Mechanics Educational Society Local 56 (Revere Copper)

MECHANICS EDUCATIONAL SOCIETY LOCAL 56 (REVERE COPPER) 935 Mechanics Educational Society of America, Local 56, AFL-CIO (Revere Copper Products, Inc., Rome Division) and Norman E. Lince, Jr. Case 3-CB-4843 30 December 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On a charge filed on 8 January 1986 by Norman E. Lince (the Charging Party), the General Coun- sel of the National Labor Relations Board by the Regional Director for Region 3 issued a complaint and notice of hearing on 7 February 1986. The complaint in essence alleges that the Mechanics Educational Society of America, Local 56, AFL- CIO (the Respondent) violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act by maintaining and applying the superseniority provi- sion in its collective-bargaining agreement with Revere Copper Products, Inc, Rome Division (the Employer) so as to result in affording supersenior- ity protection against a steward's displacement.' The Respondent filed an answer to the complaint in which it admitted certain allegations and denied others, including all those charging it with the commission of any unfair labor practices. On 18 April 1986 all parties, including the Gen- eral Counsel, filed a stipulation of facts and a motion to transfer the proceedings to the Board. The parties waived a hearing and an administrative law judge's decision and submitted the case direct- ly to the Board for findings of fact, conclusions of law, and a decision and order. On 25 July 1986 the Board issued an order grant- ing the motion, approving the stipulation, and transferring the proceeding to the Board. ,The Re- spondent and the General Counsel filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Employer is a New York State corporation, whose principal office and place of business is in Rome, New York, where it is engaged in the man- ufacture, sale, and distribution of copper and relat- ' The complaint also alleged that the Employer similarly violated the Act and that both the Respondent and the Employer violated the Act in according supersemority protection to the Respondent's recording secre- tary These matters were settled and are not before us for decision ed products. During the 12 months preceding the stipulation, the Employer sold and distributed at its Rome facility directly to points outside the State of New York products valued in excess of $50,000. We find that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that the Respondent vio- lated Section 8(b)(1)(A) of the Act by restraining and coercing employees in the exercise of their Section 7 rights and Section 8(b)(2) by causing the Employer to discriminate against its employees in violation of Section 8(a)(3) and (1) of the Act. Spe- cifically, the complaint alleges that the Respondent maintained and applied certain contractual super- seniority provisions by refusing to allow Charging Party Lince to exercise his contractual right to dis- place or bump a third-shift steward, notwithstand- ing that Lince had greater seniority and that the steward's protection against bumping was not nec- essary for the steward to remain in his area of rep- resentation. In essence, the complaint alleges that the Respondent maintained and applied an unlaw- fully broad superseniority provision. A. Facts The Respondent and the Employer are parties to a collective-bargaining agreement effective from 4 May 1984 to 30 April 1987. The contract contains the following superseniority provision: Three (3) UNION officers, members of the UNION Committee, and Department Stew- ards, shall have a higher seniority credit during the term of their office than any other employee within this unit in their respective departments. This provision will not be used for the purpose of filling new jobs, vacancies, or promotions other than regular seniority would permit in any other instance, but he will not be displaced by a senior employee. When his regular job no longer exists, he will'be per- mitted to displace the employee with the least seniority on his shift provided he has the im- mediate ability to do the job. In August 1985 the Employer and the Respondent modified this provision by agreeing not to grant su- persemority protection to the position of vice presi- dent. The contract also provides that an employee who is subject to indefinite layoff may replace or bump a worker with less seniority. There are some limitations involving different shifts and depart- 287 NLRB No. 20 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ments that are not applicable in this case. An addi- tional limitation is that in some circumstances the bumping employee must have "the immediate abili- ty" to do the work. Charging Party Lince has been employed by the Employer since 15 August 1968. He is currently the Respondent's vice president In early Novem- ber 1985, Lince was informed that because of per- sonnel reductions he was being bumped from the day or second shift to the third shift. As a result, Lince approached the Employer's plant superin- tendent, William Reese, and asked about exercising his natural seniority to bump a day-shift steward. Reese discussed the matter with the Respondent's shop committee chairman, who told Reese that the Respondent would not consent to the displacement of any officer (other than vice president) steward, or committeeman. Reese accordingly advised Lince that in light of the Respondent's position, Lince could not bump the steward. About a week later, owing to further personnel