Teamsters Local 337 (Swift-Eckrich)

National Labor Relations Board - Board Decisions

Apr 30, 1992

307 N.L.R.B. 437 (N.L.R.B. 1992)

437
307 NLRB No. 64
TEAMSTERS LOCAL 337 (SWIFT-ECKRICH)
1 The name of the Respondent has been changed to reflect the new
official name of the International Union.
2 The Respondent filed no exceptions to the judge’s finding that
it violated Sec. 8(b)(1)(A) and (2) by maintaining and enforcing a
seniority clause with the Employer according union stewards super-
seniority for terms and conditions of employment not limited to lay-
off and recall.
3 Charging Party Kurtz acknowledged on cross-examination that,
prior to the negotiation of the 1990–1994 bargaining agreement, the
preshift overtime work that is the subject of his grievance was exclu-
sively performed on a regular basis by packaging utility employees
and that, during the period before the 1990–1994 contract, there
were two distinct positions: packaging-utility and utility relief.
4 Initially, the judge found that the job duties of these positions
‘‘are essentially interchangeable and without meaningful distinc-
tion.’’ He later acknowledged, however, that ‘‘the only meaningful
distinction between the two jobs is that a utility relief [employee]
would not normally participate in pre-shift overtime set-up duties.’’
Local 337, International Brotherhood of Teamsters,
AFL–CIO1 and Ronald L. Kurtz and Swift-
Eckrich, Inc., Party to Contract. Case 7–CB–
8570
April 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBER OVIATT
AND RAUDABAUGH
On September 30, 1991, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified and to adopt the recommended
Order as modified.
The judge found that the Respondent breached its
duty of fair representation in violation of Section
8(b)(1)(A) of the Act by failing and refusing to process
fully the grievance of employee Ronald L. Kurtz, the
Charging Party. The Respondent contends that the
complaint should be dismissed in this respect2 because
its decision not to pursue Kurtz’ grievance over
preshift overtime to arbitration was made in good faith
and was based on rational and substantial reasons. For
the reasons set forth below, we find that the Respond-
ent did not breach its duty of fair representation in vio-
lation of Section 8(b)(1)(A).
Background
The Respondent is the exclusive bargaining rep-
resentative of a unit of production employees at the
Employer’s Quincy, Michigan facility. In February
1990, the Respondent and the Employer completed ne-
gotiations on a collective-bargaining agreement to be
effective from January 21, 1990, through January 23,
1994. The role of packaging department employees
was discussed at these negotiations. It is undisputed
that the regular assignment of preshift overtime in the
packaging department, at least prior to the 1990 nego-
tiations, was given exclusively to employees in a clas-
sification designated ‘‘packaging-utility’’ and that an-
other classification designated ‘‘Packaging-Utility (Re-
lief)’’ (utility relief),3 did not then receive regular as-
signments of preshift overtime. It is also undisputed
that the Employer’s assignment of overtime within a
job classification is determined by seniority in that
classification.
The theory underlying Kurtz’ grievance is that at the
1990 negotiations the classifications of packaging-util-
ity and utility relief were merged into one classifica-
tion, and that Kurtz’ seniority within that classifica-
tion—packaging-utility—was sufficient to entitle him
regularly to perform preshift overtime work. The com-
plaint alleges that the failure to process Kurtz’ griev-
ance fully violated the Act.
Facts
In July 1985 the Employer created the packaging-
utility classification. This new classification was a re-
vision of a job classification formerly known as gen-
eral labor (packaging). Its duties consisted of setup
work and relieving other employees who were on
break. Thereafter, in March 1988, the Employer cre-
ated the new classification of utility relief. At that
time, there were two distinctions between packaging-
utility and utility relief employees. First, packaging-
utility employees regularly performed preshift overtime
setup work in the packaging department and utility re-
lief employees did not regularly perform these duties.4
Second, utility relief employees relieved employees in
both the packaging department and in another depart-
ment—the processing department—whereas packaging-
utility employees relieved only employees in the pack-
aging department. Other than these distinctions, the
employees in these two classifications had the same
job duties.
