United States Steel Corp.

1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United States Steel Corporation and John Gray Griffin and John O'Shea United Steelworkers of America and its agent United Steelworkers of America, Local 2210 and John Gray Griffin United Steelworkers of America and its agent United Steelworkers of America, Local 2927 and John O'Shea. Cases 10-CA-19525, 10-CA-19555, 10-CB-4156, and 10-CB-4169 May 23, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On March 30, 1984, Administrative Law Judge Leonard N. Cohen issued the attached decision. Respondent United States Steel Corporation (USS) and the General Counsel filed exceptions and sup- porting briefs. The Respondent Unions filed an an- swering brief as well as cross-exceptions and a brief in support of the cross-exceptions.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and Respondent USS also filed a motion to strike a portion of the Re- spondent Unions' brief and the Respondent Unions filed an opposition to that motion. We deny the motion but we do not rely on the factual alle- gations contained m that portion of the Unions' bnef as a basis for our findings. 2 In sec III,A, par. 6, of his decision, the judge states that August 29, 1983, was the approximate date that International Subdistrict Director E B. Rich sent a letter to Steve Menzel, the superintendent of employee re- lations for Respondent USS' Fairfield works The date of the letter was April 29, 1983, and Rich testified that to the best of his knowledge it was sent that day. In sec III,C, par 1, the judge erroneously states that there is no dis- pute concerning whether any of the three union officials in either local union performs steward or on-the-job contract administration In fact, the Respondent Unions claim that the three officials do perform these func- tions, but we agree with the judge that they do not. The Board has stated that it would "find unlawful those grants of supersemority extending beyond those employees responsible for grievance processing and on-the- job contract administration" Gulton Electro-Voice, Inc. 266 NLRB 406, 409 (1983), enfd. sub nom Electrical Workers IUE Local 900 v. NLRB, 727 F.2d 1184 (D.0 Or 1984) We have considered the evidence in light of the Gulton standard and find that the three union officers are not re- sponsible for grievance processing and on-the-job contract administration and are therefore not entitled to exercise supersenionty. We agree with the judge that the complaint allegations concerning the maintenance of supersenionty provisions contained in Sec. 13H of the two collective-bargaining agreements are not time-barred by Sec. 10(b) of the Act In so doing, we additionally rely on the discussion of Sec. 10(b) and supersemonty provisions set forth in Arvin Automotive, 285 NLRB 753 (1987). For the reasons stated by the Judge, we agree that Griffin's charge concerning the enforcement of the supersemonty clause as to him is not tune-barred by Sec. 10(b) of the Act Although we find it unnecessary to rely on this as a basis for our finding, we note that the charge alleging unlawful enforcement as to Griffin was filed within 6 months of the par- ties' March 1983 reentering into the collective-bargaining agreement con- conclusions as modified, to modify the remedy,3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Company, United States Steel Corporation, Fairfield, Ala- bama, its officers, agents, successors, and assigns, and the Respondent Unions, United Steelworkers of America and its agents United Steelworkers of America, Local 2210, and United Steelworkers of America, Local 2927, their officers, agents, and representatives, shall take the action set forth in the Order. taming the provision which accorded Fmancial Secretary Howard super- seniority 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 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 pnor to January 1, 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) Virginia L. Jordan, Esq., for the General Counsel. Jeffrey E. Beeson, Esq., of Pittsburgh, Pennsylvania, for the Respondent Employer. Jerome A. Cooper, Esq. (Cooper, Mitch & Crawford), of Birmingham, Alabama, for the Respondent Unions. DECISION STATEMENT OF THE CASE LEONARD N. COHEN, Administrative Law Judge. On August 29, 1983, John Gray Griffin filed charges in Case 10-CA-19525 against United States Steel Corporation (USS) and in Case 10-CB-4156 against United Steel- workers of America and its agent United Steelworkers of America, Local 2210 (Respondent International and Re- spondent Local 2210). On September 8, 1983, John O'Shea filed charges in Case 10-CA-19555 against Re- spondent USS and in Case 10-CB-4169 against Respond- ent International and its agent Respondent Local 2927. On October 25, 1983, the Regional Director issued an order consolidating cases and a complaint and notice of hearing. The complaint, which was subsequently amend- ed on November 16, 1983, alleges that in maintaining and enforcing seniority preference clauses in their collective- bargaining agreements according the Local Unions' re- cording secretary, fmancial secretary, and treasurer se- niority preference or superseniority, Respondent USS and Respondent International and its agents Respondents Local 2210 and Local 2927 (Respondent Unions) have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) and Section 8(b)(1)(A) and (2) of the Act, respectively. