day shift to a job which he has the ability to do. Such employee will remain on the day shift during the time he occupies such office. [Emphasis added.] On 4 September 1983 Charging Party Gene Donald Cobb was transferred from the day shift to the third shift because of the exercise of supersen- iority by the Respondent Union's recording secre- tary, James Dudley. The parties stipulated that Dudley has less seniority than Cobb, who has worked on the Respondent Company's day shift for 19 years. Although the record establishes that the Union conducted an election in June 1983 during which at least one officer-the financial sec- retary-was elected, it does not establish when Dudley was elected to his post. On 19 September 1983 Cobb filed the instant charges alleging the unlawful maintenance and en- forcement of contractual superseniority provisions. A complaint thereafter issued; as athended at the hearing it alleged that the Respondents violated the Act by maintaining contractual superseniority pro- visions on behalf of the financial secretary and re- cording secretary of the Respondent Union since on or about 20 March 1983, the date preceding the filing of the charge by 6 months, and by applying and enforcing one of those provisions about 1 Sep- tember 1983. As the judge found, the evidence established that the functions and responsibilities of both the Union's financial secretary and its recording secre- tary were not directly related to grievance process- ing or on-the-job administration of the collective- bargaining agreement. Accordingly, the judge found that the Respondents violated the Act both by maintenance of the contractual superseniority provisions on those officials' behalf and by enforce- ment of the shift preference provision on behalf of Recording Secretary Dudley. Gulton Electro-Voice, Inc., 266 NLRB 406 (1983), enfd. sub nom. Electri- cal Workers IUE Local 900 v. NLRB, 727 F.2d 1184 (D.C. Cir. 1984). The Respondent Union contends in its exceptions that the allegations of the complaint are barred by Section 10(b) of the Act.' Concerning the allega- ' The exceptions pertain solely to the application of Sec 10(b) and not to the merits 285 NLRB No. 102 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion pertaining to maintenance of contractual su- perseniority, it asserts that the 10(b) period com- menced at the latest in March 1981, when the bao gaining agreement containing the superseniority provisions was executed. Concerning the enforce- ment of the superseniority shift preference provi- sion in September 1983 on behalf of Recording Secretary Dudley, to the detriment of employee Cobb, the Respondent Union contends that the 10(b) period also commenced at the latest in March 1981 when, it contends, superseniority was contrac- tually granted to the recording and financial secre- taries. It asserts further that Dudley's September 1983 exercise of shift preference was not an "inde- pendent" enforcement of the contractual supersen- iority provision, but "was merely an incident of the superseniority already granted" in March 1981. In support of its contentions, the Respondent Union relies principally on NLRB v. Auto Warehousers, 571 F.2d 860, 864-865 (5th Cir. 1978), denying enf. to Auto Warehousers, 227 NLRB 628 (1976), and Benson v. General Motors Corp., 716 F.2d 862 (11th Cir. 1983).2 For the reasons set forth below, we adhere to our view that Section 10(b) does not bar litigation of the violations alleged and found in this case. In any event, as we further explain, the "enforce- ment" allegation in this case is factually distinguish- able for 10(b) purposes from the analogous viola- tion in Auto Warehousers, and, as to the "mainte- nance" allegation, three other circuit courts of ap- peals" have issued opinions since Auto Warehousers either taking issue with the 10(b) analysis of that case or expressing the view that, given the Board's refinement of its position on superseniority clauses in Gulton, supra, the Eleventh Circuit would no longer necessarily hold that the 10(b) period begins to run from the date of contract execution with re- spect to either enforcement or maintenance of su- perseniority clauses like the ones at issue here. II. In Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB,4 the Supreme Court issued its seminal deci- 8 The unfair labor practices at issue here arose in the Eleventh Circuit, which accepts, as precedent, decisions of the Fifth Circuit issued before the creation of the Eleventh Circuit Bonner v City of Prichard, 661 F 2d 1206 (11th Or 1981) Although it is the Board's policy to seek enforce- ment of its orders in the circuit in which the unfair labor practice arose, that policy in no way assures that the Board's decision in any given case will actually be reviewed in that circuit See discussion at sec IV, infra 8 NLRB v Harvey Hubble, Inc, 783 F 2d 1121 (4th Cir 1986) (on re- hearing), cert denied 107 S Ct 573 (1986), NLRB Y Auto Workers Local 1131 (Houdaille Industries), 777 F 2d 1131, 1139-1140 (6th Or 1985), NLRB v Actors' Equity, 644 F 2d 939, 943 (2d Cir 1981) 4 362 U S 411 (1960). Sion on Section 10(b). In that case, the parties exe- cuted a collective-bargaining agreement in August 1954. The agreement contained a recognition pro- vision and a union-security provision. At the time of execution, the union did not represent a majority of the employer's employees. In June and August 1955, 10 and 12 months later, charges were filed al- leging that the maintenance and enforcement of the agreement violated the Act. The Court concluded that Section 10(b) barred the allegations because the agreement was lawful on its face and the con- duct alleged to be unlawful was based on circum- stances and events existing outside the 10(b) period. 5 More precisely, the complaint alleged the improper maintenance and enforcement of an agreement with a union lacking majority status. The absence of majority status, however, could be established only by reference to events existing at the initial execution of the collective-bargaining agreement in August 1954. That date was outside the 10(b) period. The Court noted that the actual majority status of the union at any subsequent date was immaterial because of the presumption that subsequent acquisition of majority status is attribut- able to the unlawful assistance to the union re- ceived in the original agreement.6 In these circum- stances, the Court held (362 U.S. at 422-423): [A] finding of violation which is inescapably grounded on events predating the limitations period is directly at odds with the purposes of the § 10(b) proviso. [Footnote omitted.] In any real sense, then, the complaints in this case are "based upon" the unlawful execution of the agreement, for its enforcement, though continuing, is a continuing violation solely by reason of circumstances existing only at the date of execution. [Emphasis in original.] Significantly, the Court contrasted the factual cir- cumstances presented in Bryan Mfg. with other sit- uations where Section 10(b) clearly would not bar allegations pertaining to contract enforcement. These other situations are those involving an agree- ment invalid on its face or "one validly executed, but unlawfully administered."7 In applying the rule of Bryan Mfg. to the legality of superseniority clauses, the Board has long held that Section 10(b) operates to bar only allegations pertaining to unlawful maintenance or acts of un- lawful enforcement that occurred more than 6 S 362 U S at 416-419 6362 U S at 414 7 362 US at 423 ARVIN INDUSTRIES 755 months before the filing of the charge.8 We do not run afoul of Bryan Mfg. through that application of Section 10(b) because we are able to find violations based on such conduct within (or subsequent to) the 6-month period without inquiring into the cir- cumstances surrounding the original execution of the contract in which the clauses appear or indeed into any other circumstances occurring more than 6 months before the charge is filed. As to acts of unlawful enforcement, the Board has held that the period starts running from the date on which a union officer exercises his or her unlawfully ac- quired superseniority.9 Cases involving only unlaw- ful maintenance are rare, but at least with respect to clauses that on their face provide the General Counsel with a prima facie case of discrimination, the Board may find that a superseniority clause has been unlawfully maintained without finding that it has been unlawfully enforced. 1 ° In such a case, Section 10(b) bars only allegations of unlawful maintenance occurring more than 6 months before the filing of the charge. As explained below, the court of appeals in NLRB v. Auto Warehousers, supra, took issue with the Board's application of Section 10(b) to both maintenance and enforcement allegations. In Auto Warehousers, supra, the court of appeals was reviewing a Board holding regarding the legal- ity of enforcing and maintaining a superseniority provision that permitted, on union request, the grant to certain union officers of preferences in em- 8 See, e g , Houdaille Industries, 268 NLRB 1468, 1469 ( 1984), enfd sub nom NLRB v Auto Workers Local 1131, 777 F 2d 1131, 1139-1140 (6th Cir 1985), Inmont Corp, 268 NLRB 1442, 1451 (1984), Harvey Hubble, Inc, 268 NLRB 620 fn 8 (1984), enfd 783 F 2d 1121 (4th Cir 1986) (on rehearing), cert denied 107 S Ct 573 ( 1986), Auto Workers Local 561 (Scovtll, Inc), 266 NLRB 952, 959 (1983), A PA Transport Corp, 239 NLRB 1407, 1409 fn 9 (1979) See also Actors ' Equity, 247 NLRB 1193, 1197-1198 ( 1980), enfd 644 F 2d 939 (2d Cir 1981) 9 Houdaille Industries, supra, 268 NLRB at 1469, Auto Workers Local 561 (Scovill, Inc), supra, 266 NLRB at 952 & fn 5 The Board has also adopted an administrative law judge's decision holding that the 10(b) period begins running when "the legality of the clause is put in issue" Auto Workers Local 561 (Scovill, Inc), supra, 266 NLRB at 959 Given the manner in which the Board has applied the 10(b) limitation in the cases cited above, it would appear that this phrase means nothing more than that, with respect to enforcement allegations, the exercise of super- seniority that is "in issue" must have occurred during the 6 months prior to the filing of the charge Because, in determining whether an exercise of superseniority is lawful, the Board need only look to circumstances as they existed at the time of exercise, these superseniority clause cases are distinguishable from Bowen Products Corp, 113 NLRB 731 (1955), in which the finding that a seniori- ty-based layoff was unlawful required the Board to consider an alleged discriminatory act that occurred outside the 10(b) period 10 United States Steel Corp, 268 NLRB 1187 (1984), A PA Transport Corp, supra, 239 NLRB at 1407-1408 Accord NLRB v Teamsters Local 443 (Connecticut Limousine), 600 F 2d 411, 413 fn 4 (2d Cir 1979) Both A PA Transport and Connecticut Limousine involved superseniority clauses that expressly conferred preferences not limited to layoff and recall ployment matters extending beyond layoff and recall. Such clauses were presumptively unlawful under the Board's rule in Dairylea Cooperative Inc." (a forerunner of Gulton Electro- Voice, supra). The court distinguished such "presumptively un- lawful" clauses from clauses "invalid on their face" and essentially held that, under Bryan Mfg., allega- tions of unlawful maintenance could be brought more than 6 months after their initial execution only if they were facially invalid.12 In thus distin- guishing the two kinds of clauses, the court ap- peared to assume that in determining whether a presumption of unlawfulness were rebutted, the Board would necessarily look to circumstances