reductions, Lince was bumped from the shear oper- ator position on the third shift. Lince, who had greater natural seniority than third-shift steward Edward Fabrizio, asked Plant Superintendent Reese about bumping Fabrizio, who occupied the sole "spider wrap" position on the shift. On this occasion Reese suggested that Lince take it up with Industrial Relations Manager Cleary. In early December Lince approached Cleary about this and, about a week later, was advised that he would not be allowed to bump Fabrizio because the con- tract precluded the bumping of stewards.2 In early December employee Richard Verrenti, whose job was abolished, asked Department Super- intendent Edward Kozick to be allowed to use his natural seniority to bump the Respondent's secre- tary. A union committeeman who was present during the discussion told Verrenti he could not because the secretary had superseniority.3 The Re- spondent did not process Verrenti's grievance be- cause it took the position that the contractual su- perseniority provisions precluded bumping covered individuals. As the Respondent's vice president, Lince was aware of the Respondent's position that bumping of individuals covered by the supersenior- 2 At this time there were four other third-shift employees with less se- niority whom Lince could have bumped Fabrizio, however, had insuffi- cient natural seniority to bump an employee in any unit position within his area of representation, but he was able to perform the jobs of four other employees in that area with only minimal training Assuming that needing only minimal training was the equivalent of possessing "immedi- ate ability to do the job," Fabrizio was entitled to bump the least senior of those employees by exercising his superseniority pursuant to art V, sec 8 of the collective-bargaining agreement He could thereby have re- mained on the shift even if he was bumped from the spider wrap job by Lince 3 This matter was settled ity provisions would not be agreed to by the Re- spondent B. The Parties' Contentions The General Counsel contends that the Respond- ent has maintained and applied the contractual su- perseniority provisions to preclude Lince from bumping steward Fabrizio, and that such conduct is unlawful under Electronic Workers IUE Local 663 (Gulton Electro Voice), 276 NLRB 1043 (1985). The General Counsel argues that because Fabrizio could have used his superseniority to bump em- ployees who had less seniority than Lince, super- seniority protection against bumping by Lince was not purely defensive. The General Counsel also contends that the contractual superseniority provi- sion is facially invalid. The Respondent contends that it was not aware of Lince's efforts to bump Fabrizio until the instant unfair labor practice charge was filed, that once it learned about the Board's decision in Gulton, supra, in mid-November 1985, it immediately applied its holding in several instances,4 and that Lince' s alle- gations were a direct result of his personal loss of superseniority. The Respondent argues that had Lince bumped Fabrizio, Fabrizio would have had to invoke offensive superseniority by displacing a senior employee so he could remain in his area of representation. The Respondent argues that as Fa- brizio had the least seniority in his area of repre- sentation, his bumping anyone would have given him a promotion. The Respondent further contends that Lince could have used the grievance and arbi- tration process to resolve the matter.' C. Discussion We agree with the General Counsel that this case is controlled by Gulton, supra, which among other things held that "granting a zone steward protection against bumping from his zone would be defensive in nature and akin to the shift protection found lawful in Scovill."5 (276 NLRB at 1044.) The exercise of superseniority to protect a steward from layoff from his area of representation is consistent with Dairylea Cooperative, 219 NLRB 656 (1975), enfd. sub nom. NLRB v. Teamsters Local 338, 531 F 2d 1162 (2d Cir. 1976), but what is permitted is only the minimal exercise of such protection. Gulton, at footnote 14, specifically overruled prior cases upholding superseniority protection against 4 We note that the Respondent's claims that when it learned about Galion it applied it in various situations, and that it advised Lince in light of Gulton that a steward could be displaced on the job as long as the steward was able to remain in his/her area of representation, are claims not based on the stipulated facts 5 Auto Workers Local 561 (Scovill, Inc), 266 NLRB 952 (1983) MECHANICS EDUCATIONAL SOCIETY LOCAL 56 (REVERE COPPER) 937 bumping that was not necessary to keep the stew- ard in a position where he could perform his stew- ard functions. In other words, purely defensive su- perseniority protection against layoff means that a steward may be afforded superseniority to keep a job, but not necessarily his job, in his area of repre- sentation. The supersemorlty provision of the parties' bar- gaining agreement constitutes a purely defensive provision within the meaning of Gulton insofar as it states that a steward whose job no longer exists "will be permitted to displace the employee with the least seniority on his shift."6 However, the pro- vision clearly offers more than purely defensive su- perseniority protection insofar as its also provides that a steward "will not be displaced by a senior employee." The contract thus contains an overly broad superseniority provision because it protects a steward against