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- 288 NLRB No. 119 UNITED STATES STEEL CORP. 1075 amine witnesses, to argue orally, and to file briefs. All counsel filed briefs that have been carefully considered. On the entire record of this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Jurisdiction is not in issue. Respondent USS admits, and I find and conclude, that it is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Respondent USS admits, and I find and conclude, that Respondent International, Respondent Local 2210, and Respondent Local 2927, each is, and has been at all times material, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts The material facts are not in dispute. Since approxi- mately 1947, Respondent USS and Respondent Interna- tional and its designated agents Respondent 2210 and Re- spondent 2927 have been parties to a series of separate national collective-bargaining agreements, the most recent of which have as their terms March 1, 1983, to March 1, 1986. These contracts, like each predecessor's contracts over the years, contain the following provi- sions: When a decrease in force continues to the point at which a grievance committeeman would other- wise be laid off, he shall be retained in active em- ployment . . . for the purposes of continuity in the administration of this agreement. . . . The principles set forth in the preceding para- graph shall apply on a plant wide basis to employ- ees who hold any of the following offices in the local union or unions in which the employees of the plant are members; President, Vice President, Re- cording Secretary, Financial Secretary, and Treas- urer. . . . The complaint places in issue the grant of seniority preference or superseniority under each of these con- tracts to the recording secretary, financial secretary, and treasurer of Respondent Local 2210 and Respondent Local 2927 at Respondent USS' Fairfield, Alabama works. Rick Williamson, president of Respondent Local 2210, and Raymond Jimerson, president of Respondent Local 2927, each testified that the only official duties of their recording secretary, financial secretary, and treasurer are as set forth and defined in Respondent International's constitution and the bylaws for local unions as developed 1 Sec. 13—semority, H. Seniority status of grievance committeemen and local union officers by it. 2 None of these duties requires that any of those of- ficials, who were all elected to their respective offices in April 1982, be on the job to adequately perform them. Additionally, none of the officials of either Respondent Local has ever filed a grievance in his or her official ca- pacity as a local union officer. On December 11, 1982, John Griffin, the Charging Party in Cases 10-CA-19525 and 10-CB-4156, was placed on layoff status. If not for the exercise of super- seniority status by Respondent Local 2210's financial sec- retary, Laverne Howard, Griffin, a stores order clerk, would have been able to "roll in" or "bump in" to a new position as a stores receiver. Instead, Howard was per- manently assigned the stores receiver position. On June 27, 1983, Griffin was recalled to fill a temporary vacancy as a stores receiver, and he remained in that position until August 20, 1983, when he was again laid off. Grif- fin has not been recalled since the second layoff of August 1983. At all times since December 11, 1982, Howard has, by virtue of her Union office, remained em- ployed in the stores receiver position. On August 14, 1982, John O'Shea, the Charging Party, in Cases 10-CA-19555 and 10-CB-4169, was laid off from his job as fire patrolman. At the time of this layoff, Sullivan Newton, Respondent Local 2927's treasurer and an individual some 23 years' junior to O'Shea, exercised his superseniority rights and retained his job as fire pa- trolman. O'Shea has not been recalled to work. At all 2 The constitution delineates the responsibilities of these three officials as follows: Duties of Recording Secretary The recording secretary shall record the proceedings of the Local Union in a book kept for that purpose, read all papers and perform such other duties required under this constitution and as the Local Umon may assign. The recording secretary shall also have custody of the local union's seal and shall be responsible for any misuse of the same. Duties of Financial Secretary The financial secretary shall receive all monies due the Local Union and pay the same to the treasurer, from whom the financial secretary shall take a receipt The financial secretary shall also keep accurately the accounts of the Local Union with its members, and shall at all times have the books open for examination by the audit- ing committee . . . The financial secretary shall make out various reports required by the International treasurer and forward such re- ports to the International treasurer in accordance with instructions. The financial secretary shall keep a record of all transfer request forms issued and received. The Duties of Treasurer The treasurer shall receive from the financial secretary all monies collected by the financial secretary and shall deposit all monies be- longing