at the time the clauses were originally executed.13 As to the allegation predicated on enforcement, the court found that the cause of action first ac- crued for purposes of Section 10(b) when the shop steward in that case publicly acquired supersenior- ity. The court held that this had occurred in April 1975, when the union had requested superseniority for the steward and the request had been granted. (The court also noted that it was in that same month that the steward had first invoked his super- seniority to acquire a particular job.) The court dis- agreed with the Board that the 10(b) period began running when the charging party was affected by the steward's rebidding for that job in August; and, because the unfair labor practice charge was filed in January 1976, the court held that the enforce- ment allegation was also barred.14 IV. With respect to the application of Section 10(b) to the enforcement allegation in the present case, the Eleventh Circuit rule would produce no result different from our own rule. Under our rule, the 10(b) period began running when Recording Secre- tary Dudley exercised his unlawfully acquired su- perseniority to bump the Charging Party from the day shift; this occurred about 2 weeks prior to 19 September 1983, when the charge was filed. The charge is also timely under the Eleventh Circuit's rule because there is no record evidence that Re- cording Secretary Dudley publicly acquired his su- 11 219 NLRB 656 (1975), enfd sub nom NLRB v Teamsters Local 338, 531 F 2d 1162 (2d Cir 1976) 12 571 F 2d at 863 18 Id 14 Id at 864 The Eleventh Circuit expressly cited this aspect of Auto Warehousers in Benson Y General Motors Corp, 716 F 2d 862, 864 (11th Cir 1983), a Sec 301 suit in which the plaintiff employees attacked pref- erential seniority granted another employee group under a national col- lective-bargaining agreement, applying a statute of limitations analogous to Sec 10(b), the court held that the period began running when seniori- ty lists pursuant to the national agreement were first posted, or, absent such posting, when plantiffs knew or should have known of their lower seniority status 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD perseniority regarding shift preference more than 6 months before 19 September 1983. For all that the record shows, he may not even have been elected to his post before June 1983-let alone been ac- corded superseniority pursuant to a union request under the relevant provision. The Respondent Union, as the party asserting the 10(b) bar, has the burden on this issue,15 and it has not carried that burden under either the Eleventh Circuit's rule or our own. The maintenance allegation, which encompasses both the layoff provision in the contract and the shift preference provision in the incorporated agreement, is a different matter. Because there are no factual differences that permit us to distinguish the two cases on this point, we deem it advisable to explain in some detail our reasons for declining to embrace the apparent holding of Auto Warehousers with respect to unlawful maintenance of such su- perseniority clauses. As noted, the clause in Auto Warehousers was presumptively unlawful because, on its face, it pro- vided for the granting of preferences extending beyond layoff and recall, whereas the provisions in the instant case are unlawful because, on their face, they provide for the granting of superseniority to union officers without regard to whether they have grievance-processing duties or other duties related to on-the-job contract administration. 16 The Auto Warehousers court appeared to be of the view that, in determining whether the clause's presumptive unlawfulness was rebutted, the Board would neces- sarily look to "adequate business justification" for such preferences at the time the clause was execut- ed.17 This is simply not so. Unlike the clause in Bryan Mfg., the lawfulness of which depended on the union's majority at a particular point in time, there is no single critical point in time with respect to superseniority clauses. This point is perhaps most clearly made with re- spect to the type of superseniority clause violation found here. It is theoretically possible that at the time a particular collective-bargaining agreement was executed, the union officers accorded contrac- tual superseniority-for example someone called the "recording secretary"-could have had griev- ance-processing functions which, at midcontract, were given over entirely to stewards. Under such circumstances, the contracting parties might be able to submit evidence showing that maintenance of the clause was lawful at the time when the con- tract was entered into, but would be unable to es- tablish that it was lawful later on, when the record- ing secretary's functions changed.18 But even if the functions have never changed, the Board would not need to examine their nature at the time of con- tract execution to determine whether a clause was lawfully maintained during the 6 months preceding the filing of the charge. For superseniority based on union office, unlike natural seniority, which typically rests on the date of employee hire or transfer, is bestowed by a contractual fiat that ac- cords a preference for retaining or securing a given job on the basis of union office alone. Contractual supersemority based on union office inherently en- courages union support by means of discrimination, and it can be saved from illegality only if the con- tracting parties can establish that the favored union position imposes on its holder duties that are relat- ed to grievance processing or on-the-job contract administration so that the preference may serve the interest of all unit employees.I9 Thus, in the terms of Bryan Mfg.,20 the allega- tion that a superseniority clause has been unlawful- ly maintained is not "inescapably grounded on" events outside the 10(b) period, even if the clause was originally executed more than 6 months prior to the filing of the unfair labor practice charge. Indeed, this would be so whether we deemed an overinclusive superseniority clause to be invalid on its face or invalid only on the General Counsel's showing, by extrinsic evidence, that the clause ap- plied to persons lacking steward-like functions. As noted above, three courts of appeals have re- jected the Eleventh Circuit's analysis of the 10(b) issue in Auto Warehousers. The Second Circuit, dealing with an analogous argument for barring litigation of a nonuniform dues schedule on the grounds that the schedule had existed for more 15 See McKesson Drug Co, 257 NLRB 468 fn 1 (1981), and cases there cited 16 The allegation regarding enforcement of the shift preference provi- sion was added to the complaint by amendment during the hearing, and it was treated by the judge as an alleged violation based solely on the iden- tity of those being granted the preference It appears that the parties did not litigate the question whether it was unlawful insofar as it granted a preference beyond layoff and recall See NLRB v Teamsters Local 443 (Connecticut Limousine), 600 F 2d 411 (2d Cir 1979) (presumption that shift preference is unlawful may be rebutted by evidence that it gives a steward better on-the-job access to unit employees) No exception was taken to the judge's failure to find a violation on this aspect of the provi- sion 17 571 F 2d at 863 18 In Gulton Electra- Voice, supra, we overruled Electrical Workers IUE Local 623 (Limpco Mfg), 230 NLRB 406 (1977), enfd sub nom D'Amico v NLRB, 582 F 2d 820 (3d Cir 1978), insofar as it held that contractual supersemority could lawfully be granted "to those who do not perform steward or other on-the-job contract administration functions " Gulton Electro-Voice, supra, 266 NLRB at 408 This holding indicated that the lawfulness of a clause could not be judged on titles alone, and we specifi- cally noted that we were not necessarily suggesting that "the supersemor- ity accorded to the Limpco recording secretary would be unlawful" under the Galion standard because "she did perform some grievance functions " Id at In 9 19 Dairylea Cooperative, 219 NLRB 656, 658 (1975), enfd sub nom NLRB v Teamsters Local 338, 531 F 2d 1162 (2d Cir 1976) 20 362 U S at 422 ARVIN INDUSTRIES 757 than 6 months prior to the filing of the charge, re- jected the Auto Warehousers application of Section 10(b).21 It noted first that it need not "look into the past" to find the fee schedule unlawful on the ground that it is "unsupported by any presently ex- isting adequate business justification" and, second, that such a time-bar rule would be unduly "preclu- sive" because it would immunize the schedule from any union member's attack simply because of its long existence.22 In NLRB v. Auto Workers Local 1311 (Houdaille Industries)23 and in NLRB v. Harvey Hubble, Inc.,24 the Fourth and Sixth Cir- cuits have distinguished Auto Warehousers on the ground that the court there had dealt with a super- seniority provision it deemed merely "presumptive- ly unlawful," whereas it was clear after the Board's decision in Gulton Electro-Voice that such clauses are "invalid on their face" and thus litigable at any point in their existence under the principles of Bryan Mfg.25 We do not agree that a "presump- tively unlawful" clause is necessarily different from a clause that is "unlawful on its face" (but subject to a defense by the respondent union), but we read the courts' opinions as in essential agreement with the proposition that contract execution is not the triggering date for the application 'of Section 10(b) to a superseniority clause, because it is unnecessary to look back to events on that date to determine that the clause is unlawful. Our dissenting colleague does not necessarily question the correctness of the foregoing resolution of the 10(b) issue, but rather contends that we are compelled to dismiss the complaint because, in his view, we are faced with "adverse precedent," i.e., Auto Warehousers, in the circuit court in which "the case arose." We disagree. First, as explained above, the case is factually distinguishable from Auto Warehousers as to the en- forcement allegation and, as to the maintenance al- legation, two other circuit courts have concluded that the Board's intervening decision in Gulton Electro-Voice clarifies the theory of the violation in such a way to obviate any conflict with Auto Ware- housers. The Eleventh Circuit may well agree with that view. At the very least, those cases would provide a basis for requesting that court to reexam- 21 NLRB v Actors' Equity, 644 F 2d 939, 943 (2d Cir 1981) 22 Id 23 777 F 2d 1131, 1139-1140 (6th Cir 1985) 24 783 F 2d 1121 (4th Cir 1986) (on rehearing), cert denied 107 S Ct 573 (1986) 25 777 F 2d at 1140, 783 F 2d at 1123 Judge Haynsworth, who dissent- ed on another issue in Harvey Hubble, would not find a supersemority provision unlawful on its face, but would, in any event, find that Sec 10(b) "is triggered by an actual layoff based on a claim of super-seniority by a union official having no on-the-job responsibility for contract admin- istration " 783 F 2d at 1124 ine its decision.26 Thus, it is not entirely clear that we are faced with "adverse precedent," as our col- league contends. Second, it is also noteworthy that, although the case does arise in the Eleventh Circuit-because that is the circuit in which the unfair labor prac- tices occurred-the venue provisions of the Act are such that our Order is also potentially subject to review in other circuits. Under Section 10(f) of the Act, an aggrieved party can petition for review of a final order of the Board "in any circuit court of appeals of the United States in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia . . . ." Thus, if we were to dismiss the complaint, the individual Charging Party would be free to seek review in the District of Columbia Cir- cuit. Because we are finding the violations, the Re- spondent Union is the aggrieved party, and its venue choices would include not only those open to the Charging Party but also any circuit in which it is incorporated (i.e., resides) or in which it "transacts business." Although the Respondent Employer did not file exceptions, it should be noted that, had it done so, it would be free to file in the Seventh Circuit, where it is incorporated, and if it transacts business nationwide, all the cir- cuits would be open to it. See Stieberger v. Heckler, 615 F.Supp. 1315, 1364 (S.D.N.Y. 1985), vacated on other grounds sub nom. Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986) (noting "practical" reasons for the Board's nonacquiescence policy). It is thus apparent that we operate under a statute that simply does not contemplate that the law of a single circuit would exclusively apply in any given case. Our dissenting colleague acknowledges this to be a "legitimate concern" that raises "certain proce- dural and administrative difficulties," but he misses the point in characterizing these difficulties primar- ily as a problem of forum shopping. As noted, the broad venue provisions themselves implicitly ex- press a congressional view that is at odds with our colleague's approach. Moreover, if we were to follow that approach here and dismiss the com- plaint, the Board could conceivably find itself in the District of Columbia Circuit on the petition of the Charging Party. Were that circuit to find that Section 10(b) does not bar the complaint under the circumstances here-whether it views such a con- clusion as consistent with or contrary to Eleventh 26 If necessary , the Board could file an application for initial en bane hearing pursuant to the Eleventh Circuit's Local Rule 26 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Circuit precedent-we would presumably have to reconsider the case on remand.27 In light of this possibility, we fail to discern how our dissenting colleague's approach necessarily serves "to pro- mote better, efficient, and harmonious judicial ad- ministration of the National Labor Relations Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Company, Arvin Automotive, a Division of Arvin Industries, Inc., Fayette, Alabama, its officers, agents, succes- sors, and assigns, and the Respondent Union, United Automobile, Aerospace & Agricultural Im- plement Workers Union, Local 759, Fayette, Ala- bama, its officers, agents, and representatives, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting. Unlike my colleagues, I would abandon the Board's policy of nonacquiescence in adverse precedent in the circuit court where enforcement or review of the Board decision will be sought. Accordingly, as explained below, I would acqui- esce to the Eleventh Circuit's law as it applies to the facts of this case and dismiss the complaint. In the past it has been the Board's policy to de- termine whether to acquiesce in the contrary views of a circuit court of appeals, or with due deference to the court, to adhere to its previous holding. In- surance Agents (Prudential Insurance), 119 NLRB 768, 773 (1957). In adhering to this policy, the Board has not infrequently declined to follow the law of the circuit wherein enforcement or review of its decision will be sought. I have reevaluated this policy of nonacquiescence and on careful re- flection have decided that adherence to the Board's proper role within the Federal judicial and admin- istrative system compels abandonment of this policy. The judge, following the Board's nonacquies- cence policy, concluded that by the maintenance and enforcement of contract clauses granting su- 27 It is highly unlikely that the District of Columbia Circuit would apply the law of the Eleventh Circuit on review of the Order A good illustration of this point is the District of Columbia Circuit's recent deci- sion in Electrical Workers IBEW Local 474 v NLRB, 814 F 2d 697 (D C Cir 1987) The alleged unfair labor practice in that case occurred in Ten- nessee, within the Sixth Circuit The charging party union sought review of the Board's dismissal of the complaint in the District of Columbia Cir- cuit, and that court reversed and remanded the case to the Board in a decision that took issue with the positions of other circuit courts, includ- ing the Sixth Circuit, regarding the construction to be given the relevant statutory provision Id at 704, 710-714 See also id at 717 (Buckley, J , concurring) Thus, even though the case "arose in" Tennessee , as our dis- senting colleague treats that concept, it is quite apparent that the review- ing court did not view it as a case in which the precedents of the Sixth Circuit applied perseniority for purposes of layoff and shift prefer- ence to the Respondent Union's financial secretary and recording secretary, who are not responsible for grievances processing and on-the-job contract administration, the Respondent Union violated Sec- tion 8(b)(1)(A) and (2) of the Act. The judge re- jected the Respondent Union's argument based on NLRB v. Auto Warehousers, 571 F.2d 860 (5th Cir. 1978), that Section 10(b) barred his finding a viola- tion because the cause of action fully accrued when the contract was executed in March 1981 (more than 6 months before the filing of the charges).' The judge observed that the Board "has failed to follow the reasoning of the Fifth Circuit" and thus resolved the issue on the basis of Board precedent contrary to Auto Warehousers. I would abandon the policy of nonacquiescence. Therefore, the Fifth Circuit's reasoning in Auto Warehousers, supra, followed by the Eleventh Cir- cuit in Benson v. General Motors Corp., 716 F.2d 862 (11th Cir. 1983),2 is dispositive of the Respond- ent Union's 10(b) contention. I find that, under the analysis set forth in those cases, the allegations in the complaint are barred by Section 10(b) of the Act. Accordingly, although applying established Board precedent, I would not on the facts here find Section 10(b) a bar to finding a violation, I would dismiss the complaint. As set forth more fully in the judge' s decision, the following chronology of events gave rise to the instant case . The Respondents executed a collec- tive-bargaining agreement with effective dates of 2 March 1981 through 1 March 1984. That agree- ment provided that seniority be the determinative factor in cases of layoffs and recalls.3 The agree- ment's seniority provision provided that "the Fi- nancial Secretary, and the Recording Secretary shall be considered as being at the top of the se- niority list within the plant for layoff purposes."4 The agreement also provided that when practicable shift preference shall be guided by seniority.5 On 9 March 1981 the Respondents incorporated by ref- erence into their collective-bargaining agreement a letter of understanding, which established day-shift preference for four local union officers, including the financial secretary and the recording secre- tary. 6 ' The present case arose in Fayette, Alabama, located in the Eleventh and formerly the Fifth Circuit 2 The Eleventh Circuit accepts as precedent decisions of the Fifth Cir- cuit issued prior to the creation of the Eleventh Circuit Bonner v City of Prichard, 661 F 2d 1206 (11th Cir 1981) 3 Jt Exh I art VII, sec 4 4 Jt Exh I art VII, sec 13 5 Jt Exh I art VII, sec i I 6 The letter of understanding provided in pertinent part that Continued ARVIN INDUSTRIES 759 On 4 September 1983 Charging Party Gene Cobb was transferred from the day shift to the third shift because of the exercise of superseniority by the Respondent Union's recording secretary, James Dudley. The parties stipulated that Dudley has less seniority than Cobb, who has worked the Respondent Company's day shift for 19 years. The Respondent Union asserts that an unfair labor practice' finding was barred by Section 10(b) of the Act. In support of its position the Respond- ent Union relies on NLRB v. Auto Warehousers, supra, which denied enforcement of 221 NLRB 628 (1976), and Benson Y. General Motors, supra. The thrust of both cases is that the gravamen of the unfair labor practice occurs on the illegal grant of superseniority and that a later exercise of such se- niority does not constitute an unfair labor practice separate from its acquisition. Thus, in Benson, the Eleventh Circuit Court of Appeals stated that "I[fjor the purpose of determining when the § 10(b) period begins to run, we look to when plaintiffs either were or should have been aware of the injury itself, not to when plaintiffs became aware of one of the injury's, many manifestations." Simi- larly, in Auto Warehousers ' (cited in Benson), the Fifth Circuit Court of Appeals concluded that the legality of including a superseniority clause in a contract depended on the existence of an adequate business justification for such a provision at the time of execution. It thus concluded that mainte- nance of the contract provision alone did not con- stitute an unfair labor practice. The court further found that enforcement of a contract provision ac- cording shop stewards superseniority for purposes other than layoff or recall could be found illegal only if the initial grant of superseniority also violat- ed the Act. Because the initial grant occurred out- side the 10(b) period, the court held that Section 10(b) foreclosed a challenge to the continued en- forcement of the contract provision. On the basis of Benson and Auto Warehousers, the Respondent Union argues that the operative date in the instant case for 10(b) purposes is at the latest 9 March 1981-the date of the incorporation by ref- erence into the collective-bargaining agreement of the shift' preference understanding. Characterizing Cobb's 4 September 1983 transfer as a mere mani- festation of the alleged unlawful grant, the Re- spondent Union maintains that the enforcement of the superseniority provision vis-a-vis Cobb does In the event an employee on a shift other than the day shift is elect- ed to any of the four Union offices named below, the Company will transfer such officer, if the Union so requests in writing, to the day shift to a job which he has the ability to do. Such employee will remain on the day shift during the time he occupies such office not provide an independent ground for finding a violation within the 10(b) period. I agree with the Respondent Union that, under the analysis set forth in Benson and Auto Ware- housers, Section 10(b) acts as a bar to the finding of a violation in the instant case. However, as the judge correctly noted, the Board has not followed the reasoning of the Fifth and Eleventh Circuits in Auto Workers and Benson. On the contrary, it is the Board's well-established position? that the mainte- nance of a contract clause according superseniority to union officers who do not perform steward or other on-the-job contract administration functions is unlawful, and such maintenance and enforcement within the 6-month period before the filing of the charge is sufficient to defeat a defense based on Section 10(b). Under Board law, Section 10(b) be- comes operative when the legality of the supersen- iority clause is put in issue. As the Board stated in A.P.A. Transport Corp., 239 NLRB 1407, 1409 fn. 9 (1979), "[m]ere longevity of contractual language does not establish its legality." Therefore, I find that under Board precedent, the judge correctly re- jected the Respondent's 10(b) defense. Moreover, I remain convinced of the soundness of this prece- dent. The instant case thus plainly confronts the Board with the dilemma whether, in the face of adverse precedent in the circuit court in which the case arose (here the Eleventh Circuit) and where the Board will seek enforcement," the Board should acquiesce in the law of the circuit or adhere to the Board's own position. Presented with this dilemma in Insurance Agents, supra, the Board observed that it was "the Board's consistent policy for itself to determine whether to acquiesce in the contrary views of a circuit court of appeals or whether, with due deference to the court's opinion, to adhere to its previous holding until the Supreme Court of the United States has ruled otherwise."9 ' Ford Motor Co., 269 NLRB 250 (1984); Auto Workers Local 1131 (Houdaille Industnes), 268 NLRB 1468 (1984); Inmont Corp., 268 NLRB 1442 (1984); International Harvester Co., 268 NLRB 966 (1984); Harvey Hubble, Inc, 268 NLRB 620 (1984); Design & Mfg. Corp., 267 NLRB 440 (1983); Auto Workers (Scovill, Inc.), 266 NLRB 952 (1983); Actors' Equity Assn., 247 NLRB 1193 ( 1980), enfd. 644 F 2d 939 (2d Cir. 1981); A.P.A. Transport Corp., 239 NLRB 1407 (1979). 