any bumping regardless of whether the protection is necessary to keep the steward on the job in his area of 'representation. The mainte- nance of an overly broad superseniority provision is presumptively unlawful. Perfection Automotive Products Corp., 232 NLRB 690 fn. 1 (1977). The Respondent maintains that it is not culpable because it was unaware of the application regard- ing Lince, it did not enforce the contract against Lince, and it changed its position in light of Gulton. First, the stipulation does not support the contention that the Respondent changed its posi- tion. As noted at footnote 4, the evidence offered in the Respondent's brief on this issue is not con- tained in the parties' stipulation of facts. To the contrary, the stipulation contains evidence that the Respondent actively sought to enforce the overly broad contractual provision when Lince earlier at- tempted to bump a day-shift steward and when Verrenti, in early December 1985, attempted to bump the Respondent's secretary. In addition, the Respondent makes no contention that it ever in- formed the Employer of any change or that it sought to negotiate any change with the Employer. Furthermore, although the stipulation fails to show that the Respondent was aware of Lince's attempt to bump Fabrizio or that it actively sought to en- force the contract in this incident, the Respondent was signatory to the contract that prohibited Lince from bumping Fabrizio. Because the Respondent is responsible for the contract and the Employer's ap- plication of it, the Respondent has effectively en- forced an overly broad superseniority provision B Contrast Parker-Hannifin Corp, 231 NLRB 884 (1977), which held that superseniority that permits a steward to keep his particular job is "a reasonable means to achieve the permitted end of keeping him on the job " The case was implicitly overruled in Gulton, supra at In 14, which explicitly overruled similar related cases We specifically overrule Parker- Hannifin through the maintenance of the contract containing such a provision. Further, the Employer's applica- tion was consistent with the position taken by the Respondent in the early November incident involv- ing Lince and the early December incident involv- ing Verrenti. The Respondent also suggests that protecting Fa- brizio against being bumped from the "spider wrap" job by the more senior Lince would some- how constitute a lawful defensive use of supersen- iority because the contract would not permit Fabri- zio to remain on that shift in any of the other posi- tions. The argument proceeds as follows. If Lince had been permitted to bump Fabrizio, Fabrizio would in turn have needed to use his superseniority to bump another third-shift employee, as Fabrizio was the least senior employee on the shift. The Re- spondent suggests that this would constitute an un- lawful "promotion" for Fabrizio and it apparently contends that protecting Fabrizio from being bumped by Lince was therefore the only proper way, under the superseniority clause, to assure that a steward remained on that shift The record, however, does not support this argu- ment. There is no stipulation that the jobs of any of the four other employees would represent a "pro- motion" for Fabrizio; all that is clear is that those jobs were held by more senior employees and that Fabrizio was capable of performing them "with minimal training " Hence, the Respondent has not proved that it was necessary to allow Fabrizio to retain the spider wrap job against the claim of an- other employee (Lince) entitled to it on the grounds of his natural seniority. Protecting a stew- ard against bumping by an employee otherwise en- titled to the job is presumptively unlawful as a job- related discrimination based on union activity that goes beyond layoff and recall 8 The presumption can be rebutted by showing that the particular in- stance, of discrimination is essential to providing a grievance-handler on that shift, but the Respondent has not carried that burden here. Finally the Respondent argues that Lince should have pursued the matter through the grievance and arbitration procedures. Because Lince was aware of the Respondent's position that individuals cov- ' That clause, which is quoted above, states that it "will not be used for the purpose of filling new jobs, vacancies, or promotions other than regular seniority would permit in any other instance", but it also provides that a steward whose job "no longer exists" may displace the least senior shift employee "provided he has the immediate ability to do the job " To the extent that the record contains any ambiguities concerning the neces- sity to protect Fabrizio against Lince's claim in order to keep Fabrizio on the shift, those ambiguities must be construed against the Respondent be- cause it is the party with the burden of justifying the preference based on union status See fn 8, infra B Dairylea Cooperative, 219 NLRB 656, 658 (1975), enfd sub nom NLRB v Teamsters Local 338, 531 F 2d 1162 (2d Cir 1976) 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ered by superseniority could not be bumped, it would have been futile for Lince to file a griev- ance; the Respondent's, as well as the Employer's, interests conflict with Lince's. The Board does not require an employee to use contractual grievance and arbitration procedures in such circumstances. Kansas Meat Packers, 198 NLRB 543 (1972); cf. United Aircraft Corp., 204 NLRB 879 (1972) (the union's conduct did not render the use of grievance and