On February 28, 1990, the Employer posted a job
opening announcement to replace utility relief em-
ployee John Renfrow, who took another position with
the Employer. The Employer’s employee relations
manager, Kathy Steger, testified at the hearing that she
erroneously posted the job announcement as a pack-
aging-utility position (rather than the utility relief posi-
tion that Renfrow had vacated) because she was under
the mistaken impression that the two positions had
been combined at the February 1990 negotiations into
a single packaging-utility classification. Charging Party
Kurtz was the successful bidder for the position. Pack-
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Kurtz had less seniority than packaging-utility employee Ralph
Burger, who also was regularly assigned preshift setup work.
6 Division Superintendent Richard Creighton testified, as did Su-
pervisor Moore and Employee Relations Manager Steger, that the
packaging-utility and utility relief positions were not merged at the
1990 negotiations and that Kurtz was properly treated from the out-
set as a utility relief employee. Additionally, the Respondent sub-
mitted into evidence a written statement from Creighton to Steger,
in response to Kurtz’ grievance. In that statement Creighton ex-
plained that the utility relief classification originally was created to
assist in the Employer’s operation and to protect the incumbent
packaging-utility employees who ‘‘had the original bids.’’ We note,
in this regard, that the General Counsel does not contend that the
creation of the utility relief position as a separate classification in
1988 was in any manner discriminatory or improper.
7 Because the Employer determined that the bid announcement
mistakenly had been posted as a packaging-utility position, it offered
Kurtz an opportunity during the grievance procedure to withdraw his
bid. Kurtz declined to do so.
8 Art. 12 provides for the following step 3 procedure:
Step 3. In the event the Union and Company fail to settle the
grievance in said conference, it shall be referred to arbitration
upon the request of either party. The President and/or Executive
Board of the local Union shall have the sole right to determine
whether or not the grievance is qualified to be submitted for ar-
bitration by the Union.
The Union shall notify the Company in writing of it’s [sic]
intent to submit a grievance to the 337 Grievance Panel within
thirty (30) days of the aforementioned Step 2 conference, for the
purpose of determining the arbitrability of a grievance. This thir-
ty (30) day period may be extended by mutual agreement be-
tween the parties.
aging Department Supervisor Dennis Moore did not
assign preshift setup overtime work to Kurtz, however,
because it was Moore’s understanding that the pack-
aging-utility and utility relief positions still were sepa-
rate classifications. As a result, notwithstanding the po-
sition as posted, Moore effectively treated Kurtz as a
utility relief employee having no preshift setup respon-
sibilities.
On or about April 19, 1990, Kurtz filed a grievance
concerning the Employer’s failure to assign him
preshift, overtime setup work. It is undisputed that
Kurtz had sufficient seniority within his job classifica-
tion to receive preshift overtime assignments if the
classification he occupied was indeed a single merged
packaging-utility position. Thus, Kurtz had greater se-
niority than incumbent packaging-utility employee Jack
Barr, who regularly was assigned preshift setup work.5
Barr was the Respondent’s chief steward at the Em-
ployer’s facility.
The Employer denied Kurtz’ grievance at the initial
steps of the grievance procedure. It did so on the basis
that, consistent with Supervisor Moore’s under-
standing, the positions of packaging-utility and utility
relief had not been merged at the February 1990 nego-
tiations, that Kurtz occupied the position of utility re-
lief, and that the job duties of utility relief did not in-
clude preshift, overtime setup work.6 Under the Em-
ployer’s view, because Kurtz and Barr occupied sepa-
rate positions, and only Barr’s position (packaging-util-
ity) performed preshift setup work, Kurtz’ greater se-
niority did not entitle him to perform preshift, overtime
work in preference to Barr.7
On September 25, 1990, pursuant to article 12 of the
contractual grievance procedure,8 the Respondent con-
ducted a grievance panel meeting to consider whether
to pursue Kurtz’ grievance to arbitration. The pane1
was composed of representatives of the Respondent’s
executive board. The panel considered evidence pre-
sented by all the parties, including Kurtz and the Em-
ployer. Kurtz testified that he was permitted to present
all the relevant evidence on his own behalf that he de-
sired and that he submitted written statements in sup-
port of his grievance. The executive board subse-
quently determined not to pursue Kurtz’ grievance to
arbitration.
