Mine Workers District 23 (Peabody Coal)

MINE WORKERS DISTRICT 23 (PEABODY COAL) 77 District 23, United Mine Workers of America and Dale Martin and Billy Cardwell Cases 9-CB- 6408 and 9-CB-6474 March 7, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 6, 1986, Administrative Law Judge David L Evans issued the attached decision The General Counsel filed exceptions i and a sup- porting brief, and the Respondent filed an answer- ing 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent did not violate Section 8(b)(2) of the Act with respect to Peabody Coal Company's failure to recall laid-off employees Cardwell, Brown, Carver, Humphrey, Jennings, and Stewart The judge also found that the Respondent did not violate Section 8(b)(1)(A) of the Act with respect to its refusal to process Cardwell's grievance concerning his disagreement with Peabody's method of computing his seniority for recall purposes We adopt the judge's findings regarding these employees The judge also found that the Respondent did not violate Section 8(b)(2) with respect to Peabody's failure to recall laid-off employee Dale Martin Regarding Martin, we re verse the judge and find that a violation of Section 8(b)(2) was established The General Counsel contended that the Re- spondent unlawfully caused, or attempted to cause, Peabody Coal Company to refuse to recall Martin because he worked for a nonunion company The judge rejected this contention because he errone- ously concluded that the Respondent did not cause, or attempt to cause, discrimination within the meaning of Section 8(b)(2) 2 We begin with a brief summary of the relevant facts The Respondent is a district of the United ' The General Counsels request that the Order include a visitatorial provision is denied as being unnecessary in this case 2 The judge also erred when he suggested that Peabody Coal Compa ny and the United Mine Workers of America should have been included as named respondents in this proceeding See e g Boilermakers Local 37 (Delta Maintenance) 272 NLRB 326 330 ( 1984) (the employer was not joined as a party) Electrical Workers IUE Local 617 (Westinghouse Elec tric) 266 NLRB 804 (1983) (the international union was not joined as a party) Mine Workers of America, and its geographical ju risdiction includes several counties of western Ken- tucky Peabody Coal Company is engaged in the business of coal production throughout the United States and, in particular, operates several mines lo cated within the geographical jurisdiction of the Respondent At all times material, Peabody and the Respondent have operated under the National Bitu- minous Coal Wage Agreement of 1984 (the BCOA contract) During the hearing, the Respondent amended its answer to the consolidated complaint and admitted the complaint allegation that it is the exclusive bargaining representative of "all produc- tion and maintenance employees employed by [Peabody] at its various coal mining and coal prep aration locations" and that it has maintained in effect and enforced the BCOA contract As more fully described by the judge, Dale Martin has worked at various times at mines locat ed within the geographical jurisdiction of the Re spondent On December 31, 1985, he was laid off from Peabody's Alston surface mine Under article 17(h) of the BCOA contract, Martin was eligible, according to his seniority, for recall to any Pea- body mine within the Respondents geographical jurisdiction On January 6, 1986, Martin met with Michael Turner, Peabody's personnel representative, to complete a panel form used for recall purposes On the panel form, Peabody had listed Martin's senior- ity as 23 years of service, but Martin claimed that the figure should have been 35 years based on his prior employment at the Homestead Mine, which was located in the Respondent's geographical juris diction and which was acquired by Peabody in 1956 Peabody, however, did not count Martin's Homestead Mine employment because employees at the mine were not represented by the Respond- ent when Martin worked there The record reflects that seniority credit was granted in the event the employee worked pursuant to a UMWA contract for an employer later acquired by Peabody Sometime later in January 1986, Martin ques- tioned the Respondent's representative, Benny Dukes, about this matter concerning his seniority Dukes concurred with Turner's explanation and stated that Martin was not entitled to be credited with his Homestead time There is no dispute that if Martin had been cred- ited with his Homestead time he would have been placed higher on the recall list and that Peabody's method of computing Martin's seniority followed Peabody's and the Respondent's interpretation of article 17(h) of the BCOA contract The record also shows that if Martin had been credited with all 293 NLRB No 7 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his company seniority he would have been recalled by Peabody 3 We agree with the judge's comment that this method of seniority computation used by Peabody and the Respondent "smacks of an unlawful grant of recall preference, or superseniority, because of prior union affiliation " See, e g , Whiting Milk Corp, 145 NLRB 1035 (1964), enf denied 342 F 2d 8 (1st Cir 1965), Teamsters Local 480 (Potter Freight), 167 NLRB 920 (1967), enfd 409 F 2d 610 (6th Cir 1969) See also Stage Employees IATSE Local 659 (MPO-TV), 197 NLRB 1187 (1972) The judge, however, found no violation of Section 8(b)(2) had occurred because he failed to take into account the Respondent's admission that it has maintained in effect and has enforced the BCOA contract, in particular article 17(h) as interpreted above Maintaining and enforcing a contractual provision which accords