8 The Board's policy has been, and will continue to be, to seek en- forcement of its orders in the circuit in which the unfair labor practice arose. Therefore, for Board purposes, which circuit's law should apply is readily ascertainable. 8 I note two instances of the Board's nonacquiescence before Insurance Agents In Bethlehem Steel Co., 89 NLRB 1476 (1950), the Board denied a motion to vacate and set aside. In so doing the Board noted a contrary circuit case, but added that "with due respect for" the court's opinion, the Board is constrained to adhere to its original view until the Supreme Court has passed on the issue. In Morand Bros Beverage Co., 99 NLRB 1448 (1952), the Board decid- ed a case on remand from the Seventh Circuit Court of Appeals. In that Continued 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 119 NLRB at 773. The Board defended this policy on the ground that "[o]nly by such recognition of the legal authority of Board precedent, will a uni- form and orderly administration of a national act, such as the National Labor Relations Act, be achieved." 10 Although since Insurance Agents the Board has considered numerous cases involving a clash be- tween Board law and circuit law, it has not further elaborated on its policy of nonacquiescence or the rationale therefor." Instead, after an almost ritual- case the Board found that the implications of the court's position that the right of employers to lockout is a necessary corollary of the right of em- ployees to strike, disclosed its "inherent defects " On review the court enforced the Board's order, but not without first admonishing the Board for rejecting the court's position as follows (204 F 2d 529 at 532-533) Before considering the only question properly presented at this stage we think it not unwise to recall a basic tenet in our federal system of administrative practice and review The position of any administrative tribunal whose hearing, finding, conclusions and orders are subject to direct judicial review, is much akin to a District Court That is to say, it is the "inferior" tribunal, whose decisions, both substantive and, in some instances, adjective, are sub- ject to review and consequent approval or disapproval by the re- viewing body The full implication of this relationship is realized when, as here, the occasion arises for the reviewing court to state what it believes to be the substantive law applicable to a particular controversy but find that the lower tribunal has not conclusively found the facts to which this law should be applied The result then, in view of the rule that a reviewing court shall not enter initial find- ings of fact, is an order remanding that cause "for further proceed- ings in conformity with the decision of this court " The pronounce- ments of the reviewing court are then known in the vernacular as "the law of the case," i e, they are the rules to govern the particular dispute in hand, unless, of course, the decision of the reviewing court is declared erroneous by a tribunal of competent jurisdiction holding a still more superior position in the judicial pyramid In such a situation it behooves the inferior arbiter to exercise great care that "the law of the case" is applied to the facts of the case when they have been precisely determined by it This is so even when it finds itself in well founded disagreement with its reviewer [E]xpenence has taught that causes are disposed of most expeditious- ly when the correction of errors is left to the superior tribunals and those enjoying judicial or administrative inferiority studiously en- deavor to comply with the mandate issued to them The application of these principles was neglected in three in- stances upon remand of these proceedings to the Board The most obvious and most troublesome is the express disapproval of our prior opinion by four members of the Board This position was abandoned by the General Counsel in his brief and argument before this court Nevertheless its presence in the record implies an attitude on the part of these members to have their ultimate judgment that petition- ers had engaged in unfair labor practices recognized in any event This is an unwholesome outlook which not only fails to take cogni- zance of the mentioned principles of our administrative-judicial system but ignores the fact that the interpretation and application of the Act is vested not only in the Board but also the Courts of Ap- peals and the Supreme Court It serves no purpose other than to im- pinge upon the respect which deliberations of the Board are custom- arily accorded [Footnote omitted] 10 The policy of nonacquiescence as explained in Insurance Agents closely resembles that adopted by the Tax Court also in 1957, in Arthur L Lawrence, 27 TC 713 (1957) The Tax Court's decision drew criticism in scholarly reviews, e g, Note, "Heresy in the Hierarchy Tax Court Rejection of Court of Appeals Precedents," 57 Colum L Rev 717 (1957) Moreover, the Tax Court's position had been specifically rejected by the Sixth Circuit Court of Appeals before the Lawrence decision issued See Stacey Mfg. Co, 237 F 2d 605 (6th Cir 1956) As noted, infra, the Tax Court has since abandoned its policy of nonacquiescence i i For example, in Armco Steel Corp, 183 NLRB 207 (1970), the Board merely reiterated its view that "uniform administration of the Act" re- quired the Board to adhere to its position despite contrary circuit prece- istic expression of "due deference to" or "respect for" the contrary opinion of the circuit court ac- companied by a reference to Insurance Agents and its progeny, the Board has routinely decided these cases according to its own precedent.12 Nearly as uniform as the Board 's adherence to its policy of nonacquiescence has been the circuit courts' rejection of it. 13 The Second Circuit's re- sponse to the Board 's policy-"The position of the Board is one in which we cannot acquiesce "-typi- fies judicial reaction. 14 Thus, of the circuit courts that have considered the Board 's policy, not one has accepted its validity . 15 On the contrary, the courts have criticized the Board 's refusal to acqui- esce in the law of the circuit as "intolerable,""' "outside the law," 17 and "contumacious ."' 8 The gist of the circuit court opinions-that Board deci- sions deserve deference, but that appeals court de- cisions demand acquiescence-derives from the Su- preme Court's decision in NLRB v. Brown, 380 U.S. 278 (1965); FTC v. Colgate-Palmolive Co., 380 U.S. 374 ( 1965); and Volkswagenwerk Aktiengesell- schaft v. FMC, 390 U.S. 261 (1968). These cases es- tablished that even in the review of the decision of administrative agencies, the courts are the final au- thorities on issues of statutory construction. This conclusion ultimately rests, of course , on the funda- dent I note former Member Jenkins' dissent from the majority's adher- ence to Board precedent in Armco He observed that "as a matter of policy and judgment, I cannot see that it in any way effectuates the poli- cies of the Act to proceed with this case to a wholly predictable reversal by the Court of Appeals which has previously determined the matter contrary to our views." 12 For example, see Novak Logging Co, 119 NLRB 1573 (1958), and Iowa Beef Packers, 144 NLRB 615 (1963) Also see General Motors Corp, 158 NLRB 1723, 1726 (1966), Machinists District 9 (McDonnell Douglas), 171 NLRB 234, 236 (1968) 13 See Ithaca College v NLRB, 623 F 2d 224 (2d Cir 1980), Allegheny General Hospital v NLRB, 608 F 2d 965 (3d Cir 1979), NLRB v Black- stone Co, 685 F 2d 102 (3d Cir 1982), NLRB v A Duie Pyle, Inc, 730 F 2d 119 (3d Cir 1984), Hi-Craft Clothing Co v NLRB, 660 F 2d 910 (3d Cir 1981), PPG Industries v NLRB, 671 F 2d 817 (4th Cir 1982), NLRB V. Gibson Products Co., 494 F 2d 762 (5th Cir 1974), Federal-Mogul Corp v NLRB, 566 F 2d 1245 (5th Cir. 1978), Kitchen Fresh, Inc. Y. NLRB, 716 F 2d 351 (6th Cir 1983), Beverly Enterprises v NLRB, 727 F 2d 591 (6th Cir 1984), Mary Thompson Hospital Y. NLRB, 621 F 2d 858 (7th Cir 1980), NLRB v HMO International, 678 F 2d 806 (9th Cir 1982), and Suburban Yellow Taxi Co v NLRB, 721 F 2d 366 (D C Cir 1983) Also see NLRB v Eastern Smelting, 598 NLRB 666 (1st Cir 1979), City of Cleveland v FPC, 581 F 2d 344 (1977), and Morand Bros Beverage, supra Criticism of the Board's policy of nonacquiescence has not been confined to the courts see Kafker, Nonacquiescence by the NLRB Combat versus Collaboration, 3 Lab. Law 17 at 137 (1987), Ferguson and Bordoni, NLRB v the Courts The Board's Refusal to Acquiesce in the Law of the Federal Circuit Courts of Appeals, Proc NYU 35th Annual Conf on Labor 195 (1983) The issue was also considered in Zimmerman and Dunn, Re- lations Between the NLRB and the Courts of Appeals A Tale of Acrimony and Accommodation , 8 Employee Re] J 4 (1982) 14 Ithaca College v NLRB, supra at 228 is See fn 13. I do, however, note that Judge Wright's concurring opinion in Suburban Yellow Taxi Co. v NLRB, supra at 375, apparently approves of the Board's past practice of not acquiescing in circuit law ie Ithaca College v NLRB, supra 17 Allegheny General Hospital Y. NLRB, supra re Beverly Enterprises v NLRB, supra ARVIN INDUSTRIES mental proposition that "[i]t is emphatically the province and duty of the judicial department to say what the law is" Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). The Third Circuit's opinion in Allegheny General Hospital v. NLRB, supra, is representative of the circuit decisions that have specifically addressed the issue of the Board's nonacquiescence.19 In that case the court explained (608 F.2d at 970): A decision by this court, not overruled by the United States Supreme Court, is a decision of the court of last resort in this federal judi- cial circuit. Thus our judgments . . . are bind- ing on all inferior courts and litigants in the Third Judicial Circuit, and also on administra- tive agencies when they deal with matters per- taining thereto. We express no personal criti- cism of an independent federal agency that re- fuses to accept a judicial determination of this court. We attribute no ulterior motives to the distinguished members of the Board who have publicly, although respectfully, expressed- dis-, agreement with this court. But the Board is not a court nor is it equal to this court in mat- ters of statutory interpretation. Thus, a dis- agreement by the NLRB with a decision of this court is simply an academic exercise that possesses no authoritative effect. It is in the court of appeals and not in an administrative agency that Congress has vested the power and authority to enforce orders of the NLRB. 29 U.S.C. Sec. 160(e) . . . . [I]t is in this court by virtue of its responsibility as the statutory court of review of NLRB orders that Con- gress has vested a superior power for the inter- pretation of the congressional mandate. Con- gress has not given to the NLRB the power or authority to disagree, respectfully or other, wise, with decisions of this court. See Volkswa- genwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 272, 88 S.Ct: 929, 19, L. Ed. 2d 1090 (1968). For the Board to predicate an order on its disagreement with this court's interpretation of a statute is for it to operate outside the law. Such an order will not be enforced. 