to the Local Union in a bank designated by it. . The treasurer shall keep regular and correct accounts of all monies received and paid and report at each meeting the balance of cash shown by the last report It shall be the duty of the president, financial secretary, and treas- urer to ensure that the funds and property of Local Union are pre- served, managed, and invested and expended in accordance with the International constitution and the policies of the Local Union bylaws. In discussing the duties of the three named officials, the bylaws of the local unions merely specify in greater detail how the duties set forth above by the International constitution should be performed 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD times since August 1982, Newton has, by virtue of his union office, remained employed as a fire patrolman. On or about August 29, 1983, E. B. Rich, Respondent International's subdistrict director, acting on the instruc- tions of Bernard Kleiman, Respondent International's general counsel, sent the following letter to Steve Menzel, superintendent-employee relations for Respond- ent USS' Fairfield works: In light of a recent decision by the National Labor Relations Board, the Union hereby informs you that, notwithstanding the superseniority provisions of the agreement, the union has no objection to the recall from layoff of those affected senior employ- ees who are on lay off as a result of application of the superseniority clause to the treasurer, recording secretary, financial secretary (or other officer in question) of Local Unions 1013, 1131, 1489, 1733, 2122, 2210, 2405, 2927, 3663, and 4203. On June 2, J. Bruce Johnston, chairman of the coordi- nating committee for the steel companies, which includes Respondent USS, responded by letter to Respondent International President Lloyd McBride. In this letter Johnston first stated that the Union's previously commu- nicated position that it had no objection to the recall of the affected employees was neither workable nor accept- able. Johnston then suggested: I submit that the most effective solution to this problem. would be an amendment of the Contracts superseniority provision, eliminating the positions of Recording Secretary, Financial Secretary, and Treasurer from such coverage. . . . Should the Union elect not to amend the existing provisions, as proposed, and also refuse to designate whom it wants protected in each of these situations, this is to notify you that the Companies will not make those designations for the Union, nor assume any liability from this day forward that might con- sequently ensue from your unwillingness to make them. In such event, we have no alternative but to apply the existing provisions as written, retaining at working incumbents of local union offices of Re- cording Secretary, Financial Secretary and Treasur- er. By letter dated July 7, 1983, Respondent International President McBride replied to Johnston's letter. At the outset McBride rejected Johnston's proposed amendment as both unnecessary and unwise. In support of this posi- tion McBride offered three primary reasons for the Union's opposition to a contract amendment that would strip all Local recording secretaries, financial secretaries, and treasurers of their seniority rights: First, since at specific units one or more of the of- ficers in question may well perform on the job func- tions which satisfy the Gulton standard, and since that judgment is best made locally, the blanket amendment you proposed is unwise and goes fur- ther than is necessary. Second, the legal requirements of Gulton are satis- fied by our letter which identifies the officers not entitled to superseniority and waives application of the clause as to those individuals. Should the Board view be overturned or should the Board change its own mind again, the parties would then simply resume enforcement of the clause rather than nego- tiate the matter anew. Third, I am told by our lawyers that one of the arguments against the Board's Gulton ruling is that the contract clause constitutes a waiver of the Act's Section 7 right allegedly violated by superseniority. This argument is based on the Supreme Court's de- cision in Metropolitan Edison and the appeal in Gulton itself makes such a contention. Amending the contract to eliminate superseniority for the offi- cers in question would obviously undercut the con- tract waiver argument. This would prove to be an unwise course should the Union or the Coordinat- ing Committee Steel Companies decide to litigate the Gulton issue in a particular case. McBride then closed by stating: I conclude with an observation. In the wake of Gulton, we have settled a number of NLRB super- seniority charges, including some involving Coordi- nating Committees Steel Companies. Largely be- cause of the points we have outlined in this letter, not one NLRB Regional Director has insisted on a contract amendment to the superseniority clause. Each has accepted a letter containing the same non- enforcement language you find objectionable. Since those who enforce the statute find no fault with it, I am not inclined to alter our approach. B. Contentions of the Parties The General Counsel contends that because neither the recording secretary, the financial secretary, nor