preference to employees based on union considerations can cause, or be an attempt to cause, discrimination within the meaning of Section 8(b)(2) See, e g , Operating Engineers Local 132 (National Engineering), 266 NLRB 977, 981 (1983) Accordingly, we find that the General Counsel has shown that the Respondent violated Section 8(b)(2) with respect to Martin's recall rights and Peabody's failure to recall him REMEDY Having found that the Respondent has violated Section 8(b)(2) of the Act, we shall order it to cease and desist and to take certain affirmative action, including making whole Dale Martin with backpay computed on a quarterly basis as pre- scribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest to be computed in the manner prescribed in New Horizons for the Retarded 4 ORDER The National Labor Relations Board orders that the Respondent, District 23, United Mine Workers of America, Madisonville, Kentucky, its officers, agents, and representatives, shall 3 The judge found that laid off employees Cardwell Humphrey Brown aid Stewart each knew of four or five employees with less com panywide seniority than they had who were working at Peabody mines within the Respondents geographical jurisdiction The record shows that Cardwell the most senior of this group would have had 26 years of companywide seniority if he had been credited with his non District 23 service Martin however had 35 years of District 23 seniority if his Homestead Mine service is credited It follows that Martin would have been recalled by Peabody if he had been credited with all his company seniority 4 283 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 US C § 6621 Interest on amounts accrued prior 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) 1 Cease and desist from causing, or attempting to cause, an employer to refuse to recall a laid off employee by maintaining and g.ving effect to a contract provision which requires discrimination against employees, in terms of their seniority credit, because they worked for a nonunion compa- ny later acquired by the employer 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Make whole Dale Martin for any loss of earnings or other benefits he may have suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the deci Sion (b) Notify Peabody Coal Company, in writing, with a copy to Dale Martin, that it has no objec- tion to the employment of Martin, and that it will cease interpreting article 17(h) of the 1984 BCOA contract, which pertains to the panel rights of laid off employees for purposes of recall in a manner which discriminates against employees, in terms of their seniority credit, because they worked for a nonunion company later acquired by Peabody Coal Company (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix "5 Copies of the notice, on forms provided by the Re gional Director for Region 9, 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 the notice for posting by Peabody Coal Company, if willing, at all places where no tices 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 6 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 COLrt of Appeals Enforcing an Order of the National Labor Relations Board MINE WORKERS DISTRICT 23 (PEABODY COAL) 79 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT cause, or attempt to cause, an em ployer to refuse to recall a laid off employee by maintaining and giving effect to a contract provi- sion which requires discrimination against employ- ees, in terms of their seniority credit, because they worked for a nonunion company later acquired by the employer WE WILL make whole Dale Martin for any loss of earnings and other benefits, with interest, result ing from Peabody Coal Company's refusal to recall him from layoff status On the entire record and my observation of the de meanor of the witnesses, and after careful consideration of the briefs filed by Respondent and General Counsel I make the following FINDINGS OF FACT I JURISDICTION At all times material the Employer a Delaware corpo ration has been engaged in the business of coal produc tion in various States of the United States, involved here are Peabody mines in the vicinity of Mddisonville and Centertown, Kentucky During the 12 months preceding issuance of the complaint, which is a representative period the Employer in the course and conduct of its Kentucky business operations sold and shipped products goods and materials valued in excess of $50,000 directly to purchasers located at points outside the State of Ken tucky Therefore, the Employer is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED DISTRICT 23, UNITED MINE WORK- ERS OF AMERICA Bruce H Meizlish, for the General Counsel C Terry Earle (Earle Baird & Russell), of Greenville, Kentucky for the Respondent DAVID L EVANS, Administrative Law Judge This matter was tried before me on 9 July 1986 in Madison ville, Kentucky The complaint alleges that District 23, United Mine Workers of American (Respondent), has committed certain violations of the National Labor Rela tions Act (the Act) Said complaint is based on charges filed by Dale Martin and Billy Cardwell, individuals, in Cases 9-CB-6408 and 9-CB-6474 respectively The former charge was filed on 16 January 1986 and the latter charge was filed on 21 April 1986 The employer involved is Peabody Coal Company (the Employer or Peabody) The complaint alleges that Respondent, in vio lation of Section 8(b)(2) of the Act has caused or at tempted to cause Peabody to refuse to recall several named employees, including Martin and Cardwell from layoff because the employees were members of and had worked in other union districts outside Respondent s district and for reasons other than