Discussion
It is well settled that a union breaches its duty of
fair representation toward employees it represents
when it engages in conduct affecting those employees’
employment conditions which is arbitrary, discrimina-
tory, or in bad faith. Vaca v. Sipes, 386 U.S. 171
(1967). It is also well settled, however, that something
more than mere negligence or the exercise of poor
judgment on the part of the union must be shown in
order to support a finding of arbitrary conduct. Team-
sters Local 692 (Great Western Unifreight), 209
NLRB 446 (1974). Indeed, the Vaca Court noted that,
although a union may not arbitrarily ignore a meri-
torious grievance or process it in a perfunctory fashion,
an employee does not have an absolute right, regard-
less of the provisions of the applicable bargaining
agreement, to have his grievance taken to arbitration.
Vaca, 386 U.S. at 190–191.
The judge’s conclusion that the Respondent
breached its duty of fair representation toward Kurtz
by arbitrarily failing to arbitrate his grievance stemmed
from his finding that Kurtz’ grievance was meritorious.
Contrary to the judge, we are not convinced that
Kurtz’ grievance was meritorious. Nor do we subscribe
to the judge’s reasoning that the Respondent’s failure
to pursue the grievance to arbitration was based on its
fear that a favorable decision would adversely affect
Chief Steward Barr.
In finding that Kurtz’ grievance was meritorious, the
judge specifically found that the Respondent and the
Employer had agreed to merge the packaging-utility
and the utility relief positions at the February 1990 ne-
gotiations. The judge found, therefore, that Kurtz’
greater seniority within that classification as compared
to Barr entitled Kurtz to perform preshift overtime as-
signments over Barr, as contended in the grievance.
The judge based his conclusion as to the grievance’s
merits on the following factors.
439TEAMSTERS LOCAL 337 (SWIFT-ECKRICH)
9 Steward Montgomery’s credited testimony regarding the ratifica-
tion meeting also does not support the judge’s conclusion. Although
Montgomery testified that Gallup’s question concerned where the
‘‘relief’’ employees ‘‘would fit in,’’ Montgomery testified that the
response to the question was that ‘‘they would be used the same’’
as the packaging-utility employees.
10 Steward Archer supported Kurtz’ grievance but did not testify
at the hearing because of his unavailability caused by active military
duty overseas.
11 Hilliard participated in the 1990 negotiations and testified that
the parties did not agree at the negotiations to merge the packaging-
utility and utility relief positions. Hilliard also testified that at the
time of his initial participation in processing Kurtz’ grievance at a
step-two meeting in June 1990, he reviewed a rough draft of the
1990–1994 agreement, which did not contain the utility relief classi-
fication. Hilliard testified that he agreed with the Employer to
change the draft to include the utility relief position consistent with
his recollection of the 1990 negotiations. Steger testified that the
utility relief classification erroneously had been omitted from the
rough draft because the office staff, in setting forth the terms of the
1990–1994 contract, used the expiring 1987–1990 contract as a
frame of reference for purposes of carrying over unchanged provi-
sions. Because the utility relief position was not created until 1988,
midterm of the 1987–1990 contract, that contract did not set forth
the utility relief classification. Accordingly, it appears that the rough
draft of the 1990–1994 contract erroneously failed to reflect the ex-
istence of the utility relief classification because of an error in com-
piling the terms of that contract as to provisions carried over from
the expiring 1987–1990 contract, and not because the utility relief
position was eliminated at the 1990 negotiations, as the judge found.
First, the judge credited the testimony of James
Montgomery, a steward and a member of the Respond-
ent’s negotiating team. Montgomery’s credited testi-
mony, however, does not establish that the packaging-
utility and utility relief positions had been ‘‘merged’’
into one classification. Rather, Montgomery’s testi-
mony essentially is consistent with the testimony of
Richard Creighton, the Respondent’s division super-
intendent. Creighton testified that the parties simply
agreed that utility relief employees would no longer re-
lieve employees in the processing department. Con-
sistent with Creighton, Montgomery testified that the
parties agreed that utility relief employees would no
longer go into the processing department and, in that
regard, that their duties would be similar to packaging-
utility employees. Montgomery testified that the Em-
ployer said ‘‘there would be no more cross-transferring
of departments. The relief people, the best I can recall,
would be used the same as utility people.’’ (Emphasis
added.) Thus, Montgomery did not testify, as the judge
found, that the parties agreed to eliminate the utility
relief position and merge it into one packaging-utility
position. Montgomery simply testified that the discus-
sion at negotiations on this matter concerned whether
utility relief employees would go into the processing
department; and it was determined that, like the pack-
aging-utility employees, they would not.