the treasurer of either Respondent Local 2210 or Respondent Local 2927 is in any way responsible for either process- ing of grievances or on-the-job contract administration, the granting to each of superseniority is unlawful under the Board's holding in Gulton Electro-Voice, Inc., 266 NLRB 406 (1983). She argues that the parties to the two contracts in question at all times maintained and enforced these unlawfully broad clauses and, thus, the charges challenging their validity are not time-barred. Addition- ally, as to the situation involving Respondent Local 2210, the General Counsel contends that the laying off of Charging Party Griffin in August 1983, although at the same time continuing to afford Respondent Local 2210's Financial Secretary Howard superseniority, constitutes an unlawful application within the 10(b) period warrant- ing a backpay remedial order running against both Re- spondent USS and Respondent International and its agent Respondent Local 2210 for Griffm. Respondent USS contends that both charges against it are time-barred by the 6-month statute of limitation in Section 10(b). In this regard Respondent argues that there was no enforcement or application of the supersen- iority provisions within the 10(b) period and that the UNITED STATES STEEL CORP. 1077 mere existence or maintenance of superseniority provi- sions does not constitute an unfair labor practice. Included as part of its contention that there was no en- forcement or application of the superseniority clause against Griffin, Respondent USS argues that Griffin was not in fact laid off in August 1983 because of the applica- tion of superseniority to a junior employee. In this regard Respondent points to the evidence developed at the hearing that as of August 20, 1983, another unit em- ployee, R. W. Hareford, was more senior than Griffin and was already on layoff status. Thus, Respondent USS argues that if Howard had not been working by virtue of her superseniority Hareford and not Griffin would have been recalled to take Howard's permanent position. Respondent USS then argues that in entering into the contracts containing the superseniority provisions, the Respondent Unions waived the Section 7 rights of its members in the area of superseniority and that this waiver was approved by its membership when the con- tracts containing such provisions were ratified. Respondent USS next argues that because the duties of the three local officers satisfied the pre-Gulton standard for supersentimity the new principles as announced in Gulton should not be applied retroactively. Thus, be- cause the contracts containing these clauses were entered into prior to the issuance of the Board's decision, the charges relating to pre-Gulton conduct should be dis- missed. Finally, Respondent USS argues that Subdistrict Di- rector E. .. Rich's April 29 letter stating that Respond- ent Unions had "no objection" to the nonenforcement of certain of the superseniority provisions did not constitute a valid waiver of liability on the Respondent Unions' part. Therefore, in its view, any liability for any violation of the Act should be joint and several between it and Respondent Unions. Respondent Unions join Respondent USS in arguing that the charges challenging the superseniority provisions are time-barred. Further, Respondent Unions join Re- spondent USS in arguing that any Section 7 rights of em- ployees adversely affected by the exercise of the super- seniority provisions had been waived by the parties when they entered into the collective-bargaining agreements. Finally, Respondent Unions argue that Rich's April 29 letter constituted a disclaimer of its continued unlawful participation in the enforcement of the contracts' super- seniority provisions and, therefore, Respondent Unions should be relieved not only of any financial liability but also should have all complaint allegations against them dismissed. C. Conclusions Although the parties may disagree with the correc- tions of the Board's holding in Gulton, there is no dispute here that any of the three union officials in either Local perform steward or other on-the-job contract administra- tion functions. Thus, the conclusion is inescapable that to accord any of them superseniority would be unlawful if appropriately challenged by the timely filing of unfair labor practice charges. 3 In reaching this conclusion, I reject Respondent USS' and Respondent Unions' argu- ments that by entering into the collective-bargaining agreements the Unions waived their members' Section 7 rights. The Board in Gulton itself disposed of this issue when it stated 266 NLRB at 409: Respondent Union contends that its membership de- sires the seniority preference, and there is no evi- dence that the intent of the provision is to encour- age union activity. Irrespective of what contractual benefits Respondent Union indicates its membership wants, our deference to parties' collective-bargain- ing agreements is limited by the boundaries of the Act. Dairylea, supra. Notwithstanding the parties' good intentions, the Act focuses on the effect of dis- crimination. The discriminatory effect of supersen- iority is well established and the parties do not dis- pute that truism. I now turn to the 10(b) issue raised by both Respond- ent USS and