said employees failure to tender periodic dues and initiation fees uniformly re quired as a condition of acquiring or retaining member ship in Respondent " The complaint further alleges that Respondent is the statutory representative of Peabody's employees, including Cardwell, but that since on or about 8 January 1986 Respondent has refused to process a grievance filed by Cardwell over his seniority and recall rights with Peabody The complaint alleges that this refusal to process Cardwell's grievance by Respond ent violated Section 8(b)(1)(A) Act Respondent filed an answer admitting jurisdiction but denying the commis sion of any unfair labor practices Respondent Union is now and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Facts The essential facts are not in dispute Respondent is one of several districts of the United Mine Workers of America (UMWA) Its geographical jurisdiction includes several counties of western Kentucky At all times mate rial, Respondent and Peabody have operated under the terms of an agreement between the Bituminous Coal Op erators Association, Inc (BCOA) and the UMWA By its terms the agreement is effective 28 September 1984 to 31 January 1988 Since the fall of 1985, Martin and Cardwell and their fellow employees Elbert Brown Bill Carver Lester Humphrey, Nathel Jennings and Howard Stewart have been on layoff status from Peabody mines in Respond ent's geographical jurisdiction They have been placed on a recall roster, or panel of employees awaiting recall Each of these employees, except Martin, worked for Peabody at mines in other geographical jurisdictions of the UMWA before they were employed at the mines from which they were laid off in 1985 Martin did not work for Peabody in other districts, but he did previous ly work for another employer in Respondent's territorial jurisdiction That employer did not recognize the UMWA at the time Martin worked there Peabody, at some point in the past, purchased that employer's mine Peabody has not given Martin credit for the time worked with that other employer, however, Peabody would have given Martin credit for that work experience if, at the time Martin worked at that other mine, the prior employer had recognized the UMWA If Peabody had given Martin credit for his experience with that 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other employer, and if Peabody had given the other em ployees credit for time worked outside District 23 s geo graphical jurisdiction which it has not done each em ployee would be placed higher on the recall list or panel for future recall to any of Peabody s mines in Dis tract 23 s geographical jurisdiction Peabody s method of seniority computation and Re spondent s responsibility for that method of computation, are the core issues in this case The contract between the National Bituminous Coal Operators Association and the United Mine Workers of America provides in relevant part Section (c) Layoff Procedure In all cases where the working force is to be re duced or realigned management shall meet with the mine committee at least 24 hours in advance and review the available jobs and the individuals to be laid off, retained or realigned Within five (5) days after an Employee is notified that he is to be laid off, he must fill out a standard ized form and submit it to mine management On this form, the laid off Employee shall list (1) his years of service at the mine (2) his years of service with the Employer, (3) his previous mining experi ence with other Employers and the years of service with each, and (4) the jobs he is able to perform and for which he wishes to be recalled Additional ly the Employee may also list, on the standardized form (5) the mines of his Employer within the UMWA district on whose panel he wishes his name to be placed (6) his choice of the mines of his Em ployer located in one additional geographically con tiguous UMWA district on whose panel he wishes his name to be placed Section (d) Panels Employees who are idle because of a reduction in the working force shall be placed on a panel from which they shall be returned to employment on the basis of seniority as outlined in section (a) A panel member shall be considered for every job which he has listed on his layoff form as one to which he wishes to be recalled Section (h) Recall of Persons on Layoff Status When a job or training vacancy at a mine exists which is not filled by Employees within the active working force or from the mine panel the panel custodians will review the list of Employees on the panel from other mines and the Employer shall recall to employment Employees on layoff status in the following order (1) If there are no Employees on the mine panel with the ability to perform the work of the job then, the Employer shall recall the senior Employee who has such ability from the Employers other mines within the same UMWA distract who has re quested his name be placed on the panel at that mine and has listed the job to be filled as one for which he wishes to be recalled (length of service with an Employer at a mine for purposes of this provision includes total years of service with the Employer within the UMWA district) (2) If there are no Employees on the mine panel or the District Employer panel, who have the abili ty to perform the work of the job, then the Em ployer shall recall the senior Employee from the Employers other mines outside the UMWA Dis tact where the mine is located who has such ability and is entitled under Section (c)(6) and has request ed his name to be placed on the panel at that mine and has listed the job to be filled as one for which he wishes to be recalled (length of service with the Employer at the mine for purposes