Second, the judge found that the Respondent,
through Chief Steward Barr, specifically told unit em-
ployees at a February 25, 1990 contract-ratification
meeting that the Employer and the Respondent had
agreed to merge the two job classifications. It is undis-
puted that the relevant discussion on this issue arose
from a question asked of Barr by utility relief em-
ployee Shirley Gallup. Gallup’s credited testimony,
however, does not support the judge’s conclusion.
Thus, Gallup testified at the hearing that her question
to Barr at the ratification meeting was whether ‘‘gen-
eral labor and utility would be classified as the same.’’
Gallup testified specifically that she did not use the
term ‘‘utility relief’’ in her question to Barr. Accord-
ingly, it appears from Gallup’s testimony that the ques-
tion to Barr only concerned the former distinction be-
tween packaging-utility and its previous designation as
general labor.9
Next, the judge found that the classifications had
been merged based on the initial posting of the posi-
tion as packaging-utility and the understanding of sev-
eral of the Employer’s representatives, at that time,
that the utility relief position no longer existed. In our
view, this evidence does not establish that the positions
were, in fact, merged. Other representatives of the Em-
ployer, including Division Superintendent Creighton
and Supervisor Moore, were of the view that the posi-
tions had not been merged; and Steger, who posted the
job bid, later concluded that she had erroneously post-
ed the opening as packaging-utility in the mistaken be-
lief that the positions had been merged. At most, it is
fair to say that there was some confusion on this ques-
tion and that there was an initial disagreement within
management. However, it is also clear that there was
confusion and disagreement within the Respondent’s
ranks as well. Thus, Steward Montgomery and Dean
Archer were of the view that Kurtz’ grievance was
meritorious,10 while Business Representative Bud Hill-
iard and Chief Steward Barr were of the view that the
positions had not been merged.11
Finally, the judge found that the Respondent
impermissibly took Kurtz’ grievance out of the normal
grievance-arbitration machinery and that Hilliard and
the Respondent failed to assist or represent Kurtz at
the grievance-panel meeting. Contrary to the judge’s
finding, the parties’ bargaining agreement itself specifi-
cally provided for presentation of a grievance to this
grievance panel. Indeed, Kurtz testified that the griev-
ance panel was available and had been used in the
past. Further, as the grievance panel consists of rep-
resentatives of the Respondent’s executive board and
appears to be essentially a union factfinding procedure,
the role of the Respondent’s representatives in this
process is not identical to the role of a union as an ad-
vocate in representing a grievant at arbitration, as the
judge implied. Moreover, as Kurtz himself testified, he
was permitted to present on his behalf all the evidence
he thought was relevant.
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 As noted, the Respondent filed no exceptions to the judge’s
finding that it unlawfully maintained and enforced a superseniority
provision not limited to layoff and recall. There is no evidence what-
soever that this provision bore any relationship to the Employer’s
failure to assign preshift overtime work to Kurtz or to the Respond-
ent’s processing of Kurtz’ grievance.
1 All following dates are in 1990 unless otherwise indicated.
In sum, the bare fact that the Employer interpreted
the 1990 negotiations and the resulting contract in a
manner favorable to the interest of Respondent’s chief
steward does not, by itself, establish that the Respond-
ent’s eventual concurrence with that interpretation was
undertaken in bad faith or in an arbitrary manner. Our
review of the record convinces us that the Respondent
did not arbitrarily fail to process a meritorious griev-
ance or process a grievance in a perfunctory manner
or in bad faith. Rather, it appears that the merits of
Kurtz’ grievance were debatable at best, that the Re-
spondent processed the grievance through customary
channels, and that it rationally decided that the griev-
ance was not worthy of arbitration. In these cir-
cumstances, we find that the Respondent did not
breach its duty of fair representation in violation of
Section 8(b)(1)(A).12
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
337, International Brotherhood of Teamsters, AFL–
CIO, Quincy, Michigan, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order
as modified.
1. Delete paragraph 1(b) and substitute the following
for paragraph 1(c).