Respondent Uniott4 The first issue to be discussed is the effect of ""mitre"*mairitenance as opposed to specific application of preferred seniority provisions. On March 1, 1983, 1 week prior to the issuance by the Board of its seminal decision in Gulton, the parties exe- cuted separate national collective-bargaining agreements covering Respondent USS' salaried clerical and technical employees, and its plant protection employees respective- ly. At all times since March 1 these collective-bargaining agreements, including their provisions according super- seniority to recording secretaries, fmancial secretaries, and treasurers of the involved Locals, have been main- tained in full force and effect. The charges filed by Grif- fin in Cases 10-CA-19525 and 10-CB-4156 were filed within 6 months of March 1, the contract's execution date. The charges filed by O'Shea in Cases 10-CA-19555 and 10-CB-4169 were not. In the very recent case of International Harvester Co., 268 NLRB 966 (1983), the Board concluded that not- withstanding the fact that the agreement containing the preferred seniority provisions was executed more than 6 months prior to the filing of the charges, the Respondent Employer and the Respondent union's maintenance of such provisions violated the Act. "We find that it is not only the application of overly inclusive superseniority provisions which contravenes the Act, but also the very existence of such agreements which discriminates against employees and infringes upon their right to refrain from Union activities." 268 NLRB at 966. Therefore, the com- plaint allegations relating to maintenance of the supersen- iority provisions contained in section 13(h) of the two collective-bargaining agreements are not barred by Sec- tion 10(b) of the Act. I now turn to the 10(b) aspect of the complaint allega- tions regarding the application of such seniority prefer- 3 Respondent USS' argument that Gulton should not be applied retro- actively is totally without merit In rejecting a similar argument in Niaga- ra Machine sk Tool Works, 267 NLRB 661 at fn. 19 (1983), the Board ob- served the new standard enunciated in Gulton was applied immediately therem 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ence provisions in the Griffin affair. Respondent USS, on brief, argues that Griffin's cause of action, if any, could have only accrued on one of two events, either (1) in April 1982, when on the conducting of Respondent Local 2210's elections the officers were granted super- seniority, or (2) at the time of Griffin's December 11, 1982 layoff because of the exercise of superseniority by Respondent Local 2210's financial secretary, Howard. Because both of these events were clearly outside the 6- month limitation period, Respondent argues, there has been no application of the superseniority clause against Griffin. I disagree with this analysis. The complaint allegations based on Griffin's charges do not attack Griffin's initial December layoff nor do they relate to when the officers were elected and took office. Instead, the complaint puts in issue the execution of the contract and Griffin's August 20, 1983 layoff when, for a second time, he was adversely affected by the continuing grant of superseniority to Howard. Griffm filed his charges a mere 9 days after this second layoff. As the Board recently observed in disposing of similar such 10(b) arguments: "It is well established that each act or incident of such enforcement constitutes a reaffir- mance or renewed entering into of the superseniority clause." Harvey Hubble, Inc., 268 NLRB 620 at fn. 8 (1984).4 The next issue to be discussed is the effect, if any, of Rich's April 29 "no objection" letter and the subsequent correspondence on this same subject between Respond- ent USS' agent, Johnston, and Respondent International's president, McBride. As noted above, Respondent Unions contend that this correspondence clearly put Respondent USS on notice that Respondent Unions were waiving their contract rights to protect certain officials from layoff. Respondent USS in urging the rejection of this contention argues that Rich's letter and the subsequent correspondence were nothing more than invalid and un- successful unilateral attempts to modify the existing col- lective-bargaining agreement. In this vein, Respondent USS argues that a specific provision in each collective- bargaining agreement details exactly how and by whom a modification to the collective-bargaining agreement can be made and that this well-established procedure was not followed here. Thus, Respondent USS points out that Rich was not an International officer and, therefore, did not possess the authority to modify express provisions in a collective-bargaining agreement. Further, the subse- 4 As noted, the seniority preference provisions were not under the then existing law unlawful when entered into on March 1, 1983. They only became so after the Board issued Gulton on March 7, 1983. Thus, it ap- pears that a reasonable argument could be advanced that for 10(b) pur- poses, Newton's August and Howard's December 1982 exercising of their supersemority rights that continued without interruption should relate back or otherwise be deemed to have occurred on the date that the main- tenance of supersemonty provisions first