19 In this connection I note that the Fifth Circuit, whose law serves as the governing body of precedent in the Eleventh Circuit, has had occa- sion to consider the Board's policy of nonacquiescence and has rejected it. NLRB v Gibson Products, supra, and Federal-Mogul Corp. v. NLRB, supra. Moreover, in Enerhaul Inc. v. NLRB, 710 F.2d 748 (11th Cir. 1983), the Eleventh Circuit found that the Board's reliance on a legal theory which that court has repeatedly rejected was unreasonable. As a consequence, the court reversed the Board's dismissal of an application for attorney's fees and expenses under the Equal Access to Justice Act, 5 U.S.C. § 504. 761 The Ninth Circuit, in its recent decision in NLRB Y. Ashkenazy Property Management Corp.,2° sharply criticized the Board for its policy of nonac- quiescence. Characterizing this policy as "unac- ceptable," the court stated that- "[a]dministrative agencies are not free to refuse to follow circuit precedent in cases originating within the circuit, unless the Board has a good faith intention of seek- ing review of the particular proceeding by the Su- preme Court." Although the court refers to "ad- ministrative agencies," supra, and elsewhere to the "Board," its comments have significance for both judicial and prosecutive arms of the NLRB. The Board's General Counsel has no authority to issue and prosecute a complaint bottomed on a legal po- sition at variance with the law of the relevant cir- cuit. If the Board's General Counsel nevertheless acts in defiance of law, the Board lacks power to place its imprimatur on such defiance. As the Third Circuit stated in Allegheny Hospital, supra, "A deci- sion by this court is . . . binding on all inferior courts and litigants in the [circuit]" (emphasis added). This Board's General Counsel functions only as the Board's agent in enforcement and review litigation in the circuits. The General Counsel is thus powerless to engage in appellate litigation without Board authorization. So long as this Board, by refusing to adopt a policy of acquiescence, continues to authorize the issuance of complaints and the conduct of appellate litiga- tion in defiance of rulings of the several circuits, it will continue to risk remedial court action directed against itself. Such action is foreshadowed in Ash- kenazy, supra, where the court concludes by an- nouncing: "[A]ny future act of `nonacquiescence' should be dealt with by this Court in the specific context in which it occurs so that we may address the agency's particular violation of the rule of law and fashion a remedy that is appropriate in light of all the relevant circumstances." - The General Counsel's Office may continue to issue complaints contrary to the law of the relevant circuit. That fact makes conceivable the possibility that aggrieved involuntary litigants will seek man- damus against the Board's General Counsel. See, e.g., Deering Milliken, Inc. v. Johnston, 48 LRRM 3162 (4th Cir. 1961). I have reviewed the Board's policy of nonac- quiescence in the law of the circuits in light of its stated rationale and its consistent repudiation by the circuit courts and conclude that recognition of the Board's proper role within the Federal judicial and administrative system compels abandonment of this policy. Although it is true that the relation of 20 Docket No. 84-7680 (9th Car May 8, 1987). 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the courts and administrative agencies is not com- pletely assimilable to the relationship between upper and lower courts,21 it is equally true that Congress has not endowed this Agency with an au- thority or jurisdiction equal to or superior to that of the courts of appeals. On the contrary, Con- gress, in Section 10(e) and (f) of the Act, explicitly vested the courts of appeals with "power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Board." Experience confirms that which is implicit in this grant of authority: a Board decision will be enforced by a circuit court only when it accords with circuit precedent.22 Thus, however attractive the policy of nonacquiescence may have been as a response to the perceived need to promote a national labor policy, the simple fact remains that such a policy is legally untenable. It conflicts with fundamental tenets of our Federal system and ignores the plain language of the stat- ute. What is more, over 25 years' experience with the policy of nonacquiescence has amply demonstrated that the uniform administration of the Act-the commendable objective of the policy-does not and will not result from its applicants. For proof one need search no further than the instant case. In fact, rather than promote uniformity, the Board's policy of nonacquiescence has fostered a bifurcated system in which litigants willing to pursue their case to the appellate level are able to avoid Board orders.23 Thus, the Board's policy has had the un- intended effect of needlessly protracting litigation, establishing a two-tier system of labor law in the same judicial jurisdiction, encouraging disrespect for Board orders, and antagonizing the courts. The two-tier system places an undue burden on those litigants who lack the resources to pursue matters to the circuit court level. Even worse, it compels them to expend resources in litigating cases in which it is clear that the appropriate circuit will not enforce the Board's order. I believe it inappro- priate for the Board to continue this practice. In abandoning the past policy of nonacquies- cence, I am aware that certain procedural and ad- ministrative difficulties may ensue.24 For example, 21 See FCC v Pottsville Broadcasting Co, 309 U S 134 (1940) 22 See fn 13, supra 23 Thus, the contention that acquiescence in the law of the circuit will lead to many interpretations of the Act and should therefore not be adopted ignores the fact this is already the case Whenever a circuit adopts a view of the law contrary to the Board's, it in effect means that a Board order which is not based on circuit law will not be enforced in that circuit 24 I do not concede the inevitability of these problems The experience of the Tax Court, as noted at fns 10 and 28 is instructive The Tax Court the potential for forum shopping by an aggrieved party under Section 10(f), as illustrated by the ma- jority in their decision, is a legitimate concern.25 Yet it cannot seriously be argued that this concern in any way warrants adherence to a policy that is essentially ultra vires. Similarly, administrative con- venience does not justify the Board's acting outside the law. Accordingly, cognizant of the Board's proper function and role in the judicial and admin- istrative process, I acknowledge that, while the Board's opinions are entitled to great deference,26 the Board must acquiesce in the law of tribunals having authority and jurisdiction superior to the Board's. In abandoning the policy of nonacquiescence, I emphasize that I do not abandon the Board's goal of achieving a uniform labor policy, nor do I abdi- cate the Board's responsibility as "the principal ar- biter of federal labor policy";27 rather, I simply recognize and accept the congressional limitation on the Board's authority as that arbiter. According- ly, I will henceforth acquiesce in the law of the circuit in which the case arose, even if it requires that a result obtain that is contrary to Board law. I shall continue, as I have done here, to articulate Board law and the grounds for the Board's dis- agreement with the appellate court precedent that, in my opinion, the Board is constrained to follow. 211 Furthermore, in circuits that have no law on point, I will continue to press for adoption of the Board's position. The Board will of course abide by its own precedent in cases that arise in circuits that have accepted that precedent.29 Adop- abandoned its policy of nonacquiescence for one of acquiescence and has apparently not met with substantial difficulties in so doing 25 The most frequently raised scenario is that of a Board decision ad- verse to local circuit precedent being reviewed in a circuit that has ap- proved the Board's position The resolution of this and other potential problems arising from forum shopping must ultimately rest with the cir- cuit courts of appeals and the Supreme Court under a policy of acquies- cence The Board would apply the law of the circuit in which the unfair labor practice occurred and subsequently seek enforcement of its order in the same circuit I do not anticipate criticism for this practice should the case wind up on review in a different circuit See, for example, Steelwork- ers v NLRB, 377 F 2d 140, 141 (D C Cir 1966) Also see the observa- tions of Ferguson and Bordoni , NLRB vs the Courts, supra In any event, a disagreement between two circuit courts of appeals is a dispute between bodies of equal authority The Board on the other hand lacks any legal authority for refusing to acquiesce in the circuit law. 26 See, for example, Ford Motor Co v NLRB, 441 US 488 (1979), NLRB v iron Workers Local 103, 434 U S 335 (1978) 27 Bill Johnson's Restaurants v NLRB, 461 U S 731, 750 (1983) (Bren- nan, J , concurring) 28 I note that, for reasons similar to those on which I rely here, the Tax Court in 1970 abandoned the past policy of nonacquiescence that, like the Board, it had adopted in 1957 See Arthur L Lawrence, 27 TC 713 (1957), and Golsen v Commissioner, 54 TC 742 (1970) I further note that the Tax Court's adoption of following circuit precedents has appar- ently not presented the insurmountable difficulties that had led to the original policy of nonacquiescence 28 The instant case illustrates this policy In the Fifth and Eleventh Circuits I will acquiesce in their interpretations of Sec 10 (b) as explained Continued ARVIN INDUSTRIES tion of this policy would enable the Board simulta- neously to formulate a nai.ional labor policy, to preserve its ability to create a conflict in the cir- cuits in order to obtain a grant of certiorari, to take cognizance of the Board's proper relation with the courts of appeals, and to promote better, efficient, and harmonious judicial administration of the Na- tional Labor Relations Act, particularly by de-' creasing useless litigation. This acquiescence policy would not, of course, prevent the Board from seeking certiorari from an adverse decision of a circuit court, nor would it prevent the Board from applying Board law to cases that are factually distinguishable from ad- verse circuit precedent. Finally, I would not neces- sarily acquiesce in a circuit's precedent in the event the circuit has expressed a willingness to reconsider its rule of law. 30 Accordingly, while for the reasons set forth above and in previous Board decisions, I respect- fully disagree with the Eleventh Circuit's construc- tion of Section 10(b) of the Act as it applies to the facts of the instant case, I am constrained to dismiss the complaint.31 in Auto Warehousers and Benson, but express my disagreement with those decisions; in the Second Circuit, which has accepted the Board 's position (see Actors' Equity, supra), I will continue to resolve 10(b) issues pertinent to the maintenance and enforcement of supersenionty clauses on the basis of what I regard as sound Board precedent; in other circuits I will re- solve these 10(b) issues on the basis of existing Board precedent and seek thereby to persuade those circuits to adopt the Board's position so My colleagues suggest that the Eleventh Circuit may be willing to reconsider the decision in Auto Warehousers in light of subsequent deci- sions from other circuits distinguishing or rejecting that decision See NLRB v. Actors' Equity, 644 F.2d 939, 943 (2d Cir 1981), NLRB v. Auto Workers Local 1311 (Houdaille Industries), 777 F.2d 1131, 1139-1140 (6th Cir. 1985); NLRB v. Harvey Hubble, Inc, 783 F.2d 1121 (4th Cir 1986) (on rehearing), cert. denied 55 U.S.L.W. 3392 (U S. Dec. 1, 1986) (No. 86-334). Such a possiibility, which exists in every case, although wel- come, would have no effect on an acquiescence policy Unless and until the Eleventh Circuit does in fact abandon its view and embrace the Board's application of Sec. 10(b) to supersemority clauses, an acquies- cence policy necessarily requires the application of the law of the circuit at the time of the Board's decision. 