‘‘(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
2. Delete paragraph 2(a) and reletter the subsequent
paragraphs.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
WE WILL NOT maintain, enforce, or otherwise give
effect to those clauses in our collective-bargaining
agreements with Swift-Eckrich, Inc., that accord union
stewards superseniority with respect to terms and con-
ditions of employment other than layoff and recall.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their right to
engage in or refrain from engaging in the activities
guaranteed by Section 7 of the National Labor Rela-
tions Act.
LOCAL 337, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, AFL–CIO
Mary Beth Onacki, Esq., for the General Counsel.
George R. Geller, Esq., of Farmington Hills, Michigan, for
the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Coldwater, Michigan, on May 30, 1991.
Briefs subsequently were filed by the General Counsel and
the Respondent.
The proceeding is based on a charge filed December 17,
1990,1 by Ronald L. Kurtz, an individual. The Regional Di-
rector’s complaint filed February 20, 1991, alleges that Re-
spondent Local 337, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL–
CIO (Respondent or Local 337) has failed and refused, under
the grievance-arbitration provision of its collective-bargaining
agreement with Swift-Ekrich, Inc., of Quincy, Michigan, to
process a grievance filed by Kurtz concerning the assignment
of preshift overtime, because a favorable decision on Kurtz’
grievance would adversely affect the amount of preshift
overtime assigned to Respondent’s chief steward, in violation
of Section 8(b)(1)(A) of the Act. The complaint also alleges
that Respondent has maintained a ‘‘Steward’s Seniority’’
clause in its collective-bargaining agreement with Swift
which grants superseniority to union stewards for purposes
other than layoff and recall, in violation of Section
8(b)(1)(A) and (2) of the Act and it requests a ‘‘make-
whole’’ remedy.
On review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a labor organization within the meaning
of Section 2(5) of the Act and it has had a collective-bar-
gaining history with Swift-Eckrich, Inc., a manufacturer and
distributor of meat products in Quincy, Michigan, that annu-
ally ships goods and materials valued in excess of $50,000
directly to points outside of Michigan. I find that the cir-
cumstances meet the Board’s jurisdictional standards and that
it effectuates the policy of the Act to exercise jurisdiction in
a case of this nature.
441TEAMSTERS LOCAL 337 (SWIFT-ECKRICH)
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent and Swift-Eckrich held negotiations for their
subsequently effective 1991–1994 collective-bargaining
agreement during February 1990. During these negotiations,
Respondent and Swift agreed that the employees holding the
job classification of ‘‘Packaging-Utility (Relief),’’ who at the
time were working in both the packaging and processing de-
partments of the plant, would no longer work in the proc-
essing department. It also appears that Respondent and Swift
further discussed that the utility-relief employee would be
merged into the ‘‘Packaging-Utility’’ job classification.
During the February 25, 1990 contract ratification meeting,
when asked by then utility-relief employee Shirley Gallup if
the utility-relief employees would be included in an upcom-
ing job evaluation program, Respondent, through its agent,
chief union steward Jack Barr, replied that the utility-relief
employees would be classified as utility employees and
would be included in the job evaluation program.
After the contract was ratified, Kurtz bid on a job de-
scribed on the bid sheet as ‘‘Packaging Utility.’’ Because he
wanted to confirm that the bid was for a utility job and not
utility-relief in accordance with the parties agreement to
merge the two job classifications, Kurtz asked two company
representatives, Kathy Steger, employee relations manager,
and Janice Riester, Steger’s secretary, if the job bid was
posted correctly. Both confirmed the bid to be a utility job
posting and stated their understanding that the utility-relief
position no longer existed.
Kurtz received the utility job in March 1990 and, about 2
weeks later, requested to work preshift overtime as a utility
employee in the packaging-utility department. At the time of
Kurtz’ request, chief steward Barr was working preshift over-
time in the packaging utility department as a utility em-
ployee; however, preshift overtime is awarded to employees
based on job seniority and qualifications and Kurtz has more
seniority than Barr. The record also shows that Kurtz per-
forms the same job duties and has frequently interchanged
job duties with Barr.
Near the time of Kurtz’ request to work preshift overtime,
Barr told Kurtz that he had arranged with Swift to keep his
job separate from the other utility employees in the pack-
aging department. Although Manager Steger and Plant Super-
intendent Tom Dykehouse told Kurtz that no such agreement
had been made and said that if Kurtz has more seniority than
Barr then he was entitled to the preshift overtime assignment,
Kurtz’ request to work preshift overtime was denied.