of this provision includes total years of service with the Employer) Signatory companies and coal producing drat lions thereof, and wholly owned and controlled coal producing subsidiaries and wholly owned and controlled coal producing affiliates, shall be treated as one and the same Employer for panel rights pur poses Michael Turner is personnel representative for Pea body Coal Turner testified that, pursuant to the 1984 BOCA UMWA agreement including specifically the ]an guage quoted above, when miners are laid off they com plete forms entitled BCOA UMWA Standardized Panel Form On each of these forms the employer involved in this case Peabody, fills in blanks calling for the follow ing information employee s name social security number mine at which employee was laid off, UMWA district number of that mine seniority date at the mine at which the employee was laid off, the date of the layoff length of service with present employer in UMWA Dist - total length of service with the employer who is laying him off, and the job title when the employ ee was laid off Below this information the employee lists the jobs he has the ability to perform and wishes to be recalled to The form has a second page on which are listed the names of mines of the employer in District 23 and contiguous UMWA districts (No 11 in Indiana No 17 in Illinois No 14 in Missouri) The laid off employees circle the named mines to which they wish their panel sheets to be sent so that they can possibly be recalled to those mines A copy of the panel sheets are provided to the UMWA Districts indicated Benny Dukes who is an executive board member of Respondent testified that there are three panels used in the process The first is the mine panel Employees who are laid off from a particular mine are placed on this panel, and they have recall preference over all other em ployees If all employees who were on the mine panel are working (or have refused recall) the employees on the district panel the second panel are called in order of their seniority within the district If job needs are not filled from the mine panel or the district panel jobs are to be filled on a third panel, which is called the contig uous district panel That panel is compiled on the basis of total company seniority, and employees are placed there if they are laid off from mines in the contiguous UMWA districts and have requested their Standardized Panel Form(s) be sent to mines which are recalling em ployees After these three panels are exhausted the em MINE WORKERS DISTRICT 23 (PEABODY COAL) 81 ployer may transfer an employee from a noncontiguous district or hire new employees There is no dispute that this procedure is required by the BCOA UMWA contract as quoted above, and it is how Peabody has conducted recalls Specific examples of the effect of recall procedures were given by employees who testified at the hearing Martin worked for Sinclair Coal company s Homestead Mine which is in the geographical jurisdiction of Dis trict 23, from 1950 to 1955 In 1956 the mine was pur chased by Peabody and operated for 1 year before it closed and Martin was laid off Martin testified that he was not a member of the UMWA during these 6 years On 16 September 1960 Martin became employed by Pea body at its Vogue Mine in District 23, Martin became a member of the UMWA at the same time Martin worked at the Vogue Mine until March 1977 when he was laid off In April 1977 Martin was employed by Peabody at its Alston surface mine Martin worked there until 31 December 1985 when he was laid off On 6 January Martin went to the Alston surface mine to sign the corn pany panel Martin met with Turner who handed him his panel form On the form Turner had written that Martin had 23 years of service with present employer in UMWA District 23 Martin testified that he told Turner that he should have 351 years because his seniority should begin with his Homestead Mine employment Martin further testified that Turner said I in sorry, but you can t use that old Homestead [seniority] any longer It was nonunion Martin testified that he asked whose decision that was and Turner replied District 23 ' Turner testified that Martin argued that his Homestead time should count for purposes of recall rights because the Alston Mine had given him that credit when he was recalled from layoff from the Vogue Mine, and that therefore he was entitled to the full credit as past prac tice Turner testified that he told Martin that the time spent at Homestead would not count because it was not within the District, and Martin replied that he would file a grievance over the matter Benny Dukes, as district executive board member of Respondent has responsibility for processing grievances for the Respondent under the BCOA agreement quoted above Dukes testified that in January Martin approached him and reported that he had been in Turner s office and Turner had told him that he could not use his Home stead time Dukes concurred telling Martin that if an employee's prior work history is not under the BCOA agreement it does not count for District wide panel rights purposes Dukes further, credibly testified that he offered to write the International president of the UMWA to get an interpretation of the BCOA agreement and Martin replied no that he was going to the NLRB " Charging Party Cardwell testified without contradic tion, that he had worked for 26 years in mines located in Districts 20 and 23 of the UMWA He further testified without contradiction that Peabody has given him se mority credit for recall within District 23 only for 12 of 1 UMWA contracts have also provided that employees continue to accrue seniority while on panels awaiting recall those 26 years because