31 Accordingly, I find it unnecessary to pass on the substantive allega- tions of the complaint, Virginia L. Jordan, Esq., for the General Counsel. Ronald R. Snyder, Esq. (Roberts, Ryder, Rogers & Scism), of Indianapolis, Indiana, for the Respondent Company. John C. Falkenberry, Esq. (Ste)vart, Falkenberry & What- ley), of Birmingham, Alabama, for the Respondent Union. Mr. Gene Donald Cobb, appearing pro se. DECISION STATEMENT OF THE CASE HowARD I. GROSSMAN, Administrative Law Judge. The charges in Cases 10-CA-19585 and 10-CB-4175 were filed on September 19, 1983, by Gene Donald Cobb (Cobb or the Charging Party). A consolidated complaint 763 issued on October 27, 1983, alleging that Arvin Automo- tive, a Division of Arvin Industries, Inc. (Respondent Company)' and United Automobile, Aerospace & Agri- cultural Implement Workers Union, Local 759 (Respond- ent Union) maintained a contract granting superseniority for layoff purposes, inter alia, to Respondent Union's fi- nancial secretary and recording secretary who do not perform grievance processing and on-the-job contract administration duties. As amended at the hearing, the complaint also alleges that Respondents incorporated by reference into their contract a letter of understanding granting day-shift superseniority to the officers, and that about September 1, 1983, by application of this letter of understanding, Respondent Union caused Respondent Company to transfer, the Charging Party from the day shift to the third shift and accorded day-shift preference to the Union's recording secretary, who had less seniori- ty than the Charging Party. By engaging in such acts, the complaint further al- leges, Respondent Company violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act), and Respondent Union violated Section 8(b)(l)(A) and (2) of the Act. A hearing was conducted before me on this matter in Birmingham, Alabama, on December 21, 1983. On the entire record, including briefs filed by the General Coun- sel and Respondent Union, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent Company is an Indiana corporation with an office and place of business at Fayette, Alabama, where it is engaged in the manufacture of automobile parts. During the calendar year preceding issuance of the complaint, a representative period, Respondent Company sold and' shipped from its Fayette, Alabama facility fm- ished ' products valued in excess of $50,000 directly to customers located outside the State of Alabama. The pleadings establish and I find that Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings as amended at the hearing establish and I find that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Collective-Bargaining Agreement Respondents have been parties to a collective-bargain- ing agreement, effective from March 2, 1981, until March 1, 1984, which provides that seniority shall be the determining factor in cases of layoffs and recall. The ar- ticle on seniority also contains the following section: ' Respondent Company's name appears as amended at the hearing. 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The President, the Chairman of the Bargaining Committee, the Financial Secretary, and the Re- cording Secretary shall be considered as being at the top of the seniority list within the plant for layoff purposes (Jt. Exh. 1, sec. 13). The agreement also provides that shift preference shall be guided by seniority when practicable (id., sec.11). About March 9, 1981, Respondents incorporated by ref- erence into the bargaining agreement a letter of under- standing reading in pertinent part as follows: In the event an employee on a shift other than the day shift is elected to any of the four Union offices named below, the Company will transfer such offi- cer, if the Union so requests in writing, to the day shift to a job which he has the ability to do. Such employee will remain on the day shift during the time he occupies such office. The four offices are the following: (1) President (2) Financial Secretary (3) Recording Secretary (4) Chairman of the Bargaining Committee As noted above, the complaint alleges as unlawful only the grant of superseniority to the financial secretary and the recording secretary. The agreement also contains a section requiring Re- spondents to deduct periodic dues and initiation fees from each employee who signs authorization therefor, and to submit same to the Union (id., art. III). B. Transfer of Cobb from the Day Shift to the Third Shift The Charging Party had been on the day shift for 19 years, and had been a union member for 16 years. He was the Union's financial secretary and treasurer from 1968 until 1983, and participated in negotiations leading to the current contract. On September 4, 1983, he was transferred to the third shift. He received 20 cents more per hour, the shift differential accorded employees on the third shift. Cobb filed a grievance,2 and testified to a conversation thereafter with Respondent Company's per- sonnel manager, John Gary. According to Cobb, Gary said that the transfer was mandated by the letter of un- derstanding requiring that the four union officers named therein be on the day shift, and that one employee had to be transferred to the third shift "out of line of seniori- ty."3 The parties stipulated that the recording secretary at that time, James Dudley, had less seniority than Cobb. 2 Cobb's testimony suggests that another employee also filed a griev- ance Counsel for the General Counsel announced in her opening state- ment that two employees were transferred to the third shift, but that only Cobb's transfer was alleged to be unlawful 9 Counsel for the General Counsel announced in her opening statement that union elections took place in May 1983 Union President Don R Wright testified that Cobb told him that he did not intend to seek reelec- tion I infer that Cobb's transfer took place after he was no longer finan- cial secretary, based on Gary's explanation to Cobb C. Duties of the Financial Secretary-Treasurer4 and the Recording Secretary 1. Summary of the evidence a. The Union's constitution and bylaws Following is a summary of the financial secretary's duties as set forth in the union constitution: 1. Receives moneys due the Union and issues receipts therefor, including receipts for checks from the Compa- ny representing checkoff of union dues, and deposits same in banks with the treasurer. 2. Writes all checks drawn on union funds, and issues reports concerning same. 3. Reports to the International on funds due it, makes such payments, receives applications for membership, and reports to the applicant concerning action on the ap- plication; monitors distribution of union publications and documents to members. 4. Maintains membership records, and furnishes the International with the names and addresses of officers. 5. Maintains property records, notifies members of ar- rears in indebtedness, and submits to audits by the trust- ees or the International. 6. Submits to penalty of suspension for failure to comply with duties. 7. Participates as a member in the union executive board (Jt. Exh. 3, art. 38, sec. 5; art. 40, secs. 4-10). The treasurer gives receipts for moneys received, de- posits union funds in banks, signs checks together with the union president, gives financial reports at regular meetings, and submits to audits (Jt. Exh. 3, art. 40, sec. II). Following are the listed duties of the recording secre- tary: 1. Records minutes of proceedings, distributes incom- ing correspondence, and brings to the attention of the membership those matters requiring action. 2. Supplies the International with copies of existing contracts, classifications, and wage rates, and any other information that the International could use in bargain- ing. 3. Participates as a member of the Union's executive board (Jt. Exh. 3, art 38, sec 5; art. 40, sec. 3). The bylaws give the executive board authority to make disbursements in limited amounts, and to conduct special meetings. All recommendations and decisions are referred to the next general membership meeting , and the recording secretary keeps minutes of the executive board meeting (Jt. Exh. 4). b. Testimonial and other documentary evidence Cobb testified that the financial secretary receives moneys due the Union, pays union bills, issues receipts, sends financial and income reports to the International and the union trustees, and pays all vouchers for "lost 4 The parties stipulated that the positions of financial secretary and treasurer had been combined into one job, pursuant to the union constitu- tion For the sake of convenience , the position will be referred to as "fi- nancial secretary " ARVIN INDUSTRIES time." He keeps an up-to-date mailing list, and makes certain that all dues are paid. In addition, the financial secretary prepares and files the necessary Federal and state tax forms for the Union, a nonprofit organization. He participates in audits of the Union's books, together with the International, and pays the monthly per capita tax to the International. He collects donations, and is a member of the Community Action Program, which sup- ports politicians favorable to labor organizations. The fi- nancial secretary maintains membership lists, and passes out membership cards. The same officer is also responsible for supervision of the checkoff provision of the collective-bargaining agree- ment. According to Cobb, every month he received a computerized list of dues that had been deducted. On oc- casion, there were errors in the list, and Cobb would at- tempt to get the Company to correct them. New mem- bers signed a card that authorized dues deduction on the top of the card, and that was delivered to the Company. Although it was the financial secretary's responsibility to do this, other officers also did so. The bottom part of the card is retained by the Union for its files. When Cobb was financial secretary, he had regular on- the-job contact with the recording secretary with respect to "lost time" vouchers for members, Such vouchers had to be signed by the union president and recording secre- tary before the financial secretary could issue a check. Cobb testified that he saw a representative of manage- ment once or twice a month in connection with all his activities, including donations. The total monthly time in- volved in these meetings was about 1 hour. Cobb averred that visits with management that concerned computer errors in the