On or about April 19, Kurtz filed a grievance over the de-
nial. This grievance was denied at the first step and Kurtz
appealed to the second step. At the second-step meeting on
or about June 7, 1990, Kurtz and Respondent’s agent, Busi-
ness Representative Bud Hilliard, reviewed a draft contract
copy which admittedly contained no reference to the utility-
relief job classifications. Hilliard admittedly could have made
a Local 337 determination on Kurtz’ grievance at that meet-
ing, however, because Chief Steward Barr was involved,
Hilliard suggested that the grievance be taken to a special
panel hearing at the Local 337 union hall in Detroit. Re-
spondent, through it representative, Steger, then agreed in
Kurtz’ presence that the utility-relief job classification would
thereafter be added to the contract (despite the parties’ appar-
ent previous agreement to merge the utility and utility-relief
job classifications).
Thereafter, on September 25, a panel hearing was held in
Detroit at the Local 337 union hall. The panel was comprised
of representatives of the local union executive board. At the
panel meeting, Respondent Agent Hilliard refused to answer
Kurtz’ questions concerning events which took place at the
previous second-step meeting, specifically those relating to
Hilliard’s contract review of the job classifications and sub-
sequent agreement to include the utility-relief job in the con-
tract. The panel subsequently sent Kurtz a written denial of
his grievance.
Otherwise, it is undisputed that article 14, section 14.06 of
the collective-bargaining agreement between Respondent and
Swift-Eckrich provides as follows:
Stewards Seniority. Stewards shall be granted superior
seniority for all purposes including layoff, rehire and
shift preference if such is required by the Local Union
provided the Steward has the ability to perform the
work.
III. DISCUSSION
The Respondent admits that the ‘‘Stewards seniority’’
clause in the collective-bargaining agreement is violative of
the Act. Respondent’s counsel asserted in his opening state-
ment and asserts again on brief that this provision has been
rescinded. The fact asserted, however, is not a matter of
record. No stipulation regarding this matter was agreed to
and, despite counsel’s assertions that this matter would be
proven, no probative evidence was introduced that would
show if or when this violative provision actually was deleted
from the agreement. Otherwise, Respondent represents that
the provision was changed after and in response to the
issuance of the complaint and therefore it is apparent that the
‘‘Steward’s seniority’’ clause had not been rescinded when
the alleged violation pertaining to the Charging Party’s griev-
ance occurred.
On this record, the clause in dispute is shown to have been
in effect at all pertinent times and it is clear that super-
seniority clauses which are not on their face limited to layoff
and recall are presumptively unlawful. See Dairylea Cooper-
ative, 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (2d Cir.
1976), and, accordingly, I find that Respondent is shown to
have violated Section 8(b)(1)(A) and (2) of the Act in this
respect, as alleged.
In an 8(b)(1)(A) case of this nature, where the union is al-
leged to have breached its duty of fair presentation with re-
gard to the processing of an employee’s grievance, the Gen-
eral Counsel has an initial burden to establish that the em-
ployee’s grievance was not clearly frivolous in order to be
entitled to a provisional make-whole remedy. If the General
Counsel establishes that nexus between the union’s unlawful
conduct and the remedy, the burden of proof shifts to the
union to establish that the grievance was not meritorious.
Rubber Workers Local 250 (Mack-Wayne), 290 NLRB 817
(1988). The Board further said that it would apply these rules
to all cases where the union violates Section 8(b)(1)(A) by
failing to properly process an employee’s grievance and it
overruled any prior decisions that might conflict with that
decision.
Here, the General Counsel has presented evidence, through
the credible testimony of James Montgomery (who was a
union steward and part of the negotiating team), which
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Steward Archer signed and filed Kurtz’ grievance report (G.C.
Exh. 5). He also wrote and signed two other documents (G.C. Exhs.