only 12 of those years were in Peabody mines in District 23 or in other employer s mines located in District 23 which were under contract with the Union which were subsequently acquired by Peabody Employees Lester Humphrey Elbert Lane Brown, and Harold Stewart also testified to work histories which involved experience in District 23 and districts other than District 23 Like Cardwell, each of these employ ees as reflected by their panel sheets which were re ceived in evidence, received credit for recall in District 23 only for the time worked in Peabody s District 23 mines Cardwell filed a grievance over the Peabody s failure to credit him with non District 23 service Cardwell tes tified that the grievance was filed in early January, after he was laid off from the Alston surface mine On 14 Jan uary he was told at a local union meeting, by the local president and members of the union grievance commit tee, that he had no case under the contract but he could pursue the matter on his own by getting a private attorney On 28 January Cardwell approached Dukes and complained about the committee's failure to process his grievance Cardwell testified without contradiction, that Dukes told him that he had no grievance because of the provisions of the contract which Dukes then pro ceeded to read to Cardwell Specifically Dukes read Cardwell section (h), paragraph (1) as quoted above It is further undisputed that Cardwell has received no fur ther action on his grievance after Dukes refusal on 28 January B Analysis and Conclusions The complaint alleges that since the date of their lay offs, 8 November Respondent has sought to cause, and has caused Peabody to refuse to recall Brown, Carver Humphrey, Jennings and Stewart It further alleges that since the date of their layoffs 31 December Respondent has attempted to cause, and has caused Peabody to refuse to recall Martin and Cardwell The complaint al leges that Respondents conduct toward Brown, Carver Humphrey, Jennings, Stewart and Cardwell was engaged in because those employees were members of and had worked in other union districts The complaint further alleges that Respondent has attempted to cause and caused, Peabody to refuse to recall Martin because Martin did not have prior employment with employers who were parties to collective bargaining agreements with Respondent All of this conduct by Respondent, the complaint alleges violated Section 8(b)(1)(A) and (2) of the Act Section 8(b)(1)(A) makes it an unfair labor practice under the Act for a labor organization to restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act Except for the additional allega tion that Respondent has unlawfully refused to process the grievance of Cardwell there is no contention by the General Counsel that Respondents conduct independent ly violated Section 8(b)(1)(A) Section 8(b)(2) makes it an unfair labor practice for a labor organization to cause, or attempt to cause, an em 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer to discriminate against an employee in violation of Section 8(a)(3) Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate against an em ployee in order to encourage or discourage membership in any labor organization 2 The ranking of employees on a recall list and employ ment of employees with less seniority may, in some cases, be evidence of discrimination but, in this case, the issues remain Does Peabody s method of counting se niority by districts of the UMWA constitute discriinina tion which violates Section 8(a)(3), and, if so, what is Respondents responsibility for it9 General Counsel has established that Peabody has re fused to credit its employees with seniority for purposes of recall within the one district with time spent working for Peabody in another district This practice has placed Brown, Carver, Humphrey, Jennings, Stewart, and Card well in lower positions on Peabody s seniority recall lists than if Peabody had credited all employees with all years, in all locations, that they had worked for Pea body The General Counsel has further established that Peabody has granted, in effect, supersenionty for time spent working in mines of other employers if (a) the other employers mines were in the same UMWA district as the Peabody mine which is recalling employees (b) the other employers recognized the UMWA at the time the Peabody employee (who is seeking recall to a Pea body mine) was working at those other employers mines, and (c) Peabody has since acquired the other em ployers' mines This practice has caused Martin to be placed lower on Peabody s recall seniority lists than if Peabody had given all employees credit for all time worked in all mines, which have been purchased by Pea body in a given UMWA district whether the mine was union at the time the employee worked there, or not The General Counsel contends that both practices by Peabody within the geographical jurisdiction of District 23 constitute unfair labor practices by District 23 the only Respondent named Counsel for the General Counsel, in his brief does not say how, by Peabody s practices, Respondent caused or attempted to cause discrimination against the named em ployees There are no alleged threats or inducements to either Peabody or the employees There were no com munications to Peabody that those who had become members of UMWA in one district should be given pref erence to those who had become members of the UMWA in another district 3 and there was no commune cation to Peabody that a group of favored members should be given preference over any other group of em ployees' The General Counsel appears to contend that 2 It should be noted that there is no evidence actual causation other than the testimony of