checkoff list took place two or three times every 6 months. Cobb explained the grievance process as a 3-step pro- cedure. The grieving employee first approached his com- mitteeman, and Cobb handled several grievances as a temporary committeeman. He never did so as financial secretary. The union officer principally concerned with grievances was the chairman of the bargaining commit- tee. Union International Representative Donald O. Cromer, testifying with the assistance of a union working manual (R. Exh. 2), added some details to Cobb's testi- mony. In connection with checkoff, the financial secre- tary maintains a card system showing whether the Com- pany had missed anybody, and whether provisions for "escape" from checkoff were followed. Cromer asserted that management had to have "access" to the financial secretary to correct computer errors in the check off. If a member is due a refund because of an excessive deduc- tion,,the financial secretary does this on the day shift, be- cause that "is where the action is." Cromer identified union vouchers used to validate pay- ments to members for lost time and expenses, and con- firmed that the financial secretary signs such checks only after voucher approval by the president and the record- ing secretary. The International representative testified that it was more "efficient" to have the financial secre- tary on the day shift, because two-thirds of the employ- ees are normally assigned to that shift. It is also more convenient for the financial secretary to enforce the 765 checkoff provisions of the contract , as most of the com- pany representatives handling those matters are assigned to the day shift. The incumbent financial secretary at the time of the hearing, Bobby Gardner, added that the presence of the financial secretary on the day shift was necessary when the Union's president was absent. The day shift had 60 to 65 percent of the employees, and it was more efficient for the financial secretary to be present at that time. Em- ployees usually submit lost time vouchers to him in be- tween shifts. Authorizations for checkoff from new mem- bers are delivered to the personnel office. Gardner's testimony on the amount of time required to deal with management about checkoff problems is not entirely clear. He testified initially that the Company's payment of dues collected comes to the Union once a month, and that the Union returns a receipt for this. Some deductions are missed, and the Company submits a second check about a week later , and the Union again returns a receipt. New authorization cards are turned in by Gardner or by the union president. Asked how fre- quently he met with management in administering the checkoff provision of the contract, Gardner answered, "I would say roughly, one to two times a week . Maybe once a week would be closer." Gardner averred that he met with Personnel Manager Gary three times during the week of the hearing, "All about check offs?" he was asked. "Cards and things like that," Gardner replied. Union President Wright said that he needed daily con- tact with the financial secretary because of bills that had to be paid and vouchers that required signature.. Occa- sionally, Wright holds an executive board meeting in- between regular union meetings, and the financial secre- tary and recording secretary are required to be at that meeting. 2. Factual analysis The central factual issue is the amount of on-the-job time that the financial secretary and recording secretary devote to matters that are "directly related to administer- ing the collective-bargaining agreement." Gulton Electra Voice, 266 NLRB 406, 409 (1983). The Union's general- ized arguments about the "convenience" and "efficiency" that result from having those officers on the day shift are not relevant. Of the many activities described above, the only ones related to the collective-bargaining agreement are those concerning checkoff. There is nothing in that agreement about the other duties of the financial secretary and the recording secretary. For example, although there is some evidence of on-the-job activity by the financial secretary and the recording secretary concerning vouchers and payments to members for "lost time," there is nothing in the collective-bargaining agreement concerning this ac- tivity. (Jt. Exh. 1.) The evidence is conflicting regarding the amount of time spent by the financial secretary in administering the checkoff provisions of the contract. It is clear from the testimonies of Cobb and Gardner that the financial secre- tary receives a computerized list from the Company once a month showing deductions for checkoff, and a re- 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mittance for which the Union submits a receipt. Gard- ner's testimony suggests, although it does not positively affirm, that there is an error almost every month in this computerized list, and that a second list and remittance are submitted by the Company Cobb's testimony at- tributes a lesser degree of error to the Company's com- puter. Both Cobb and Gardner agree that new authorization cards must be delivered to the Company, but they also both agree that the Union's president as well as the fi- nancial secretary do this. Because this is a mere formali- ty, the record shows no reason it could not be done by any union agent during business hours or by mail. As set forth above, Gardner testified that he met with management about checkoff matters "roughly one to two times a week. Maybe once a week would be closer." But in other testimony Gardner suggested that only two computer sheets come from the Company each month on checkoff, the initial sheet and a second one about a week later. Even this amount of computer error seems exag- gerated, but, assuming it to be true, why would Gardner be meeting with management about checkoff matters every week of the month. I conclude that Gardner's tes- timony on the amount of time spent with management by the financial secretary on checkoff matters is exaggerat- ed. Although he claimed to have met with management three times during the week of the hearing, his testimony shows that these meetings dealt in part with matters other than dues-authorization cards. Cobb's testimony is more realistic. As financial secre- tary, he met with management on all matters about once or twice a month for an aggregate monthly time of about 1 hour, but only saw the company officials every 2 to 3 months about checkoff subjects. This lesser degree of error that Cobb attributes to the Company's computers is more probably true than the almost constant error sug- gested by Gardner. Indeed, if the latter's estimate is cor- rect, the Company might be better off with a manual system of bookkeeping. I credit Cobb's testimony on this subject, and find that the financial secretary received computerized lists of dues deductions and a remittance on a monthly basis, and occasionally consulted with management about errors. In addition, either he or the Union's president delivered new dues-authorization cards to the Company, a routine activity that can be performed by any union agent or by mail. The record is devoid of any evidence that the record- ing secretary participates in administration of the check- off provision of the collective-bargaining agreement. D. Legal Analysis and Conclusions Respondent Union argues that the finding of a viola- tion is barred by Section 10(b) of the Act because the cause of action "fully accrued" in March 1981, when the contract was executed, more than 6 months prior to the filing of the charges here. The Union relies on Machinists Local Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960), and NLRB v. Auto Warehousers, 571 F.2d 860 (5th Cir. 1978), enf. denied 227 NLRB 628 (1976). In the latter case, the Board concluded that a steward's bid for superseniority within the 10(b) period constituted renew- al of an unlawful superseniority clause executed outside that period. The Board has failed to follow the reasoning of the Fifth Circuit in Auto Warehousers. In finding that mainte- nance of a superseniority clause in a contract was unlaw- ful, the Board stated that "[m]ere longevity of contrac- tual language does not establish its legality." A.P.A. Transport Corp., 239 NLRB 1407, 1409 fn. 9 (1979). More recently, the Board adopted an administrative law judge's conclusion that Section 10(b) is not a bar to de- termination of the validity of a superseniority clause, and that that section of the Act only becomes operative when the legality of the clause is put in issue. Auto Workers Local 561 (Scovill, Inc.), 266 NLRB 952, 959 (1983), and authorities cited therein. The Court of Appeals for the Second Circuit has also declined to follow the rule of the Fifth Circuit in Auto Warehousers. NLRB v. Teamsters Local 443, 600 F.2d 411, 413 fn. 4 (2d Cir. 1979), enfg. as modified 235 NLRB 1350 (1978). The same court later reaffirmed this view-in declining to adhere to the "preclusive rule" that a union member could not challenge the validity of an existing discriminatory clause when the practice had ex- isted for more than 6 months prior to the filing of charges. NLRB v. Actors' Equity Assn., 644 F.2d 939 (2d Cir. 1981), enfg. 247 NLRB 1193 (1980). It is also clear that maintenance as well as enforcement of a discriminatory clause during the 10(b) period is un- lawful. The Board has stated: It is well settled that . . . mere maintenance of a contract clause discriminatory on its face, without evidence of discriminatory enforcement or imple- mentation, is sufficient to find a violation of Section 8(b)(1)(A) and (2) and Section 8(a)(3) and (1) of the Act. Even though the violation found in Dairylea5 involved enforcement as well as maintenance of a superseniority clause, the Board's findings that a clause not limited on its face to layoff and recall is presumptively illegal clearly implies that mere main- tenance of such a clause is violative of the Act. The burden of rebuting the Dairylea presumption rests on the party asserting the legality of the provision and requires such party to produce evidence that a superseniority provision extending beyond layoff and recall has a proper aim and, therefore, is justi- fied . . A.P.A. Transport Corp, supra, 239 NLRB at 1407-1408. Proceeding to applicable law governing the substan- tive allegations of the complaint, the Board has recently revised the law pertaining to superseniority. Whereas the Board in Dairylea sanctioned superseniority for stewards limited to layoff and recall because this furthered effec- tive administration of the contract at the plant level, in later decisions it held that superseniority could lawfully be granted to other union representatives in certain cir- cumstances. More recently, however, the Board has re- formulated the law as follows: 5 Dairylea Cooperative, 219 NLRB 656 (1975), enfd 531 F 2d 1162 (2d Cir 1976) ARVIN INDUSTRIES 767 As the Board stated in Dairylea, superseniority dis- criminates 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 discrim- ination. In our view , the balance struck in Dairylea was correct. We will find unlawful those grants of superseniority extending beyond those employees responsible for grievance processing and on-the-job contract ad- ministration. We will find lawful only those super- seniority provisions limited to employees who, as agents of the union , must be on the job to accom- plish their duties directly related to administering the collective-bargaining agreement . [Gulton Elec- tra-Voice, supra, 266 NLRB at 408, 409.] Gulton involved a contract clause granting supersen- iority with respect to layoff and rehiring to a union fi- nancial secretary and a recording secretary . The financial secretary had a monthly meeting at the plant with man- agement, and was engaged in monitoring the dues with- holding program. She was not involved in processing grievances . The Board concluded that her administration of the dues withholding plan did "not approach the level of responsibility . . . necessary to help stabilize Respond- ents' labor relations" (id. at 409). The recording secre- tary was not involved in grievance processing or con- tract administration. The Board held that by maintenance and enforcement of the superseniority provision in the contract, and by discriminating against employees who would not have been affected absent supersenionty for the financial secretary , both the Employer and the Union had violated the Act. In another case, the recording sec- retary's only duty requiring her presence at the plant was maintenance of a union bulletin board, and the Board held that by applying superseniority to her and by thereby effecting layoffs of other employees out of order of seniority, the employer and the union violated the Act. Niagara Machine & Tool Works, 267 NLRB 661 (1983). On similar facts, the Board reached the same conclu- sion with regard to a contract granting superseniority for layoffs to a financial secretary and a recording secretary in Auto Workers Local 561 , supra. This contract also had a clause preventing the displacement of named union of- ficials from the shift on which they were employed, by employees having greater natural seniority ("shift main- tenance"). Although this clause was not utilized to dis- place any individuals from the shifts on which they were employed, the Board held that maintenance of the shift protection portion of the agreement, as it applied to the financial secretary , the recording secretary, and other union officials, was unlawful. There is no significant factual difference between these cases and the case at bar, with the exception that it was the shift preference clause rather than the layoff clause that was utilized in the case of the charging party. The principles are the same , however. I therefore conclude that, by maintenance-of-contract clauses granting super- seniority for layoff and shift preference to Respondent Union's financial secretary and recording secretary, who are not responsible for grievance processing and who do not perform on-the-job duties directly related to adminis- tration of the collective-bargaining agreement , Respond- ent Company thereby discriminated against employees in violation of Section 8(a)(3) and (1) of the Act, and Re- spondent Union thereby violated Section 8(b)(2) and (1)(A). I further find that by applying the aforesaid shift pref- erence clause to various union officials, including the re- cording secretary who had less seniority than the Charg- ing Party, so as to transfer the latter from the day shift to the third shift on September 4, 1983 , Respondents re- spectively violated the same sections of the Act set forth above. In accordance with the findings above, I make the fol- lowing CONCLUSIONS OF LAW 1. Arvin Automotive , a Division of Arvin Industries, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Automobile, Aerospace & Agricultural Im- plement Workers Union , Local 759 is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By maintaining clauses in their collective -bargaining agreement according superseniority for layoff and shift preference to Respondent Union's financial secretary and recording secretary, Respondent Company and Respond- ent Union have engaged in , and are engaging in, unfair labor practices within the meaning of Sections 8(a)(3) and (1) and 8(b)(1)(A) and (2) of the Act, respectively. 4. By enforcing the aforesaid shift -preference clause so as to transfer to the day-shift union officials including the recording secretary, who had less natural seniority than Gene Donald Cobb, thereby causing the transfer of the latter from the day shift to the third shift on September 4, 1983 , Respondents engaged in further violations of the foregoing sections of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices , I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. Having found that the superseniority clauses in dispute herein are unlawful , I shall recommend that Respondent Union be ordered to cease and desist from maintaining, enforcing, or otherwise giving effect to such clauses in its bargaining agreement with Respondent Company. I shall also recommend that Respondent Company cease and desist from maintaining, enforcing, or otherwise giving effect to such clauses in its bargaining agreement with Respondent Union. Having also found that the unlawful shift -preference clause was enforced so as to transfer Gene Donald Cobb 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from the day shift to the night shift, I shall recommend that Respondent Company be ordered to offer Cobb forthwith a transfer back to the day shift, and that Re- spondent Union be ordered to notify Respondent Com- pany in writing that it has no objection to such transfer. I shall also recommend that Respondent Company be or- dered to remove from its records any reference to its un- lawful transfer of Cobb to the third shift, and notify him in writing that this has been done and that evidence of the unlawful transfer will not be used as a basis for future transfers or other personnel action against him. In- asmuch as there is no evidence that Cobb suffered any loss of earnings because of his discriminatory transfer, and in fact received an hourly increase, a make whole order would not be appropriate. Finally, I shall recommend that Respondent Company be ordered to cease and desist in any like or related matter from interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, and that Respondent Union be ordered to cease and desist from in any like or related manner re- straining or coercing employees in the exercise of the rights guaranteed employees by Section 7 of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER A. Respondent Company, Arvin Automotive, a Divi- sion of Arvin Industries, Inc, Fayette, Alabama, its offi- cers, agents, successors, and assigns, shall 1, Cease and desist from (a) Maintaining, enforcing, or otherwise giving effect to collective-bargaining provisions with Respondent Union United Automobile, Aerospace & Agricultural Implement Workers Union, Local 759, according the Union's financial secretary or recording secretary any form of superseniority. (b) Discriminating against any employees by transfer- ring them from one shift to another, to make room for the Union's financial secretary or recording secretary, when such employees have greater seniority than has one of the aforementioned union officials. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Forthwith offer Gene Donald Cobb a transfer to the day shift. (b) Remove from its files any reference to the transfer of Gene Donald Cobb to the third shift about September 4, 1983, and notify Cobb in writing that it has done so, and that evidence of such transfer will not be used as the basis for future transfers or other personnel actions against him. (c) Post at its establishment at Fayette, Alabama, copies of the attached notice marked "Appendix A."7 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by Respond- ent Company's authorized representative, shall be posted by Respondent Company immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent Company to ensure that the notices are not al- tered, defaced, or covered by any other material. (d) Post at the same places and under the same condi- tions as set forth in paragraph A,2,(c), as soon as for- warded by the Regional Director, copies of the attached notice marked "Appendix B." (e) Mail signed copies of the attached notice marked "Appendix A" to the Regional Director for Region 10 for posting by Respondent Union. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Company has taken to comply. B. Respondent Union, United Automobile, Aerospace & Agricultural Implement Workers Union, Local 759, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining, enforcing, or otherwise giving effect to collective-bargaining provisions with Respondent Company, Arvin Automotive, a Division of Arvin Indus- tries, Inc., according the Union's financial secretary or recording secretary any form of superseniority. (b) Causing or attempting to cause Respondent Com- pany to discriminate against employees in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coerc- ing employees of Respondent Company in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify Respondent Company in writing that it has no objection to the immediate transfer of Gene Donald Cobb to the day shift. (b) Post at its office and meeting halls used by or fre- quented by its members and employees it represents at Respondent Company's Fayette, Alabama facility copies of the attached notice marked "Appendix B."8 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by Respondent Union's authorized representative, shall be posted by Respondent Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members and employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent Union to ensure that the notices are not al- tered, defaced, or covered by any other material. 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ' 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 " 9 See fn 7, supra ARVIN INDUSTRIES 769 (c) Post at the same places and under the same condi- tions as set forth in paragraph B,2,(b), above, as soon as forwarded by the Regional Director, copies of the at- tached notice marked "Appendix A." (d) Mail signed copies of the attached notice marked "Appendix B" to the Regional Director for Region 10 for posting by Respondent Company. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Union has taken to comply WE WILL remove from our files any record of Gene Donald Cobb's unlawful transfer to the third shift, and WE WILL notify him in writing that we have done so and that evidence of this unlawful transfer will not be used as the basis of future transfers or other personnel actions against him. ARVIN AUTOMOTIVE, A DIVISION OF ARVIN INDUSTRIES, INC. APPENDIX B APPENDIX A 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 or- dered us to post and abide by this notice. WE WILL NOT maintain, enforce, or otherwise give effect to any clause in our bargaining agreement with United Automobile, Aerospace & Agricultural Imple- ment Workers Union , Local 759 according the Union's financial secretary or recording secretary any form of su- perseniority. WE WILL NOT discriminate against employees by trans- ferring them from one shift to another to make room for the Union's financial secretary or recording secretary when these employees have greater seniority than those union officials. 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 Gene Donald Cobb immediate transfer to the day shift. NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT maintain, enforce, or otherwise give effect to any clause in our bargaining agreement with Arvin Automotive, a Division of Arvin Industries, Inc., according any form of superseniority to our financial secretary or recording secretary. WE WILL NOT cause or attempt to cause the foregoing Company to discriminate against employees in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of the foregoing Company in the exer- cise of their rights protected by Section 7 of the Act. WE WILL notify the foregoing Company in writing that we have no objection to its immediate transfer of Gene Donald Cobb to the day shift. UNITED AUTOMOBILE, AEROSPACE & AG- RICULTURAL IMPLEMENT WORKERS UNION, LOCAL 759