3 and 6) addressed ‘‘To whom it may concern,’’ which purport to
be his description of these pertinent events. It otherwise was estab-
lished that at the time of the hearing he had been called to active
duty in the military and was stationed overseas in connection with
the Persian Gulf crises. The receipt of these exhibits into evidence
is not challenged in brief and I otherwise find that Archer was prop-
erly shown to be unavailable, and I conclude the documents are in-
herently reliable and properly admissible.
shows that Respondent and Swift-Eckrich agreed to merge
the job classifications during the February 1990 contract ne-
gotiations. Also by admissions attributable to Respondent
through its stewards Montgomery and Dean Archer, and the
testimony of Charging Party Kurtz and employee Shirley
Gallup, Respondent reiterated its agreement with Swift that
the job classifications were merged at the February 25, 1990
contract ratification meeting.2
Several company supervisors, including Steger, Reister,
and Dykehouse, also initially stated to Kurtz their under-
standing of the merge, the job classifications, and the job bid
sheet under which Kurtz obtained his position listing the job
vacancy as ‘‘Packaging-Utility.’’ Moreover, according to
Kurtz and Union Steward Archer, Respondent’s agent, Hill-
iard, agreed with Swift representative Steger at the second-
step grievance meeting to separate the job classifications, an
action which would not have been necessary had the job
classification merger not occurred.
Otherwise, the General Counsel’s witnesses have persua-
sively shown that the job duties involved in Packaging-Util-
ity and Utility Relief are essentially interchangeable and
without meaningful distinction.
The Company’s own documentation describes the pack-
aging-utility duties as follows:
Handles trash and tears down, secures hooks on the
K.S.I. conveyor and substitutes when unexpected absen-
teeism occurs within the plant. Assists in department
clean up, good housekeeping and sanitation and may be
assigned to any job in the plant.
This was the job description Kurtz bid on and was awarded.
The utility ‘‘relief’’ duties, created prior to the contract’s
last negotiations, were the same except that they did not
‘‘normally’’ perform daily preshift setup tasks (such as pre-
paring a handcleaning preparation) which tasks necessarily
require overtime because they start before each regular shift
starts. The packaging ‘‘relief’’ people previously were re-
quired to substitute in the semiskilled hot dog packaging job
in the processing department and this function was discussed
and admittedly eliminated during negotiations.
Thus, in substance, the only meaningful distinction be-
tween the two jobs is that a utility relief would not normally
participate in preshift overtime setup duties.
Despite the company representatives subsequent dis-
claimers, it is clear that Steger, the Company’s employee re-
lations manager, believed the positions were the same when
she acted on the posting and it was not until a contrary posi-
tion was taken by Division Superintendent Crieghton, after
the grievance was filed, that she took the position that she
had made a mistake. The Company thereafter asserted that
the position Kurtz bid on and was awarded should have been
a relief position which would have put him in a different
classification than union steward Barr and thereby eliminated
his seniority over Barr for purposes of bidding for preshift
overtime.
It is clear that Kurtz had seniority over chief steward Barr
and that as a practical matter they had identical and inter-
changeable job duties, there is little question that Kurtz’ re-
quest to work preshift overtime had apparent validity and
that his grievance appeared to be meritorious. The evidence
also indicates that Respondent made an agreement to merge
the job classifications during negotiation but that after Re-
spondent declined to further process Kurtz’ grievance be-
cause a favorable decision would have adversely affected the
amount of preshift overtime assigned to chief steward Barr.
Business Agent Hilliard refused to make a decision on Kurtz’
grievance at the second-step grievance meeting and sug-
gested that the grievance go before a special panel of Local
337 business representatives because of Chief Steward Barr’s
involvement.
A union’s right to act as the exclusive representative of the
employee unit carries a corresponding duty on the union to
‘‘serve the interests all members without hostility or dis-
crimination, to exercise its discretion with good faith and
honesty and to eschew arbitrary conduct.’’ NLRB v. Oper-
ating Engineers Local 139, 796 F.2d 985, 992 (7th Cir.
1986), and cases cited therein. Here, Respondent took Kurtz’
grievance out of the normal grievance-arbitration procedure
and treated it differently.
Moreover, when the matter proceeded to the special De-
troit panel the union representatives did nothing to assist or
represent Kurtz and, in fact, Union Agent Hilliard declined
to respond to two questions that Kurtz referred to him during
the meeting.
In summation, I find that Union Agent Hilliard changed
his initial interpretation of the involved job description, ac-
cepted, without question, an agreement with the employee
based on its chief steward’s objection and the fact that the
chief steward’s apparent domination of preshift overtime
would be adversely affected by a ruling in the Charging Par-
ty’s favor.