Cardwell Humphrey Brown and Stewart that they each knew of four or five employees (who were named by the wit nesses) who were then working at Peabody mines located in the geo graphical jurisdiction of District 23 and that those working employees had less companywide seniority than they This testimony was hearsay as to what seniority other employees had however there were no objet bons and the testimony is accepted as true for purposes of this decision 3 This failure of evidence distinguishes the con'tructton industry hiring hall cases cited by the General Counsel This factor distinguishes the merged unit cases cited by the Gener at Counsel Peabody s recall practices are inherently, unlawfully, dis criminatory and, somehow, Respondent which is but one of many districts of the UMWA, is responsible for the ultimate effect on the employees named in the com plaint Peabody s refusal to count, for purposes of recall, time worked for Peabody outside the district in which a recall is being conducted is analogous to the situation in which an employer with several plants throughout the country agrees with the national body of a union that employees who work at one of its plants will not accrue seniority, for purposes of recall, at any other of its plants The le gitimacy of such a provision cannot be seriously ques tioned it provides long term job security for employees at the different plants and stabilizes collective bargaining relationships of different locals which represent employ ees at different localities The same objectives are appar ent here Moreover, adoption of the General Counsel s contentions would be an imposition by the Board on the UMWA and Peabody (neither of whom is a party to this proceeding) of a companywide seniority system, a system which that Union and that Employer did not ne gotiate themselves This the Board will not do Peabody s grant of seniority credit for services with other employers presents a somewhat different question Even though it may be required by BCOA UWMA con tract (art XVII, sec (h)(2), as quoted above) the grant appears to be something of a reward for having previ ously worked for another employer who was in the same geographical area as the signatory employer conducting a recall, but only if the other employer has been pur chased by the signatory and if that employer was under contract with the UMWA at the time the employee had worked for that other employer This smacks of an un lawful grant of recall preference or supersenionty be cause of prior union affiliation and perhaps it is unlawful unless a legitimate purpose can be demonstrated (Super seniority is permissible in certain situations for example, certain individuals may be granted superseniority where the grants serve legitimate purposes of stabilizing collec tive bargaining relationships such as grants of supersen iority to those who handle grievances See Dairylea Co operative 219 NLRB 656 (1975), enfd 531 F 2d 1162 (2d Cir 1976) and its progeny) However, Peabody was not named as a respondent and if it had a legitimate reason for contractually granting such superseniority it had no opportunity to present that reason Even if one assumes that there is no legitimate reason for the grant of supersenionty and, further assuming that in 1984 the UMWA demanded that contractual grant of superseniority (as the General Counsels brief hypoth esizes) perhaps the UMWA then violated the Act by making such demands However, the UMWA is not a party to this proceeding either, and it is not accused of violating the Act by executing the agreement in 1984 or by unlawfully maintaining the agreement within the 10(b) limitations period, or by any other conduct In sum the UMWA is not a respondent and it cannot be ordered to do anything by this action, nor may it be re quired to come forward and attempt to justify the grant of superseniority which has affected Martin MINE WORKERS DISTRICT 23 (PEABODY COAL) The only Respondent in this proceeding is District 23 Except for District 23 s refusal to process the grievance of Cardwell, the only conduct of which District 23 is ac cused is agreeing with Peabody s interpretation of the 1984 BCOA UMWA agreement, Dukes told Martin that the company was right and the mine grievance commit tee and Dukes told Cardwell that the company was right, in its interpretations Respondent, District 23, did no more Specifically, it did not tell Peabody to rank Martin below anyone else, and it did not tell Peabody not to recall Martin, or any of the other employees Pea body did what it did because of the contract it (through BCOA) negotiated with the UMWA However, there is no allegation that this contract is facially invalid, and District 23's agreement with Peabody's interpretation of a contract, the validity of which has not been questioned cannot be said to be a cause, or an attempt to cause, dis cnmmation within Section 8(b)(2) of the Act Accord 83 ingly, I shall recommend dismissal of those allegations of the complaint The allegation of improper grievance handling against District 23 must also be dismissed As I have found above, the conduct of the Union is premised solely on the wording of the contract the legitimacy of which has not been questioned Because it is clear that both the Union and the company interpreted the contract to debar the grievance of Cardwell, requiring Respondent to process the grievance would be requiring Respondent to do a useless act This the Board will not do Teamsters Local 59 (New Bedford Seafood), 280 NLRB 1420 (1986) Accordingly, I shall also recommend dismissal of the al legation that Respondent unlawfully refused to process Cardwell s grievance [Recommended Order for dismissal omitted from pub lication ]