arbitration machinery "unpromising or futile"). Indeed, during the same time frame as Lince's at- tempt to bump Fabrizio, the Respondent refused to process Verrenti's grievance and did so on the basis that the superseniority provision protects against bumping. For the foregoing reasons, we find that the Re- spondent has violated the Act by maintaining an overly broad superseniority provision. We further find that the Respondent has violated the Act by maintaining and effectively enforcing the supersen- iority provision by according Fabrizio supersenior- ity protection against bumping to the detriment of Charging Party Lince. CONCLUSIONS OF LAW 1. Revere Copper Products, Inc., Rome Division is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Mechanics Educational Society of America, Local 56, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and effectively enforcing a su- perseniority provision in its collective-bargaining agreement with the Employer according supersen- iority job protection to stewards that is not re- quired to keep the stewards within their areas of representation, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) and (2) of the Act. 4. By discriminating against Norman E. Lince Jr. by effectively granting job protection supersenior- ity to steward Edward Fabrizio when such protec- tion is not required to keep the steward in his area of representation, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) and (2) of the Act. 5. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices , we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the superseniority provision in issue here is unlawful and shall order the Re- spondent to cease and desist from maintaining or enforcing the superseniority provision to the extent it accords stewards job retention protection not necessary to keep the stewards in their areas of representation. To remedy the discriminatory appli- cation of the provision we shall order the Respond- ent jointly and severally with the Employer9 to make Lince whole for any loss of earnings suffered as a result of the discrimination against him. The backpay due Lince shall be based on the difference in pay between Lince's and Fabrizio's jobs from the time of Lince's request to bump Fabrizio until the date of an offer of Fabrizio's job to Lince. Backpay shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded. i 0 We shall also order the Respondent to notify Lince and the Employer that it has no objections to Lince bumping Fabrizio. ORDER The National Labor Relations Board orders that the Respondent, Mechanics Educational Society of America, Local 56, AFL-CIO, Rome, New York, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining and enforcing a superseniority provision in its collective-bargaining agreement with Revere Copper Products, Inc., Rome Divi- sion, the Employer, according superseniority job protection to stewards that is not required to keep the stewards within their areas of representation. (b) Discriminating against Norman E. Lince Jr. by granting job protection superseniority to stew- ard Edward Fabrizio when such protection is not required to keep the steward in his area of repre- sentation. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Jointly and severally with the Employer make Norman E. Lince Jr. whole for any loss of 4 The stipulation provides for Joint and several backpay liability should the Board find a violation The Employer entered into a settlement agree- ment of which we take official notice The settlement provides that the Employer will jointly and severally with the Union make Lince whole for loss of earnings 10 In accordance with our decision in New Horizons for the Retarded,, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) MECHANICS EDUCATIONAL SOCIETY LOCAL 56 (REVERE COPPER) earnings he may be suffered as a result of the dis- crimination against him in the manner set forth in the remedy section of this decision. (b) Notify the Employer and Norman E. Lince Jr. in writing that it has no objection to Norman E. Lince Jr. bumping steward Edward Fabrizio from his job. (c) Post at its office and meeting hall copies of the attached notice marked "Appendix." " Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted . Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (d) Sign and return to the Regional Director suf- ficient copies of this notice for posting by the Em- ployer, if it is willing, at all places where notices to employees are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. I I If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 939 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT maintain and enforce the super- seniority provision in our collective -bargaining agreement with Revere Copper Products, Inc., Rome Division, according superseniority job pro- tection to stewards that is not required to keep the , stewards within their areas of representation. WE WILL NOT discriminate against Norman E. Lince Jr. by granting job protection superseniority to steward Edward Fabrizio when such protection is not required to keep the steward in his area of representation. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL jointly and severally with the Employ- er make Norman E . Lince Jr. whole, with interest, for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL notify the Employer and Norman E. Lince Jr. in writing that we have no objection to his bumping steward Edward Fabrizio from his job. MECHANICS EDUCATIONAL SOCIETY OF AMERICA, LOCAL 56 , AFL-CIO