Under these circumstances, the Union has deprived an em-
ployee it represents from overtime opportunities and it has
failed to demonstrate that its actions, or failures to act, were
for the benefit of the bargaining unit as a whole. The Union
accepted a charging company interpretation that favored the
interest of its chief steward, incidentally affected by an ad-
mittedly illegal steward’s seniority provision that was in ef-
fect in the collective-bargaining agreement and the Union,
thereby abdicated the Union’s responsibility to the Charging
Party and other employees. See Electrical Workers IBEW
Local 26, 264 NLRB 251 (1982). Accordingly, I conclude
that the General Counsel has shown that the Respondent’s
actions in these respects have violated Section 8(b)(1)(A) of
the Act, as alleged.
The General Counsel also has presented sufficient evi-
dence to show that Kurtz’ grievance was not clearly frivo-
lous. The Respondent Union has failed to show it made an
effort to investigate or pursue the favorable information
available from other stewards such as Archer and Montgom-
ery. Moreover, it otherwise appears that from an objective
standpoint there is no difference in the positions (the hourly
pay rate was not different and was not a factor). As noted
443TEAMSTERS LOCAL 337 (SWIFT-ECKRICH)
3 Under New Horizons, interest is 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.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 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
National 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.’’
the only different factor is the regular assignment of preshift
duties, the very subject of the overtime opportunity dispute.
I therefore also find that the grievance had merit and should
have been pursued in a nondiscriminatory manner by the Re-
spondent. Accordingly, the General Counsel has met his
overall burden under Mack-Wayne, supra, and I find that a
make-whole remedy is justified.
CONCLUSIONS OF LAW
1. Respondent Local 337, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of Amer-
ica, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
2. Swift-Eckrich, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. Respondent and the Employer have a collective-bar-
gaining agreement and it will effectuate the purposes of the
Act to assert jurisdiction herein
4. By failing and refusing to fully process the grievance
of employee Ronald L. Kurtz in the interest of the unit mem-
bership as a whole, the Respondent Union breached its duty
of fair representation in violation of Section 8(b)(1)(A) of the
Act.
5. By maintaining and enforcing a seniority clause with
Swift-Eckrich, Inc., according union stewards superseniority
for terms and conditions of employment not limited to layoff
and recall, Respondent Union has engaged in, and is engag-
ing in, unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
REMEDY
Having found that the Respondent Union has engaged in
unfair labor practices in violation of the Act, it will be rec-
ommended that it be ordered to cease and desist therefore
and that it take certain affirmative action to effectuate the
policies of the Act.
Inasmuch as it is found that the steward superseniority
clause in dispute is unlawful, it is ordered that Respondent
Union cease and desist from maintaining and enforcing such
clause in its bargaining agreement with Swift-Eckrich, Inc.
Because the record shows that Ronald L. Kurtz was denied
participation in overtime work he was entitled to on the basis
of his position and seniority because of Respondent’s failure
and refusal to fully process his grievance, he is entitled to
a make-whole remedy for reimbursement of backpay for any
loss of overtime earnings he may have suffered by payment
to him a sum of money equal to that which he normally
would have earned from the date of the grievance to the date
of resolution of this matter, in accordance with the method
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987),3 otherwise, I find it unnecessary to
recommend issuance of a broad compliance order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Local 337, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of Amer-
ica, AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining, enforcing, or otherwise giving effect to
those clauses in its collective-bargaining agreements with
Swift-Eckrich, Inc., that accord union stewards superseniority
with respect to terms and conditions of employment other
than layoff and recall.
(b) Failing in its duty to fairly represent all employees by
arbitrarily, and without lawful and legitimate reason, failing
or refusing to fully process grievances in the interest of unit
membership as a whole or otherwise discriminate against
employees.
(c) Interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act in any
like or related manner.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Make Ronald L. Kurtz whole for any loss of overtime
earnings he may have suffered as a result of having failed
to properly represent his interest in the manner set forth in
the remedy section of this decision and otherwise pursue his
grievance in good faith with all due diligence.
(b) Post at its business offices, meeting halls, and all
places where notices to members customarily are posted cop-
ies of the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
thereafter. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.