became unlawful—March 7, 1983. Under this theory, Griffin would be entitled to ba.ckpay for the period from on or about March 8 until June 27, the date of his recall to fill a temporary vacancy. Because O'Shea did not file his unfair labor practice charges until more than 6 months following the issuance of Gulton, he would still not be entitled under this theory to any backpay. Because the theory was neither encompassed in the complaint nor ad- vanced by either the General Counsel or the Charging Parties, I will not, therefore, treat this question as fully litigated, and I do not pass on this theory's merits. quent efforts of McBride and Johnston to reach an ac- commodation on the issue of superseniority proved un- successful. Therefore, in its view, any notification to it by the Respondent Unions regarding these provisions were of no force and effect. Respondent Unions counter that, for the reasons set forth in those portions of McBride's letter quoted above, it did not wish to modify the superseniority provisions in the collective-bargaining agreements as it was urged to do so by Johnston. Instead, it merely wished to notify the Employer that unless and until the legal questions surrounding Gulton were ultimately resolved in the courts it would not exercise its full contractual rights. The text of Rich's letter was taken substantially verbatim from the Board's own language in Gulton. This fact, as well as Respondent Unions' reasons for not wanting to strike the superseniority provisions from the contract, was made clear to Respondent USS by McBride's letter. Respondent USS chose to ignore Respondent Unions' desires in these matters and continued to maintain and apply the superseniority provisions as if the Board had never issued Gulton. Respondent USS and, to a lesser degree, the General Counsel urge that I reject Respondent Unions' defense and find that the only way Respondent Unions could have avoided fmancial liability for any post-Gulton appli- cation of the unlawful provisions would have been if the Union had followed the contractually mandated proce- dures and agreed to modify the unlawful superseniority provisions themselves. I disagree. To do as urged by Re- spondent USS and the General Counsel would require that Respondent Unions do substantially more than that required of similarly situated respondent unions by the Board in Gulton and its progeny. 5 Accordingly, I find that Respondent USS alone bears the responsibility for making whole any employee adversely affected by How- ard's continued exercise of superseniority. Concluding that Respondent Unions have avoided fi- nancial liability in this matter does not, however, dictate that the complaint allegations against them should be dis- missed in their entirety. Respondent Unions violated the Act by entering into and, at least, for a period of ap- proximately 2 months, maintaining and enforcing unlaw- fully broad seniority preference provisions. The Board vindicates public, not private, rights and the General Counsel is entitled to a remedial order requiring that those found to have violated the Act should post a notice agreeing to cease and desist from such conduct. Finally, I briefly address the argument that because employee Hareford was senior to Griffin, Griffm was not directly harmed by the superseniority accorded to Howard, and thus no backpay remedy should be award- ed to him Again I disagree. The identification of an indi- vidual who may have suffered displacement as a result of an unlawful according of superseniority is a matter more 5 Auto Workers Local 561 (Scova Inc ), 266 NLRB 952 (1983); Design & Mfg. Cmp., 267 NLRB 440 (1983); Niagara Machine & Tool Works, supra; Electrical Workers IUE Local 826 (Otis Elevator), 268 NLRB 180 (1983), Harvey Hubble, Inc., supra; International Harvester Co., supra; Inmoni Corp., 268 NLRB 1442 (1984). UNITED STATES STEEL CORP. 1079 appropriately resolved during the compliance stage of this proceeding.6 Accordingly, in view of the above, I find and con- clude that by maintaining and enforcing superseniority clauses with respect to the financial secretary, the re- cording secretary, and treasurer, .Respondent Unions have, as alleged, violated Section 8(b)(1)(A) and (2) of the Act, and Respondent USS has violated Section 8(a)(1) and (3) of the Act. Furthermore, by according Laverne Howard superseniority under the disputed clause with respect to layoffs and thereby affecting em- ployees who would not have been affected if the collec- tive-bargaining agreement had not accorded such super- seniority, Respondent USS discriminated against employ- ees in violation of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found the superseniority clauses in both con- tracts unlawful, I shall recommend that Respondent Unions cease and desist from maintaining and enforcing such clauses in their collective-bargaining agreements with Respondent USS. I shall also recommend that Re- spondent USS cease and desist from maintaining and en- forcing such clauses in its collective-bargaining agree- ment with Respondent Unions. Having found that the unlawful superseniority clause was so applied to cause the layoff of employees on or about August 20, 1983, who would not have been laid off but for the illegal dis- crimination depriving them