Parker-Hannifin Corp., 884 (1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Parker-Hannifin Corporation andCurry Loggains District No. 8, International Association of Machinists and Aerospace Workers and Curry Loggains. Case 13-CA- 15009 and 13-CB-6366

August 30, 1977 DECISION AND ORDER

By MEMBERS JENKINS, PENELLO, AND WALTHER

On November 3, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.

The facts are not in dispute and are fully set out in the Administrative Law Judge's Decision. The case involves the application of the superseniority provisions of Respondents' collective-bargaining agreement.' In November 1975, because of economic reasons, Respondent Employer found it necessary to layoff a number of employees and to require others to step or bump down to lower paying positions. At that time the Employer reduced the number of welders in the group 4 classification from two to one.

Lester Hensley, one of the group 4 welders, was union shop committee chairman with responsibilities for the entire unit similar to those normally associated with the position of steward, including grievance handling and contract negotiation. Charging Party Curry Loggains, the other group 4 welder, had greater actual seniority in both the plant and the classification. However, because of Lester Hensley's position as committee chairman, the Union requested that the superseniority provision of the contract be applied to him, resulting in the Employer's I The pertinent clauses of the collective-bargaining agreement read as follows:

Seniority. The principle of seniority is hereby established to provide a declared policy of right of preference as to lay-off and rehiring, measured by length of continuous service upon the payroll of the company within a plant.

Layoff requirements. In the event of a reduction in force, the last man to enter a job classification shall be the first man to be laid off or step down. Employees shall be laid off or stepped down in accordance with length of service within a classification or as designated below, 231 NLRB No. 164 requiring Curry Loggains to step down to labor grade classification 9 at a reduction in pay from $6.58 to $5.04 per hour.2

The record establishes that Lester Hensley had sufficient actual seniority to remain an active employee and avoid layoff by bumping down to a lower labor classification.

The General Counsel contends and the Administrative Law Judge found that Respondent Union violated Section 8(b)(l)(A) and (2) of the Act and Respondent Employer violated Section 8(a)(l) and (3) of the Act by maintaining and applying a superseniority clause which goes beyond layoff and recall and is contrary to the Board's decision in Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (C.A. 2, 1976). The Administrative Law Judge found that the superseniority clause accorded the union agent the better of two jobs available without legitimate justification relevant to the agent's duties since he would, in any event, remain an active employee in the plant. Because of the superseniority clause, Hensley did receive a substantial economic benefit-somewhat over $3,000 projected on a yearly basis. In fact, the gain is identical to that which an employee would receive using superseniority to get promoted from labor grade 9 to labor grade 4.3 Here, however, superseniority was used, not to obtain promotion, but to prevent demotion. That makes the difference.

In DairyleaCooperativeInc., supra, the Board held that superseniority clauses which operate to keep a union steward on the job are permissible because the steward's functions benefit all unit employees. The governing considerations were stated at 658:

[I]n view of the inherent tendency of super seniority clauses to discriminate against employees for union-related reasons . .. we do find that super seniority clauses which are not on theirface limited to layoff and recall are presumptively unlawful, and that the burden of rebutting that presumption (i.e., establishing justification) rests on the shoulders of the party asserting their legality. [Emphasis supplied.] A superseniority clause which protects a steward from downgrading is more than is strictly necessary to protect a steward from layoff because he could perform his steward functions as long as he remained which shall be the controlling factor where skill and ability to perform the available jobs are relatively equal.

Union shop committeemen. Each shop committeemen shall head the senionty list in his classification providing he has five years seniority.

2 Curry Loggains was a shop committeeman (i.e., steward) but with responsibilities only for his department on his shift. Thus, Hensley benefited from what can be called 'super-superseniority.' 3 No allegation was made that the clause herein would permit this.

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on the job in some capacity. Such strict application of Dairylea, however, ignores the realities of collective-bargaining and the working relationship between employer and employees. The difficulties in negotiating, drafting, and administering a collective-bargaining agreement must of practical necessity permit a degree of flexibility, albeit limited, in the formulation of superseniority clauses. What is involved here is drawing a line between those provisions which are presumptively impermissible and those which are permitted under the Act. We believe that superseniority which, in the event of layoffs or job eliminations, permits a steward to keep his particular job or classification and protects him from downgrading is a reasonable means to achieve the permitted end of keeping him on the job. Under such provisions, the steward does economically benefit, but the gain is incidental to the aim of protecting the steward from layoff. The steward does not get a new gain, but merely maintains his status; he does not initiate the gain, but it results from the employer's economic condition. For these reasons, we find that superseniority which permits a steward to maintain his status (or nearly equivalent status) in the event of a slowdown falls within the Dairylea definition of layoff and recall and is not presumptively unlawful.

The Board has recently held that superseniority provisions similar to the one here are lawful. In Motion Picture Laboratory Technicians, Local 780,

InternationalAlliance of TheatricalStage Employees and Moving PictureOperatorsof the UnitedStates and Canada, AFL-CIO (McGregor-Werner, Inc.), 227

NLRB 558 (1976), the steward, whose shift had been eliminated, used superseniority to laterally bump a more senior employee in the same position on a different shift. The Board found that there was no 'illegality in permitting him to retain his status.' In Hospital Service Plan of New Jersey and MedicalSurgicalPlan of New Jersey, 227 NLRB 585 (1976), the steward, whose job was eliminated, used superseniority to bump a more senior employee with the same job classification. In finding the clause lawful, the Board specifically rejected the contention that 'superseniority may be invoked only to prevent an actual layoff.' The situations in the above cases are legally equivalent to the situation in the instant case-superseniority was used to protect the steward's job status, as well as his tenure on the job.4

For the above reasons, we find that the superseniority provision herein and the manner in which it was applied are lawful and shall accordingly dismiss the complaints in their entirety.

That the events herein are essentially the same is readily apparent if viewed as follows: Committee Chairman Hensley's job was eliminated and he laterally bumped Charging Party Loggains.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaints herein be, and they hereby are, dismissed in their entirety.

MEMBER JENKINS, dissenting:

In Dairylea,5 a majority of this Board recognized that superseniority is discriminatory by its very nature because it benefits certain employees over others solely on the basis of their respective status in a labor organization. At the same time, however, we also recognized that certain forms of union superseniority may serve to benefit the interests of bargaining unit employees generally. With this in mind, we decided in Dairylea not to declare unlawful any particular form of union superseniority but rather to require that justification for the use of such a clause be demonstrated in terms of its overriding benefit to all unit employees. By the same token, the only union superseniority clauses which we were willing to accept as valid on their face were those which served only to protect the layoff and recall right of job stewards and this was because of our recognition of (1) the role the job steward plays in the day-to-day administration of the collective-bargaining agreement; (2) the fact that his performance inures to the benefit of all employees; and (3) the fact that his presence on the job is necessary for such performance.

My colleagues' resolution of the issue presented in this proceeding is a complete departure from the principles laid down in Dairylea. Here, the union superseniority clause was used during the course of a general layoff to prevent the union committee chairman from being forced to take a lower paying job. As a result, an employee with longer actual...