of seniority, I shall recom- mend that Respondent USS offer to reinstate any em- ployees who would not have been laid off but for the un- lawful assignment of superseniority to the financial secre- tary of Respondent Local 2210 and that Respondent USS make affected unit employees whole for any loss of earnings they may have sustained as a result of the dis- crimination against them. I shall also recommend that Respondent USS remove from its files any reference to the unlawful layoffs and shall notify the affected employ- ees that this has been done and that the unlawful layoffs will not be used as a basis for future personnel actions against them Backpay shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Also, to remedy in full the effects of Respondent USS' unlawful conduct, Respondent USS' backpay obligation shall run from the effective date of the discrimination against affected unit employees to the time it makes such recall offers. Final- ly, I recommend that Respondent USS cease and desist in any like or related manner from interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, and that Respondent Unions likewise cease and desist from re- straining or coercing employees it represents from exer- cising those same rights. 6 Internanonal Hoivester Co, supra CONCLUSIONS OF LAW 1. Respondent USS is, and has been at all times materi- al, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Respondent International and its agents Respondent Local 2210 and Local 2927 are each a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a seniority clause in their collective-bargaining agreements according each Respondent Local's financial secretary, recording secre- tary, and treasurer superseniority, Respondent USS and Respondent Unions have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act, fespectively, and by discriminating against unit employ- ees when Respondent USS laid off employees who would not have been affected if the collective-bargaining agreement had not accorded Respondent Local 2210's fi- nancial secretary superseniority, Respondent USS en- gaged in further violations of the foregoing sections of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 7 ORDER A. Respondent United States Steel Corporation, Fair- field, Alabama, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Maintaining and enforcing collective-bargaining provisions with Respondent United Steelworkers of America land its agents United Steelworkers of America, Local 2210 and Local 2927 according the Local Union's recording secretaries, financial secretaries, and treasurers superseniority. (b) Discriminating against any employees by laying them off instead of the Local Unions' financial secretar- ies, recording secretaries, or treasurers when such em- ployees have greater seniority in terms of length of ern- ployment than one of the aforementioned union officials. (c) In any like or related manner interfering with, re- straining, or coercing employees 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) Make any unit employee whole for any loss of earnings he or she may have suffered as a result of dis- crimination against him or her, such earnings to be deter- mined in the manner set forth in the remedy section of this decision and offer to reinstate any employees who would not have been laid off but for the unlawful assign- 7 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 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment of superseniority to Respondent Local 2210's finan- cial secretary. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the layoffs of any employees affected by the superseniority as ap- plied to Respondent Local 2210's financial secretary on or about August 20, 1983, and notify them in writing that this has been done and that evidence of the unlawful layoff will not be used as a basis for future personnel ac- tions against them. (d) Post at its facilities in Fairfield, Alabama, copies of the attached notice marked "Appendix A." 8 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by Respondent USS' representative, shall be posted by Respondent USS im- mediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent USS to ensure that the notices are not altered, defaced, or cov- ered by any other material. (e) Post at the same places and under the same condi- tions as set forth in paragraph A,2,(d) above, as soon as forwarded by the Regional Director, copies of the at- tached notices marked "Appendix B" and "Appendix C." (f) Mail signed copies of the attached notice marked "Appendix A" to the Regional Director for posting by Respondent Unions. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent USS has taken to comply. B. Respondent United Steelworkers of America and its agent United Steelworkers of America, Local 2210, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining and enforcing or otherwise giving effect to those clauses in its collective-bargaining agree- ment with Respondent United States Steel Corporation according its recording secretary, financial secretary, and treasurer superseniority with respect to layoffs and recall. (b) In any like or related manner restraining or coerc- ing employees of Respondent United States Steel Corpo- ration in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its office and meeting halls used by or fre- quented by its members and employees it represents at Respondent United States Steel Corporation Fairfield, Alabama facility, copies of the attached notice marked 8 If this Order is enforced by a judgment of a Uruted 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 B."9 Copies of the notice, on forms provided by the Regional Director for Region 10, shall be posted by Respondent Local 2210 after being duly signed by Respondent Local 2210 representatives immediately upon receipt thereof. The foregoing notice shall be main- tained by it for 60 consecutive days after posting in con- spicuous places where notices to the members and em- ployees are customarily posted. Reasonable steps shall be taken by Respondent Local 2210 to ensure that notices are not altered, defaced, or covered by any other materi- al. (b) Post at the same places and under the same condi- tions as set forth in paragraph B,2,(a), above, as soon as forwarded by the Regional Director, copies of the notice marked "Appendix A" (c) Mail signed copies of the attached notice marked "Appendix B" to the Regional Director for posting by Respondent United States Steel Corporation. (d) 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. C. Respondent United Steelworkers of America and its agent United Steelworkers of America, Local 2927, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining and enforcing or otherwise giving effect to those clauses in its collective-bargaining agree- ment with Respondent United States Steel Corporation according its recording secretary, financial secretary, and treasurer superseniority with respect to layoffs and recall. (b) In any like or related manner restraining or coerc- ing employees of Respondent United States Steel Corpo- ration in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its office and meeting halls used by or fre- quented by its members and employees it represents at Respondent United States Steel Corporation Fairfield, Alabama facility, copies of the attached notice marked "Appendix C."" Copies of the notice, on forms provid- ed by the Regional Director for Region 10, shall be posted by Respondent Local 2927 after being duly signed by Respondent Local 2927 representatives immediately upon receipt thereof. The foregoing notice shall be main- tained for 60 consecutive days after posting in conspicu- ous places where notices to members and employees are customarily posted. Reasonable steps shall be taken by Respondent Local 2927 to ensure that the notices are not altered, defaced, or covered by any other material. (b) Post at the same places and under the same condi- tions as set forth in paragraph C,2,(a), above, as soon as forwarded by the Regional Director, copies of the notice marked "Appendix A." (c) Mail signed copies of the attached notice marked "Appendix C" to the Regional Director for posting by Respondent United States Steel Corporation. 9 See fn 8, above. 10 See to 8, above. UNITED STATES STEEL CORP. 1081 (d) 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. APPENDIX A NOTICE To EMPLOYEES PON l'ED 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 and enforce any clause in our collective-bargaining agreements with United Steelwork- ers of America and its agents United Steelworkers of America, Local 2210 and Local 2927 according the Unions' recording secretaries, financial secretaries, and treasurers supersenimity with respect to layoffs and recall. WE WILL NOT discriminate against employees by laying them off instead of the Unions' recording secretar- ies, fmancial secretaries, and/or treasurers when such employees do not, in fact, have top seniority in terms of length of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE wiLL offer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions without prejudice to those who were discriminatorily laid off instead of Local 2210's financial secretary. WE WILL remove from our files any reference to the layoff of any employees affected by the superseniority applied to Local 2210's financial secretary on or about August 20, 1983, and WE WILL notify them in writing that this has been done and that evidence of the unlawful layoff will not be used against them as a basis for future personnel actions against them. UNITED STATES STEEL CORPORATION APPENDIX, B 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 and enforce any clause in our collective-bargaining agreements with United States Steel Corporation according our recording secretary, fi- nancial secretary, and treasurer superseniority with re- spect to layoff and recall. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of their rights pro- tected by Section 7 of the Act. UNITED STEELWORKERS OF AMERICA AND ITS AGENT UNITED STEELWORKERS OF AMERICA, LOCAL 2210 APPENDIX C 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 and enforce any clause in our collective-bargaining agreements with United States Steel Corporation according our recording secretary, fi- nancial secretary, and treasurer superseniority with re- spect to layoff and recall. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights protected by Section 7 of the Act. UNITED STEELWORKERS OF AMERICA AND ITS AGENT UNITED STEELWORKERS OF AMERICA, LOCAL 2927